NEW YORK (AP) — For baseball, it’s the problem that won’t go away.

It’s the list, the names of 104 players who allegedly tested positive during Major League Baseball’s 2003 survey of steroid use – results that were supposed to be anonymous. Instead, federal investigators seized records and samples as part of the Bay Area Laboratory Co-Operative case and prosecutors compiled what’s become perhaps the most notorious set of names this side of President Nixon’s enemies.

Much debated but seen by a relative few, the list has created an unsolvable dilemma for baseball and its players’ union. Release it, and break your word to all those who were told the results would be confidential. Keep it a secret — as required under court order — and suffer a disruption to the game every time a David Ortiz or an Alex Rodriguez acknowledges they are on the list.

St. Louis Cardinals pitcher Kyle Lohse is one of many players who want the matter resolved, even if it means releasing the names.

“If it makes it go away, I’d be all for it,” he said. “Whoever’s releasing them is doing it just to keep the issue alive. I’d rather just see it die, because it’s six years old now, and I just think it’s time to move on.”

For complicated legal reasons, that isn’t likely to happen. The list’s future is now before a federal appeals court in California and could even wind up in the Supreme Court.

“I don’t know what baseball has to gain by letting it be released,” said former Dodgers pitching great Don Newcombe. “There seems to be a cloud hanging over it, whether or not names are on there that shouldn’t be on there. And this cloud gets darker and darker. But I don’t really know what it proves if the names are divulged.”

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The list’s genesis goes back six years, to the time when an agreement between MLB and the players’ association on drug policing was just being implemented.

Survey testing — without penalties — took place in 2003, with each player providing a urine sample and an additional follow-up five-to-seven days later. Up to 240 players could be selected randomly for additional testing.

Two companies were involved, Comprehensive Drug Testing Inc. of Long Beach, Calif., and Quest Diagnostics Inc. of Teterboro, N.J., and samples were marked with codes to keep track as they were processed.

Once testing was over, baseball said that 5 percent to 7 percent of the 1,438 tests were positive for banned substances. Under the labor contract, surpassing the 5 percent threshold triggered random testing with penalties.

Just how many players tested positive is a matter of debate between the government (104 names), baseball management and the players’ union.

Major League Baseball says no more than 96 samples tested positive, and a single player could be responsible for more than one sample. To complicate matters, the union disputes 13 of those tests.

Ortiz claims he wound up on the list because he used nutritional supplements while being careless about their contents. Other players might make similar claims if their results were released.

Experts differ on how believable they find the Boston slugger’s story.

“In 2003, we lived in a world of dietary supplements, of protein powders, creatine, where you could have had a contaminated specimen,” said Dr. Gary Wadler, who heads the committee that determines the World Anti-Doping Agency’s banned-substances list. “It didn’t occur until January 2005 that these supplements became reclassified as steroids.”

One example: MLB says there were 73 positive tests for the steroid nandralone — which experts acknowledge could have been caused by supplements.

Travis Tygart, chief executive officer of U.S. Anti-Doping Agency, says Ortiz’ claims are “theoretically possible” but you’d have to see the data to know if it was true.

UCLA’s Don Catlin, who discovered the designer steroid THG, also said Ortiz’ story could be valid.

“It’s not off the wall. It’s not totally unfeasible,” he said. “There’s tons of supplements that had it in it then that are gradually getting off the market, but they’re still around, and they certainly were in plentiful supply at that time. But you never know.”

When A-Rod acknowledged he tested positive, he said he used a substance he knew as “boli,” which he said a cousin obtained for him in the Dominican Republic. Sports Illustrated said he tested positive for Primobolan. But strangely, no player tested positive for Primobolan in 2003, according to a March 2005 document sent by MLB executive vice president Rob Manfred to a congressional committee.

“That could be a lab issue, whether they were really testing properly for Primobolan,” Catlin said.

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The players’ association said it first received the results of the initial round of drug testing on Nov. 11, 2003, and sent a memo on the subject to its members on Nov. 14.

“Promptly thereafter, the first steps were taken to begin the process of destruction of the testing materials and records,” union head Donald Fehr said.

But on Nov. 19, the union learned a federal grand jury subpoena had been issued for some of the test results and records as part of the BALCO investigation – focused partly on home run king Barry Bonds – and the destruction steps halted.

Months of wrangling followed but federal agents finally got a search warrant and seized samples from a Quest lab in Las Vegas and records from CDT in Long Beach on April 8, 2004.

Federal agents found records for all the players who were tested, and even material on testing for 13 other sports organizations and three businesses, and they obtained additional search warrants for samples and records related to non-BALCO players, according to court records.

What happened next was a yearslong court fight that continues to this day, with the union seeking to get the test materials back from the government, along with the list, and the federal government arguing the searches were legitimate.

The case has wound its way to 11 judges of the 9th U.S. Circuit Court of Appeals, who could rule on it any time. The losing side could then ask the Supreme Court to decide the issue.

Where is the list now?

Major League Baseball has repeatedly said it does not have a copy.

Those with access include lawyers involved in the Circuit case, judges and their staffs. Because the evidence seized by the government has been under seal during the litigation, anyone possessing the list could be prosecuted for releasing it.

“The leaking of information under a court seal is a crime,” Fehr said. “The active pursuit of information that may not lawfully be disclosed because it is under court seal is a crime.”

While the dispute has been in the courts, the identities of six players alleged to be on the list have become public via a court document, a book and news reports: Jason Grimsley, Ortiz, Manny Ramirez, Rodriguez, David Segui and Sammy Sosa.

Fan outrage seems to have diminished as baseball’s drug problem has become more public.

According to an AP-Knowledge Networks poll conducted from June 26 to July 5, fans far and away chose the cost of attending a game (63 percent) over players’ use of steroids or other performance-enhancing drugs (14 percent) as the game’s worst problem.

But drug cases continue to divert attention from the field – for example, Ortiz’ apologetic news conference in the middle of an important Yankees-Red Sox series.

Newcombe can see both sides. He said it might benefit the sport if “they all got together as men, big strong men playing the game of baseball and said: ‘Hey, here we are. We’re the ones that they have on the list.'”

“But what is going to be done about it anyhow? They’re not going to be suspended, I don’t believe. It’ll be a mark on baseball,” he said.

White Sox manager Ozzie Guillen just wants it over with.

“Can somebody in baseball — we’re all begging, people – get that stupid list out and move on,” he said. “This is ridiculous. This is embarrassing. This is a joke. Whoever is there is there, get them out, and that’s it.”


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