Federal investigators could subpoena 104 former and current MLB players that may be connected as part of the BALCO investigation after they gained access to the 2003 test results from MLB known as the “Survey Test”.
Those test results, which were always intended to remain anonymous, came about when the MLBPA and MLB agreed that if the total number of players that tested positive for steroids was over 5%, the league would then be able to institute mandatory testing.
As I wrote for Baseball Prospectus (The Fourth Amendment, the MLBPA and the BALCO Investigation)
Players were tested twice during the 2003 season (including spring training but not the postseason). In addition, the Office of the Commissioner had the right to conduct additional Survey Testing in 2003 in which up to 240 players, selected at random, could be tested. If 5% or more of those tested came up positive for steroids, mandatory testing would take place beginning in 2004. The results were to remain confidential; even a player who tested positive would not be informed. Names were never listed on the testing samples. Rather, a number was assigned with a separate key used by the testing facilities. That year, 1,438 players were tested, and 104 of them, or 7.23%, tested positive for steroids.
If you read United States v Comprehensive Testing you’ll find that federal agents seized a master list – a key -- that tied the players names to the test results.
Now, the Feds appear ready to use the evidence seized. As reported by the New York Times:
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.
Distributors, not users, have been the focus of the government’s investigations into performance-enhancing drugs ever since the authorities began seriously looking into the issue in 2002. But 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.
As the NY Times article further mentions, the problem for MLB is that the players names will become public, thus creating another case of dredging up the “MLB and PED” debate, which MLB has been hoping would abate after getting the Mitchell Report released, and a new Joint Drug Agreement close to being fully ratified.