The Drug War's Collateral Damage

The drug testing implemented during the 2003 season was almost an afterthought to the 2002 Collective Bargaining Agreement. Negotiated in the late summer of 2002, there was no federal probe, no BALCO, no Clemens, no nothing that was truly compelling its inclusion. There was simply a moderate amount of publicity as a result of Jose Canseco and Ken Caminiti going public with their own steroid use and making some estimates as to that of others. The big issues at the time, you'll recall, were all financial ones, dealing with contraction, revenue sharing, and the like.

Now the results of the first round of tests in 2003 are poised to be distributed to FBI and IRS agents around the country who will then use them to build drug cases:

According to a lawyer who spoke on condition of anonymity because the government’s plans are supposed to remain confidential, federal authorities will seek to question each of the 104 players about where and how they obtained the substance detected in their urine samples.

The authorities then intend to distribute the information they receive to federal prosecutors around the country . . . the 104 players would be asked to provide testimony — to federal agents or before grand juries — to lead investigators to the distributors. The players’ identities could become public if their testimony is used in government documents to obtain search warrants or to charge individuals. The players could also be called as witnesses at trials.

If and when the government is questioned further on these plans, they will no doubt say that the players are not the targets, but merely cooperative citizen-witnesses who can go on their merry way the moment they have exposed the evil drug dealers. We know, however, that things aren't as simple as that.

When the government "asks" people to provide testimony in situations like this, they are really telling people to provide testimony. If they don't get cooperation, the player will be scrutinized to the nth degree by any number of the dozens of mini-Jeff Novitzkys unleashed by this probe. Tax returns will be examined, friends, family members, and employers will be questioned, and documents will be subpoenaed, all in search of a lever which the government can use to get what it wants. Inevitably, the pursuit of the players' testimony will become the focus of proceedings, and it is not unreasonable to assume that a few of the 104 will be prosecuted themselves. Ask Barry Bonds how this works.

Going forward, the primary focus of this story will be about how baseball will continue to have mini-dramas over steroids, with names leaked and former heroes implicated as cheaters. As this drama unfolds, however, I'd recommend that you ignore this sideshow as much as possible and instead think about your own employment situation or that of your friends and family members. How many of you are tested for drugs at work or are otherwise required to submit to medical tests of some kind as incident to your employment? How many of you believed that the results of those tests were between you and your employer?

By virtue of the legal precedent set in this case any promise made to you by your employer along those lines is null and void, and all it would take for your own, putatively private medical information to become the fodder of drug cases is a bored federal agent or an ambitious assistant U.S. Attorney looking to make some noise.

This, to me, is not a story about cheating baseball players. This is a story about a drug war that has grown out of control and a court system so used to bending over for prosecutors that it doesn't know how to do anything else. The purpose of workplace drug tests is to ensure drug-free job sites and, to a lesser extent, to promote the health of the workforce. It is not to root out criminals, real or imagined.

In no case should the results of employer administered drug tests be used to put the employees in the cross hairs of federal investigations.