Major League Baseball

Another delay possible in baseball drug list case

Published Nov. 10, 2009 3:25 p.m. ET

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All 27 active judges on the 9th U.S. Circuit Court of Appeals may take the unprecedented step of rehearing the baseball drug list case, which could delay a final resolution until at least 2011 and possibly later. In a one-sentence order last Wednesday, Chief Judge Alex Kozinski asked lawyers to submit briefs by Nov. 25 addressing whether the case should be heard by the full court. That day also is the deadline for the federal government to ask the Supreme Court to review the long-running dispute, although the Justice Department could request an extension. Because of its large size, the 9th Circuit has used "limited en banc" courts, currently 11 judges, since 1980. Cathy A. Catterson, Circuit and Court of Appeals Executive of the 9th Circuit, wrote in an e-mail to The Associated Press on Monday that the full court has never sat on a case since then. The dispute involves the records and samples of 104 players the government alleges tested positive in baseball's anonymous 2003 survey. As part of its Bay Area Laboratory Co-Operative case, federal agents obtained search warrants for the records of 10 players and raided the offices of baseball's drug-testing companies in April 2004. They seized a spreadsheet containing the drug-testing records of all baseball players, mixed in on a computer with those from other sports and businesses, then obtained additional search warrants. Prosecutors argued they had a "plain-view" right to the records of all baseball players they said tested positive. In a 9-2 vote, a court decided in August that the government illegally seized the records. As part of the decision, Kozinski established new rules the government must follow for digital searches. "Our legal team is considering Judge Kozinski's order, and we'll make a submission as requested," said players' association general counsel Michael Weiner, scheduled to succeed Donald Fehr as the union head. Assistant U.S. Attorney Barbara J. Valliere, chief of the appellate section in San Francisco, did not return a telephone call seeking comment. While the case has been in the courts, the identities of six players alleged to be on the list have become public: Jason Grimsley, David Ortiz, Manny Ramirez, Alex Rodriguez, David Segui and Sammy Sosa.

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