Appeals court will decide fate of 'the list'

[February 11, 2009]  NEW YORK (AP) -- So who are the other 103?

Alex Rodriguez turned out to be just one name on the infamous list of players who tested positive for banned drugs during baseball's anonymous survey in 2003. Will more names follow?

"Our program, which was designed to be confidential, if it turns out not to be, that's something that causes concern," union head Donald Fehr said Tuesday.

Baseball's highest-paid and perhaps most-talented player, Rodriguez said Monday that he used banned drugs from 2001-2003 while playing for Texas. The admission came two days after Sports Illustrated reported that his name was among the players on the list.

Former union head Marvin Miller called for an investigation of federal prosecutors to help determine whether there was a government leak of the test results, which remain under court seal.

"I think the first question ought to be: 104 names all testing positive, but you leak only A-Rod's. Why is that?" Miller said.

The fate of "the list" will be determined next by 11 appeals court judges in California.

If prosecutors are allowed to use the list and bring players before grand juries and trial courts, additional stars might be forced to admit they used steroids.

"It's definitely not fair to just pinpoint one guy," Boston's Kevin Youkilis said. "I don't know if somebody had it in for him. I don't know what because it seems like just to take one name out of that whole group is a little odd to me. If he was named with 10 other players, would that have been fair? I don't know? If they'd have listed all 104?"

Hall of Famer Goose Gossage hopes the list becomes public.

"I want to know who these other 100 guys are," he said. "Let's get it all out in the open. It certainly is not fair to A-Rod or to Bonds. They're dragging A-Rod down."

Rodriguez was at the University of Miami's campus Tuesday morning for a workout session, with several photographers staking out the gym he frequents and surrounding his vehicle. He did not comment.

Rodriguez is to be the headline attraction at the school's annual baseball banquet Friday night, when the Hurricanes' home park gets renamed in honor of the $3.9 million gift he gave Miami in 2003.

Team co-chairman Hank Steinbrenner, speaking at the team's spring training complex, backed Rodriguez.

"I'm not angry at him at all, and I support him 100 percent," Steinbrenner said Tuesday night. "We support him, and we're going to do everything we can to make this season a successful one."

Former AL MVP Jose Canseco, who in a pair of books revealed details on drug use in baseball, hopes to meet with commissioner Bud Selig and Fehr.

"I think I have the ear of the nation now," Canseco said. "I think everyone realizes I have not in any way, shape or form tried to create smoke and mirrors like Major League Baseball has and the players have. I have been excruciatingly honest about what's going on in baseball."

Marc Ganis, president of the consulting company Sports Corp. Ltd., said Rodriguez will be viewed differently by fans as his home-run total climbs from 553 and he approaches Barry Bonds' mark of 762. The A-Rod brand has been tainted, and Ganis said it will cost Rodriguez endorsement deals.

"He is going to have a cloud over him, particularly as he approaches the home run record, where before this revelation, he was considered the anti-Bonds, the guy who was going to get the greatest record in all of sports back into the hands of a clean athlete," Ganis said. "He will always have this postscript. Sponsors don't like postscripts."

The list was a spreadsheet seized by federal agents from Comprehensive Drug Testing in Long Beach, Calif., in April 2004. The agents had a search warrant for the testing records of 10 players involved with BALCO. When they saw the spreadsheet, agents obtained additional search warrants, copied the entire computer directory and took the records of all the players.

Test samples and records were to remain anonymous and be destroyed, but MLB and the players' association couldn't arrange for the destruction with the test companies between Nov. 13, 2003 -- when the results were finalized -- and that Nov. 19, when the union because aware of the subpoena.

The players' association filed motions to get the records back and won in three U.S. District Courts. But a 9th circuit panel reversed in a 2-1 vote in December 2006, a decision the panel mostly reaffirmed its decision in January 2008.

The full 9th Circuit then threw out that panel decision and decided to have 11 judges hear the matter. It included five judges appointed by Bill Clinton, four by George W. Bush and one each by Ronald Reagan and George H.W. Bush. Oral arguments were heard in December, and it's uncertain when a decision will be issued.

"I think it's too close to call. These are very hard issues and they're new issues. It's really hard to predict," said Orin S. Kerr, professor of law at The George Washington University Law School. "This is a lawyers' battle for people that can hire very good lawyers, and that's not true in most criminal cases."

Prosecutors want to ask the wider group of players where they obtained steroids, which might advance investigations. The players' association, citing privacy rights, claims the search violated the Fourth Amendment.

The case, which could wind up before the Supreme Court, might define what "plain view" means in the digital age. Or the 9th Circuit could decide it on procedural grounds.

"It really depends on how they write it. So this could be an extremely important case, and it could be a very narrow case," Kerr said. "It's an unusual case in that the information has value outside the criminal case, which is not normally the case."

[Associated Press; By RONALD BLUM]

AP Baseball Writer Mike Fitzpatrick, and AP Sports Writers Gregg Bell in Seattle; Dan Gelston in Philadelphia; Tim Reynolds in Coral Gables, Fla.; and Howard Ulman in Fort Myers, Fla.; and AP freelance Mark Didtler in Tampa, Fla., contributed to this report.

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