Ever since David Ortiz was outed as a steroid user last week, there has been a general cry by baseball fans and former players that the entire list of 103 names be released. The argument is that the good of the game is at stake, and that it would be best to rip off the bandaid once and for all rather than suffer the water torture that comes with the gradual release of star name after star name. However, the legal implications of such a move make this an untenable solution, as Craig Calcaterra notes:
The list, as everyone seems to be forgetting, would not have existed if the people whose names appear on it (and about a thousand others) hadn’t been promised that it would remain confidential while it existed and would be destroyed soon after it was created. Those promises were broken, first by the players’ own union, who violated the players’ trust, and then by the federal government, who, in the opinion of many, overstepped previously-established legal grounds to seize the information in the course of their BALCO investigation. An investigation, mind you, that had nothing to do with the vast majority of the players on the list.
The listed players have had at least two legal duties owed to them breached and two legal rights entitled to them violated: the fiduciary duties owed to them by their union, the contractual duties owed to them by baseball and the testing lab, their Fourth Amendment rights against unreasonable search and seizure, supposedly guaranteed by the U.S. Constitution, and the right to have their medical information kept private, guaranteed by HIPAA. It’s too late for Manny, Papi, A-Rod, and Sosa, but around 100 other of these guys still have not been damaged by these egregious acts, though they will be if their names are released as everyone is so blithely demanding.
Craig makes an excellent point, one that I think baseball fans tend to gloss over when assessing this situation. As fans, we see the players as cheaters and liars, and therefore want their rights subjugated to the game and the will of the people. However, this is not how things work in America. Two wrongs do not make a right, and being a cheater and possibly a criminal does not strip you of your constitutionally granted rights. Those calling for the names to be released are asking that the health of the sport be placed ahead of the Constitution and other fundamental rights inherent to the American way of life, an untenable suggestion that should be discarded. As Doug Glanville so clearly noted in a New York Times editorial:
I think the release of this list of 104 would be a travesty. The promise of confidentiality was in place to allow players to be more willing to provide a true test. We can’t go back and change the rules after the fact and then claim we are now noble and honorable. I want drugs out of the game, too, but there is more effective, long-term way to go about it that doesn’t compromise principles that make the rule of law in our country so unique.
Releasing the names at this point is against the law and would be injurious to the rights of the players on the list. I love baseball, but certain things are above the sport, and the rule of law is one of them. The list needs to remain sealed, and those lawyers releasing names need to be tracked down and held responsible for their actions.
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