YP Speak

News broke this weekend that A-Rod allegedly tested positive for performance enhancing drugs in 2003, according to the NY Times and Yahoo! News, among others. Now, it appears that A-Rod has owned up to it.  

Although the damage is done because the results (and his confession) are out, is there any way for A-Rod to deflect some of the backlash?  Could A-Rod argue that the government violated his Fourth Amendment right to be free from illegal government search and seizure when it obtained his BALCO test results?

The story beganwhen MLB team owners called for confidential drug testing after several high-profile MLB players denied steroid use.  Once the players underwent drug testing, federal investigators obtained a search warrant, which included the names of ten players, to search the drug testing laboratories.  Investigators wanted the test information to determine whether the players that testified at the congressional hearing perjured themselves.

The problem arose when federal investigators went to BALCO and seized documents and electronic data related to the ten named players in their warrant, as well as information related to 104 other MLB players.  Since BALCO refused to hand over the results of the ten named players, the federal investigators obtained everything because the ten named players were not separated out.

The United States Court of Appeals for the Ninth Circuit ruled in 2006that the government's search and seizure of the computer files did not violate the unnamed players' constitutional rights. The court found that the government respected the players' privacy when it acted pursuant to a warrant to investigate the ten named players. 

This opinion was withdrawn and superseded by a January 2008 rulingby the same court.  Although the 2006 opinion was withdrawn, the court in 2008 found that the government's seizure of the intermingled  evidence for off-site review, through a search warrant served on an innocent third-party laboratory (BALCO), was lawful.  The court also found that the issued subpoena, which sought drug testing records and specimens for all professional baseball players who tested positive for steroids, and the contemporaneous execution of the related search warrants, as part of government's ongoing grand jury investigation into illegal steroid use by professional athletes, was reasonable.

The January 2008 ruling is now being appealed, and the Ninth Circuit agreed in September to hear the case en banc, which means that the entire panel of non-recused judges will hear the case, instead of the typical three-judge panel.

Right now, it doesn't look like A-Rod will be successful if he argues that the investigators seized his test results in violation of his Fourth Amendment right to be free from illegal government search and seizure. Although, until the nine judge panel rules, A-Rod shouldn't give up hope.

At least now we know why A-Rod always came to Bonds's defense. 

Hi YPC.  My name is  Erin and I'm an attorney here in Chicago. I practice intellectual property  and privacy law at Swanson, Martin & Bell, LLP. I'll be blogging about all things IP and privacy in the news. Feel free to comment or email me with topics or ideas that you'd like to know more about.

Last weekend, like many of you, I was glued to the t.v. during the Super Bowl.  I'm from Youngstown, Ohio, and it's always a big debate whether to cheer for the Browns or the Steelers.  Since the Browns didn't do so well this season, I was reallyexcited that the Steelers made it to the Super Bowl. 

After watching one of the best Super Bowl's in history, I scoured the web for some good commentary, and found this NY Times article about the Steelers' "Terrible Towel." Myron Cope created The Terrible Towel in 1975 and registered several trademarks under the name. Near the end of his life, Myron transferred his trademark rights to Allegheny Valley School, which is a network of campuses and group homes for people with severeintellectual and developmental disabilities.  As a result of Myron's transfer of rights, AVS has received more than$2.5 million since 1996.  That's a pretty big chunk of money for a school funded by Medicaid. 

In case you want to cheer on the Steelers withme, you can buy The Terrible Towel here.

For next time, I was thinking about Blagojevich and wiretapping. After being smothered by him in the media (I love that he appeared on The View), and after hearing about those incriminating tapes, I wonder whether you could legally tape a conversation in Illinois?