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Alex Rodriguez and the Real Victim of Steroids

By Jeffrey Standen

Two years ago I predicted everything that we see today would come to pass. Here's the link. All that was left was to fill in the blank with the names of the guilty. Finally, one leaked out. We should not be surprised that the name is probably the most famous name on the positive test list: Alex Rodriguez.

Imagine being a lawyer, or working in some support position for those lawyers or for a court, and knowing that none other than Alex Rodriguez failed a drug test for steroids. What a difficult secret to keep. Yet your professional or occupational obligations require that you take that knowledge with you to your grave. How hard would that be? Lawyers have this obligation drilled into them in law school and in the culture of legal practice; nonetheless, despite the explicit court order to the contrary, maybe one of them let it slip. Alternatively, maybe a non-lawyer, perhaps lacking that learned response, also gained knowledge of Rodriguez' test results and squealed.

In any event, it's out, and Rodriguez has more or less owned up to his steroid use. The leak was inevitable, right? Not in my view.

1. As I explained in the post linked above, the government seized the testing data by executing a search warrant. The legality of that seizure remains a matter of ongoing litigation. The Ninth Circuit appellate opinion, to which I referred in the post two years ago, is currently being re-examined by the entire Circuit "en banc." The appeal involves a number of issues, one of which (the rights of a person in his expended urine) may even interest the Supreme Court. Fearing premature release of this information, the federal judge presiding in the case specifically ordered all parties to the action not to disclose the contents of those test results while the appeals were pending. My point here is that, especially while the ability of the prosecution to use that evidence remains contested, the release of some of its contents to the public arena constitutes a notably disturbing development.

2. A disturbing development, I should add, that was created by the Sports Illustrated reporters who enticed several insiders with knowledge to break their legal duty and finger Rodriguez. Where is the reporters' complicity? I see Selena Roberts, Sports Illustrated's new back-page moralizer (assuming the high ground vacated when Rick Reilly assumed the pontificator's role at ESPN) being interviewed on evening news programs without having to answer for her conduct. If it not permissible for an insider to reveal the contents of sealed evidence, then why is it morally permissible (if not illegal) for an outsider, especially a veteran reporter experienced in prying admissions out of reluctant innocents, to cajole and entice such insiders to break their known legal obligations? Isn't luring another to commit a wrong just as culpable as the wrong itself?

3. Yet the reaction is precisely the opposite. Mark Fainaru-Wada, the reporter who abused the legal system by digging out the secret transcripts of grand jury proceedings respecting BALCO and Barry Bonds, instead of spending more time in prison, lands a gig with ESPN. Selena Roberts will undoubtedly rise within the ranks as well. Why does the news reporting industry visibly and tangibly reward employees who lure others to break the law? Today, media writers from every corner are weighing in on how much Alex Rodriguez has destroyed his name and the game he plays. But why doesn't the media examine its own contribution to the destruction of something far more important than a game? The actions of Roberts, like that of Fairnaru-Wada before her, threaten the very legal system on which this country relies. Their actions reveal a disregard for the social good that runs far deeper than that of some twenty-three year old shortstop sticking a needle in his arm.

4. Roberts will enjoy her day in the sun. But I look forward to the trial. Not that of Alex Rodriguez: I doubt anything he did will interest a prosecutor. And certainly not the tawdry matter involving the pitiable Barry Bonds. No, I'm looking forward to the day when reporter Selena Roberts gets to squirm on the hard wooden chair in the federal courtroom. I'm getting the sense that the federal judge presiding in this matter will not be pleased by this latest leak. I'm also guessing that the federal prosecutor to whom this judge will likely refer this leak problem will want to do his very best to impress the new federal administration. This is not the end of the matter.

Will Selena Roberts write her moralistic SI back-pagers from the confines of federal prison, where she'll be on her civil contempt penalty?

Full post as published by The Sports Law Professor on February 09, 2009 (boomark / email).