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Posted: Saturday February 7, 2009 7:47PM; Updated: Monday February 9, 2009 8:23PM
Michael McCann Michael McCann >
SPORTS LAW

A-Rod not likely to face charges

Story Highlights

It does not appear Alex Rodriguez ever testified under oath about steroids

The Justice Department may seek to meet with Rodriguez after SI's report

The U.S. Court of Appeals is ruling on the constitutionality of the evidence seized

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Unlike Barry Bonds and Roger Clemens, it is unlikely Alex Rodriguez will be a target of a criminal prosecution.
John Biever/SI

Saturday's stunning revelation that Alex Rodriguez tested positive for anabolic steroids in 2003 invites numerous questions about one of the most accomplished players of the last 50 years.

Among the biggest questions is one that involves the law: Could Rodriguez join fellow steroids-tainted superstars Barry Bonds and Roger Clemens as a target of criminal prosecution?

At this time, the answer appears to be no. Although Rodriguez has repeatedly denied using steroids to media outlets, he has done so without the threat of legal consequence. Perjury requires knowingly lying while under oath and Title 18 of the United States Code (Section 1001) details the crime of knowingly lying to government officials. It does not appear Rodriguez ever testified under oath or spoke to government officials about steroids.

In light of Saturday's news, however, the Justice Department may seek to meet with Rodriguez. The Justice Department has an on-going investigation into the distribution, sale and use of illegal steroids and other performance-enhancing substances, as those activities violate an assortment of federal laws. As an alleged steroid user, Rodriguez may be able to offer useful information. Should a meeting between Justice Department officials and Rodriguez occur, he could not knowingly lie or he would face prosecution.

The Justice Department may wait to seek a meeting with Rodriguez until the U.S. Court of Appeals for the Ninth Circuit rules on the constitutionality of evidence seized by federal agents from Comprehensive Drug Testing, Inc., one of two labs previously used by MLB for steroids testing. In 2004, agents acted on a search warrant to seize test results for 10 players linked to BALCO. They found much more: On computers were positive results for 104 other players, which in turn led to new search warrants for the seizure of those players' records. Rodriguez was among the players who had tested positive. The MLBPA contends that the seizure of the results for the non-targeted players violated their 4th Amendment protection from unreasonable search and seizures, since the "probable cause" authorizing the original search warrant was limited to the 10 BALCO-linked players. The government, in contrast, maintains that the results for the non-targeted players were merely intermingled with the 10 targeted players and intermingled evidence is normally admissible.

If the MLBPA loses before the Ninth Circuit, it would likely petition the U.S. Supreme Court for certiorari (i.e., judicial review). In the unlikely event that the Supreme Court grants cert -- it normally grants cert to about two percent of petitions -- the admissibility of evidence implicating Rodriguez could rest in the hands of nine justices on the Supreme Court.

SI Exclusive: A-Rod tested positive for steroids in 2003
Keith: A-Rod controversy spoils entire 2009 campaign
Verducci: How SI's report affects A-Rod, Yanks and MLB
Jenkins: A-Rod goes from backing Bonds to joining him in misery
Heyman:
Rodriguez tainted by players union's mistake
Roberts: Q&A on breaking A-Rod story
Ballard: A-Rod becomes latest superhero unmasked
React: How does this news impact your opinion of A-Rod?
Gallery: A-Rod through the years
60 Minutes: A-Rod denies ever using PED's

SI.com legal analyst Michael McCann is a law professor at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He is a former chair of the Association of American Law Schools' Section on Sports and the Law.

 
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