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The National Basketball Association must release the results of a drug test that triggered the expulsion of a player who is now trying to resume his career in Europe. In a ruling Wednesday, In the Matter of the Application of Federation Internationale De Basketball, M19-88, Southern District Judge Lewis A. Kaplan found that a confidentiality provision in the NBA’s collective bargaining agreement does not prevent the drug test results of former Philadelphia 76er Stanley Roberts from being released for a German lawsuit. Center Stanley Roberts was expelled from the NBA in 1999 after the league found he had tested positive for an amphetamine designer drug. Just before Roberts was set to sign a $500,000-a-year contract to play for a team in Istanbul, Turkey, the Federation Internationale De Basketball, (FIBA) announced that his drug-test ban in the NBA meant that he would be barred from competing in the federation for two years. Roberts sued the international basketball federation in District Court in Munich, Germany, claiming that he did not violate the NBA’s anti-drug rules. He also said that the federation was merely relying on the NBA’s press release. The Munich court granted Roberts a preliminary injunction on the grounds that the international federation’s anti-drug policy was not reflected in the organization’s charter. While the appeal was pending, the federation sought a subpoena to obtain documents from the NBA concerning the positive drug test and any grievance filed by Roberts. The NBA claimed that the documents were confidential under the collective bargaining agreement between the league and the players’ association. The league also argued that the players’ association would be unwilling to agree to an anti-drug program in the future if confidentiality of drug test results could not be guaranteed. But Kaplan said that “the NBA ignores the significance of the fact that it is Roberts who has the only relevant privacy interest who has put his compliance with the NBA program in issue by commencing litigation against FIBA in which he flatly denies any violation of the NBA program.” In any event, the judge said, the collective bargaining agreement “does not require the fact of a positive drug test and expulsion be kept confidential.” It allows the league to issue a brief statement saying a player has tested positive for drug use. “To the contrary, it explicitly authorizes publication of that information,” he said. “All that is left, it appears, is the clinical detail about the nature of the test and the level of drugs found in the relevant bodily fluid.” Despite the NBA’s concern about anti-drug provisions in the next collective bargaining agreement, Kaplan said that “the object of the law here is not to make the NBA’s collective bargaining easier.” Kaplan also found “unpersuasive” the NBA’s claim that the information is protected by a self-evaluative privilege. Here, he said, the information sought by the international federation is “entirely factual or nearly so,” adding that he was unconvinced that the disclosure would cause “serious harm to the interests of the NBA or to the public.” “The worst that might happen is that the [players' association] might decline to continue the anti-drug program with which it has lived for 17 years, a position that could result in substantial public opprobrium and large economic losses for the players should such a position result in a strike or a lockout,” he said. “Neither the risk of such action nor even its realization is sufficient to justify a conclusion that the federal courts should create an evidentiary privilege for drug test results of NBA players.” Robert H. Smit, of Simpson Thacher & Bartlett, represented the FIBA. Jeffrey Mishkin, of Skadden Arps Slate Meagher & Flom, represented the NBA.

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