Donald Fehr denied allegations that his No. 2 official gave players advance notice of drug tests and defended the baseball players' union against criticism that records of the anonymous survey should have been destroyed in 2003.
Questions about the 2003 testing intensified after Sports
Illustrated reported last weekend that Alex Rodriguez was one of
104 players who tested positive that year. Rodriguez admitted
Monday to using banned drugs.
Fehr, the Major League Baseball Players Association's executive
director, said there was just an eight-day span between the initial
receipt of the test results and notice that a federal grand jury
was seeking them as part of the BALCO investigation into
Fehr said the union first received test results on Nov. 11,
2003, that the results were finalized two days later and that
players were notified the following day, a Friday.
"Promptly thereafter, the first steps were taken to begin the
process of destruction of the testing materials and records," Fehr
said. "On Nov. 19, however, we learned that the government had
issued a subpoena. Upon learning this, we concluded, of course,
that it would be improper to proceed with the destruction of the
The union negotiated with federal prosecutors in San Francisco
until the following spring and pledged not to destroy the records.
The union moved in April to quash the subpoena, and federal
investigators obtained a search warrant and seized records from
Comprehensive Drug Testing and samples from Quest Diagnostics.
Although the search warrant sought records of 10 players, the
government found a spreadsheet with a list of 104 players who had
tested positive; it then obtained additional search warrants and
seized all records.
The case has been in the courts every since.
The union said the seizure of the wider group of records was
illegal under the Fourth Amendment to the Constitution, and that
the government had the right to only the records and samples of the
Three U.S. District Judges agreed with the union in August and
October 2004. The government appealed, arguing that because the
records were on the same computer, it had a "plain view" right to
all the materials. A panel of the 9th U.S. Circuit Court of Appeals
agreed with the government in a 2-1 vote in December 2006 and
mostly reaffirmed its decision in January 2008.
The full 9th Circuit then threw out that panel decision and
decided to have an 11-judge en banc panel hear the matter. Oral
arguments were held in December, and a decision is pending.
The loser could attempt to take the case to the Supreme Court.
Fehr also insisted Monday that no players were improperly tipped
to upcoming drug testing.
"Any allegations that Gene Orza or any other MLBPA official
acted improperly are wrong," he said in a statement.
In its report, SI said Rodriguez was told by Orza, the union's
chief operating officer, that he would be tested in September 2004.
Fehr told Congress last summer that union lawyers spoke with 65
players on the government list that September.
"During these conversations, players were told that if they had
not yet been tested in 2004, that they would be tested before the
season ended, but that was something the players already knew
before the conversations took place, because the agreement required
that each player be tested once during the year," he wrote in his
July letter to Congress, which he cited in Monday's statement.
"They were not told (and no one knew) specifically when any test
would be conducted."
At the time, the testing period ended with the final game of the