Bond Bats Against MLB After Conviction Vacated

In April, baseball's all–time home run leader Barry Bonds received a favorable call from the 9th Circuit Court of Appeals. After a three–judge panel upheld Bonds' felony conviction for obstruction of justice in 2013, an en banc panel vacated the trial court judgment in favor of the former baseball player.

Steeped in steroids–era drama, Bonds' 2011 conviction stemmed from testimony the former San Francisco Giants and Pittsburgh Pirates player provided in a grand jury investigation that commenced in 2003. The grand jury was charged with examining the Bay Area Laboratory Co–Operatives', or BALCO's, alleged distribution of performance–enhancing drugs to professional athletes.

The grand jury eventually brought an indictment against Bonds that contained four counts of perjury and one count of obstruction of justice. The obstruction of justice charge, which would be the only count that Bonds was convicted of, was tied to single statement made by Bonds.

In response to a question of whether Bonds' former trainer ever gave him anything that "required a syringe to inject [himself] with," Bonds provided a short disjointed reply regarding the effects of being a celebrity child with a famous father (former pro baseball player Bobby Bonds).

After rehearing Bonds' appeal last fall, the en banc panel produced a brief per curiam decision that described Bonds' testimony as "a rambling, non–responsive answer to a simple question." The panel determined that the statement could not be considered sufficient evidence for an obstruction of justice conviction.

In addition to the per curiam decision, the 11–judge panel featured four concurring opinions and a lone dissenting judge. While the per curiam opinion is premised on a narrow application — the statement at issue did not violate the federal obstruction of justice statute, 18 U.S.C. Section 1503 — some of the judges chose to use Bonds' case as a vehicle to take issue with broad interpretations of the scope of the statute.

For instance, joined by four of his colleagues, 9th Circuit Appellate Judge Alex Kozinski drafted a concurring opinion that explained that obstruction of justice can only be found if the prosecution proves beyond a reasonable doubt that the charged conduct could influence authorities in a manner that would cause the termination of an investigation, pursuit of different avenues of inquiry or achievement of a different outcome.

Kozinski reasoned that Bonds' statement "communicates nothing of value or detriment to the [grand jury] investigation" as "the answer did not enlighten, obfuscate, confirm or deny anything within the scope of the question posed."

In an effort to show the need for a restrained obstruction of justice statute, Kozinski analogized Bonds' case to lawyers' oral advocacy. For instance, under an overbroad interpretation of the statute, Kozinski stated that an attorney's attempt to redirect a judge's hypothetical during oral arguments could be considered "an effort to divert the court and thereby influence…the due administration of justice..."

The 9th Circuits' decision explained that Bonds' rights under the double–jeopardy clause prevented the possibility of a retrial on the matter. Nonetheless, federal prosecutors on the other side of the case are mulling their options.

In particular, the U.S. attorney's office for the Northern District of California has requested a delay in finalizing the appellate ruling in an effort to further consider the option to file a petition for writ of certiorari to the Supreme Court. The deadline for this action is July 22.

Even with his felony conviction overturned, Bonds may not be done engaging in adversarial matters. Specifically, Bonds is expected to file a grievance against MLB regarding alleged collusion that ended his career.

The collusion claim arises from Bonds' inability to secure a contract with any of the leagues' 30 teams for the 2008 season. Despite hitting 28 home runs, leading the National League in on–base percentage and setting the all–time home run record, Bonds did not receive any contract offers following the 2007 season. At the time, Bonds even went on record stating that he would play for the minimum salary of $400,000.

Procedurally, the MLB collective bargaining agreement requires Bonds to go through the grievance process before he can file a lawsuit against the league. Bonds will work with the MLB Players' Association in preparation for any grievance action. In 2008, the MLBPA publicized that it had discovered evidence establishing that Bonds had been a victim of collusion.

Moving forward with his collusion claims, Bonds will have to combat the somewhat ambiguous language of Article XX(E) of the MLB CBA. Section (1) states that "Clubs shall not act in concert with other Clubs," which, in theory, supports the idea that Bonds would have a case for collusion if his evidence shows that even two teams acted collectively to not sign him.

Notwithstanding the favorable language, Bonds will still have to present evidence that rises to a level of sufficiency such that the arbitrator handling the grievance matter would be convinced of an actual agreement to prevent Bonds' signing.

If Bonds is successful in his grievance, then he would be owed treble damages for lost baseball income — salary, signing and incentive bonuses and additional contract years. The base for this income is the estimated amount that would have been earned but for the violation.

The MLB has a slightly sordid past with collusion. One particular instance occurred during the free agency periods following the 1985 to 1987 seasons. Three separate collusion grievances were filed on behalf of the players after contract prices were absent, low in value or low in years across the market. In all three cases, an arbitrator found in favor of the players and against the MLB and team owners, resulting in more than $100 million in damages.

While the events surrounding Bonds' collusion claim are nearly a decade old, his case is only beginning to emerge and far from a sure bet. However, even with the recent decision to vacate his felony conviction, the home run king is not likely to be out of the news anytime soon.

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