RETURN OF GET-THE-NAMES GAME

By Murray Chass

September 16, 2010

News item: Appellate court rules that Feds illegally seized results from 2003 test for steroids.

With the government unlikely to get the United States Supreme Court to hear an appeal of the 9-2 decision of the Ninth Circuit Court of Appeals, the Players Association can expect to have the notorious list of approximately 100 names returned with the government unable to make any use of it.

The ruling, however, doesn’t mean that no use will be made of the list. In fact, I suspect the ruling will trigger use of the list by the person or persons who last year leaked the names of four players from the list.alex-rodriguez-press-225

That’s right. The ruling could very well be a signal for the name game to resume. Last year the game produced four names, four grand-slam names: Alex Rodriguez, Sammy Sosa, Manny Ramirez, and David Ortiz. Maybe those were the only sexy names on the list, but the game’s participants don’t know that and will try to wrest more names from their sources.

The rules of the game are simple, the rewards instant notoriety. Just be a reporter eager to call attention to himself or herself and find someone with knowledge of the contents of the list and willing to commit a criminal act by violating the court order that placed the names under seal.

Most infamously, that’s what Michael Schmidt of The New York Times did last year when he outed Sosa, Ramirez and Ortiz after Selena Roberts of Sports Illustrated named Rodriguez. Roberts said four sources gave her Rodriguez, but I didn’t believe it then and I still don’t.

“The leaking of information under a court seal is a crime,” Donald Fehr, then the head of the players union, said at the time of the disclosures. “The active pursuit of information that may not lawfully be disclosed because it is under court seal is a crime.”

The Times disagreed, saying it was simply practicing journalism by seeking the names. But it’s not the kind of journalism the Times practiced during my 39 years with the newspaper.

I believe Schmidt crossed the line when he induced lawyers to violate the court order, and in his Times reports he wrote that he got the names from lawyers. He was even more expansive in interviews.

In an interview with Fox Sports Radio last year, Schmidt was asked how he decided which names to pursue.

“What we did was we tried to talk to as many people that have seen the list as possible and to see what they knew about it,” Schmidt said.

“If I showed you a list of a hundred players and it had star and middling players and guys you’ve never heard of you would probably remember the stars. So people that have seen the list tend to remember the most high profile people on the list.”

But everyone who had seen the list, including law clerks, was under court order not to discuss the case or disclose anything he knew.

“The contents of all seized material is under seal,” Gene Orza, the union’s No. 2 official, said. “Anyone who discloses information from the list is in contempt of court.”

But disclose they did, and they will again, I suspect, because the appellate court decision figures effectively to end the possibility that the government will be able to use the list for whatever purpose it hoped to be able to use it.

The suspicion has been that the leaker leaked the names because he didn’t like that the names would not be divulged publicly. Now again he knows that but even more certainly, and if he has names to disclose, he will disclose them.

But what about the Federal agents who seized the results and the prosecutors who directed them to seize them? The appellate court and lower court judges said they acted illegally. They had to know what they were doing was marginally okay at best.

They nevertheless charged ahead and trampled on the rights not only of the players but also on the union and Major League Baseball, which had negotiated a perfectly legitimate collective bargaining agreement that established testing for 2003 with players promised confidentiality.

A year ago, in an earlier 9-2 vote upholding lower court rulings, Chief Judge Alex Kozinski wrote, “This was an obvious case of deliberate overreaching by the government in an effort to seize data as to which it lacked probable cause.”

Nothing will happen to the offending agents and prosecutors. They will proceed to their next case and maybe trash someone else’s rights.

Meanwhile, a reason for the names on the list to remain confidential, besides the fact that there is a confidentiality agreement, is the disclosure that not all of the players on the list tested positive. Some apparently had used substances that are illegal today, such as androstenedione, but that were not illegal in 2003.

 

News item: Mets announce preliminary 2011 schedule

omar-minaya2What the Mets haven’t announced is the status of general manager Omar Minaya and manager Jerry Manuel. At least they haven’t officially announced it. But I thought I gleaned a big hint reading the New York newspapers last Sunday.

Most of them carried columns that could have been written by the same writer; that’s how similar they were. It’s possible that the writers coincidentally and independently came up with the same idea, but it’s unlikely.

It’s more likely that the idea was suggested to them by the same person, someone connected to the Mets, someone who is in a position to determine whether Minaya and Manuel will retain their jobs for next year. Jeff Wilpon, for instance, the Mets’ chief operating officer and son of owner Fred Wilpon.

All of the columns seemed to make it a foregone conclusion that Minaya and Manuel are gone, that the decision has already been made. Maybe, they suggested, Minaya would be reassigned and stay with the team.

What they didn’t know or ignored was that Minaya’s contract doesn’t allow the Mets to reassign him, and it’s unlikely that he would agree to the idea. It’s most likely that he would say no and collect $2 million or so for the next two years.

Comments? Please send email to comments@murraychass.com.