Let’s take the issues connected with the outing of Sammy Sosa’s 2003 drug test results one at a time:
— First, the New York Times broke the news on June 16 with a story stating that Sosa had tested positive “according to lawyers with knowledge of the drug-testing results from that year.”
Who was the source? Well, only three entities are supposed to have knowledge of the test results: Major League Baseball as represented by the Commissioner’s office, the Major League Baseball Players Association (the union that represents players), and the federal agents investigating BALCO who seized the 2003 drug test results.
Clearly, it’s the feds who are leaking these names, and doing it selectively, using the biggest names to garner the most publicity for their investigation.
So why doesn’t the Times simply say that Sosa’s name was leaked to them by federal agents? Most likely because the feds are in an ongoing legal battle over whether they had a right to seize the test samples in the first place and asked not to be identified even as government laywers. (A decision in the lawsuit brought by the players union is expected to be rendered this fall.)
— Second, there’s much speculation as to what Sosa’s punishment might be for testifying under oath before a Congressional hearing in 2005 that he had “never taken illegal performance enhancing drugs.” (According to yesterday’s Daily News, Congress, which apparently has no more important things to work on, is going to review Sosa’s testimony.)
We’re guessing Congress will get nowhere if they decide to press this issue. As every story concerned with the 2003 test results ought to keep reminding readers, there was no penalty from Major League Baseball attached to the use of PEDs before 2004. And the use of nearly all PEDs before that time had no legal ramifications outside of the game except for some rare misdemeanor charges — and almost all of them meted out to sellers, not users.
— Finally, the question that still continues to puzzle journalists writing about the revelations of the 2003 tests: Why, after the players’ union had agreed to the 2003 test (which was supposed to be anonymous, and only for gauging how widespread the problem was) would the union hold on to those test results long enough for them to be seized by the feds?
If they had served their purpose, why weren’t the test results destroyed before they could be taken over by government lawyers and
then gradually leaked to the press? The facts as we now know them:
On November 19, 2003, only six days after the testing was finalized, a grand jury subpoena requested by federal agents investigating the BALCO steroids scandal was issued for the actual test samples, which were at a lab in Long Beach, Ca. The players’ union requested that government attorneys withdraw the subpoena for all the 2003 test results, and when they refused, they filed papers asking for clarification on what the government was entitled to. However, the next day all samples were seized, not just samples from the 10 players associated with the BALCO investigation.
In April 2004, both the Commissioner’s office and the Players Association were dismayed to receive a report from federal officers which listed the names of the 104 players believed to have tested positive. How could that have happened if the tests were anonymous? Apparently, thinks a source connected with the Players Association, the lab’s code was cracked and the samples were identified.
There are two explanations for the union’s failure to destroy the test samples. One is that chief legal counsel Gene Orza wanted a second round of tests to validate the first. The agreement between the union and MLB was that random drug testing would be implemented only if 5 percent of the players tested positive and the number was slightly over 7 percent. The numbers were close enough for Orza, reasonably enough, to consider their options.
The second explanation is that once the federal government initiated the BALCO investigation, there was speculation among officials of both the union and baseball that the destruction of the tests could be viewed as obstruction of justice.
One of these scenarios is almost certainly the reason the test samples weren’t destroyed. Either one will do.
Meanwhile, it ought to be mentioned yet again that the union and MLB agreed to do the testing under an agreement that the results would be anonymous. Someone is now leaking that information to further their own ends. Our guess is that you can expect more leaks over the next couple of months, and that the names exposed won’t include .240 hitters. They don’t make headlines.