Chapter[ X. Review of the Major League Baseball Joint Drug Prevention and
Treatment Program ]
Section[ C. 2. Alleged Advance Notice During 2004 Season ]
2. Alleged Advance Notice During 2004 Season
I also received allegations that in 2004 some players were provided with advance
notice of tests that were supposed to be unannounced. My investigation of those allegations
yielded the following information.
In April 2004 federal agents executed search warrants on two private firms
involved in the 2003 survey testing, Comprehensive Drug Testing, Inc. and Quest Diagnostics,
Inc.; the warrants sought drug testing records and samples for ten major league players
connected with the BALCO investigation. In the course of those searches, the agents seized data
from which they believed they could determine the identities of the major league players who
had tested positive during the anonymous survey testing.563
Shortly after these events, the Players Association initiated discussions with the
Commissioner’s Office regarding a possible suspension of drug testing while the federal
investigation proceeded.564 Manfred said the parties were concerned at the time that test results
that they believed until then raised only employment issues had now become an issue in a
pending criminal investigation. Ultimately, the Commissioner’s Office and the Players
Association agreed to a moratorium on 2004 drug testing. While the exact date and length of this
moratorium is uncertain, and the relevant 2004 testing records have been destroyed, Manfred
stated that the moratorium commenced very early in the season, prior to the testing of any
significant number of players. Manfred stated that the Players Association was not authorized to
advise its members of the existence of the moratorium.
563 See United States v. Comprehensive Drug Testing, Inc., 473 F.3d 915, 920-24
(9th Cir. 2006); see supra at 58-59 & n.163.
564 As mentioned above, the “governmental investigation” provision had not at that time
been added to the joint program. It was added in late 2005 as the result of these events.
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According to Manfred, the moratorium lasted for a short period. For most
players, drug tests then resumed. With respect to the players who the federal agents believed had
tested positive during 2003 survey testing, however, the Commissioner’s Office and the Players
Association agreed that: (1) the Players Association would be permitted to advise those players
of this fact, since that information was now in the hands of the government; (2) the testing
moratorium would continue with respect to those players until the Players Association had an
opportunity to notify them; and (3) the Players Association would not advise any of the players
of the limited moratorium.
Sometime between mid-August and early September 2004, Manfred contacted
Orza because the Players Association had not yet notified the players involved. The 2004 season
was drawing to a close without those players having been tested because they remained under the
moratorium. Manfred said that he pressed Orza to notify the players as soon as possible so that
they could be tested. All of the players were notified by early September 2004.
A former major league player stated that in 2003 he was tested as part of the
survey testing program. He said that in September 2004, Orza told him that he had tested
positive in 2003 and that he would be tested in the next two weeks. Independently, Kirk
Radomski told us that this former player had earlier told him the same thing about Orza’s
statements shortly after the conversation between Orza and the former player occurred. In
addition, the former player Larry Bigbie told us that the same former player had told him the
same thing about his conversation with Orza.
Furthermore, according to Bigbie, in 2004 a current player admitted to Bigbie that
he also had been told by a representative of the Players Association that he had tested positive
for steroids in 2003.
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I am not permitted to identify either the former player with whom we spoke or the
current player who made the admission to Bigbie because the Commissioner’s Office and the
Players Association have concluded that for me to do so would violate the confidentiality
provisions of the joint program.
According to the redacted affidavit filed in support of a search warrant sought for
Jason Grimsley’s residence, Grimsley told federal agents that he, too, was informed that he had
tested positive for anabolic steroids in 2003. The identity of the person who so advised Grimsley
is redacted in the public version of the affidavit, and I did not have access to the unredacted
version.565
Other players may have received similar notice, since (1) the program required
that each player be tested once during the 2004 season, (2) the Commissioner’s Office and the
Players Association agreed that, since the government had the names of the players who they
believed had tested positive in 2003, those players should be notified and should not be tested in
2004 until that notification had taken place, and (3) that notification did not take place until late
August or early September 2004, just weeks before the season ended.
Mr. Orza declined my request for an interview.
The Commissioner’s Office emphasized that the circumstances described above
represented an emergency response to an unforeseen event: a government investigation that
obtained the names of players who federal agents believed had tested positive in the 2003 survey
testing, information that the parties had agreed in advance would be anonymous. Consequently,
the Commissioner’s Office asserts that these events do not describe the normal operation of the
program.
565 Affidavit of IRS Special Agent Jeff Novitzky in Support of Search Warrant, sworn to
on May 31, 2006, at ¶ 16.
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The Players Association objected to my making any reference to this matter in
this report. I offered to include a statement by the Association and they provided me with the
following:
Because of certain actions by the Government in 2004 (which led to
litigation, much of which has been under seal), the parties were forced to
confront a serious threat to the confidentiality and integrity of our
program. To combat that threat, and indeed to save the credibility of our
program, the parties undertook certain measures in that year only. These
were not unilateral actions undertaken by the MLBPA, but actions
discussed and agreed upon between the MLBPA and the Commissioner’s
Office. Each party was fully aware and in agreement with the steps the
other was taking.
The MLBPA believes that, by publishing in this Report anything related to
these subjects, Senator Mitchell and the Commissioner’s Office are
breaching promises of confidentiality made to the MLBPA and to its
members.
.
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