Will steroids report lead to perjury investigation of Sammy Sosa?

Two down, 102 to go.

According to the New York Times, Sammy Sosa, like Alex Rodriguez, was among the 104 players who tested positive for steroids in 2003.

Keep in mind, this infamous and mostly confidential list of 104 was never supposed to exist. All of the tested players were assured by their union, the Major League Baseball Players' Association, that their names would not be disclosed. The players were only tested as part of a sample test, as agreed to by Major League Baseball and the MLBPA, to determine whether a sufficient number of players tested positive in order to trigger mandatory steroids testing. The names associated with the positive sample tests were allegedly irrelevant; all that mattered was whether more than 5 percent of players tested positive. Any incriminating materials -- be they paper documents or computer files -- were to be destroyed immediately.

For reasons that remain unclear, at least some of those materials were not immediately destroyed. Specifically, a computer at Comprehensive Drug Testing Inc., one of two labs previously used by MLB for steroids testing, contained the names. And unfortunately for the 104 players, Jeff Novitsky and other federal agents investigating ties between BALCO and 10 specific MLB players seized the computer and found the damning files. The MLBPA and the federal government are litigating the legality of the agents' seizure in U.S. v. Comprehensive Drug Testing, with the U.S. Court of Appeals for the Ninth Circuit set to issue an opinion. The MLBPA contends that the government only had probable cause to investigate the 10 specific players, meaning the other players suffered an unreasonable search and seizure under the 4th Amendment. The government, in turn, asserts that all of the evidence was intermingled and no player's 4th Amendment rights were violated.

Regardless of the Ninth Circuit's forthcoming decision (or of an unlikely review by the U.S. Supreme Court), a number of people are aware of the remaining 102 names. Any of those persons has the capacity to leak the names, which they might be tempted to do for a variety of reasons. They may, for instance, dislike one or more of the named players and want to settle a score. Or perhaps their intentions are more sinister: they could threaten to disclose a name or names unless compensated in a blackmail scheme.

Officials at the MLBPA and MLB are most likely aware of the names, as are various federal officials, including the agents who seized the computers, as well as judges, clerks, prosecutors and their assistants. Certain player agents and attorneys may also be aware of the list. In short, a lot of people have probably seen the list.

Granted, all of these persons "in the know" are bound by professional duties of confidentially, violations for which can trigger civil consequences. A baseball agent, for instance, could risk fine, suspension, or even decertification by the MLBPA, which certifies agents who have clients on 40-man rosters. The union itself is dissuaded from disclosing the names. Under federal labor laws, the MLBPA and its officials owe duties of trust and competence to each of its players. Should the MLBPA disclose the 104 players' names, the named players would be entitled to sue the MLBPA for breach of duties; they could also file a grievance with the National Labor Relations Board. Players' damages could be shown through reputational harm and potential loss of endorsement deals.

In addition to civil liability, certain federal officials could also be held criminally responsible for prosecutorial misconduct, which can theoretically entail leaking prejudicial information to media. Tracking down the source of the leak, however, would be extremely difficult. There may thus be inadequate deterrence to dissuade each person who is "in the know" from leaking the names. Indeed, it seems only a matter of time before we all know the remaining 102 names.

For Sosa and Rodriguez, however, the secret is already out of the bag and their baseball legacies may be irreparably tarnished. Yet unlike Rodriguez, who never lied under oath (lying to fans, media, teammates, agents, managers, and almost everyone is not a crime), Sosa may find himself subject to an additional and far worse penalty: a criminal prosecution for perjury.

On March 17, 2005, Sosa, along with Mark McGwire, Rafael Palmeiro and several other players, testified before the House Government Reform Committee. During the hearing, Sosa's attorney at the time, James Sharp, read a statement on Sosa's behalf. In the statement, Sosa expressly stated that he had never used steroids or human growth hormone.