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March 25, 2013

Bizball

MLB, the Boogieman, and the Biogenesis Lawsuit

by Maury Brown

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"I don't know how anyone can put on a uniform and not care about winning.”Dave LaPoint

"I was trying to win at all costs" —Lance Armstrong, after admitting to PED use

"So that there is no misunderstanding from my perspective, I will suspend any player who tests positive for an illegal steroid. There will be no exceptions. The (players) union is aware of that and they accept it." —Bud Selig, speaking to Congress in 2005

Sports are about winning. Sure, we can speak to the heart of “it’s not whether you win or lose, it’s how you play the game,” but the reality is no one ever kept their job for too long in professional sports if they weren’t winning games. In baseball—with the massive growth in salaries—this aspect of “winning” has grown into chemically enhanced substances being used to increase production. After all, if you think players are using these banned substances without thinking what they do to increase their numbers when they enter salary arbitration or free agency, you’re living in Wonderland.

And, it’s not confined to the players. Owners, front office staffs, and yes, the Office of the Commissioner, hate to lose. They don’t like being one-upped. They don’t like losing on what they see as a “technicality.” From the symbolic standpoint of the league, Bud Selig hates to lose.

So, when then-National League MVP Ryan Braun was able to get his 50-game suspension for elevated levels of testosterone overturned on the basis of the chain of custody being broken, the league promptly fired Shyam Das, the arbitrator in the case. It should come as no surprise that, in speaking with more than one league official at the time, Major League Baseball was not only angry about it, they talked of going to federal court over the matter. Months later, when the Miami New Times broke open the story that Coral Gables-based Biogenesis had documentation that appeared to show several high-profile MLB players (including Braun) had acquired performance-enhancing substances from them, MLB was going to come up and inside on those involved, and look to not only suspend the players implicated, but go after Biogenesis, and send a message to anyone else thinking about providing PEDs to players that they’d be “swimming with the fishes” if they tried.

The Office of the Commissioner hates to lose.

The problem is, when you’re “mad as hell and not going to take it anymore,” as the Commissioner’s Office appears to be, you run into the potential behavior that borders on poking a bear with a stick: It gets mad and can lash out indiscriminately. And that is the case with the suit that the Commissioner’s Office filed last week in Miami-Dade County Circuit Court, officially going after six individuals in what can only be described as a legal case of the boogieman (read the filing).

By that, I mean, this case is weak. And not just a little weak—it’s so weak that Eddie Gaedel would have a better chance of hitting a Justin Verlander fastball than the league does of prevailing. One should not be at all surprised if it’s thrown out of court.

The league is going after Biogenesis, Biokem, Anthony Bosch of Biogenesis, and others, seeking to “recover damages, and for other such relief, including equitable relief, for the injury caused by Defendants’ intentional and unjustified tortious interference with contacts between MLB and the Major League Players Association, which is the collectively bargained representative of all Major League Baseball Players.” Further, the suit claims, “Each of the defendants participated in a scheme to solicit major league players to purchase or obtain, and/or to sell, supply or otherwise make available to major league players substances that the defendants knew were prohibited under baseball’s drug agreement.” In layman’s terms, the league is suing because it feels these individuals are messing with the Joint Drug Agreement (the drug policy) between the league and the players.

There are some real problems with this. For one, there’s no evidence other than some cryptic notes that have last names, initials that appear to describe a particular PED, and a dollar figure next to them representing money paid or owed. The inference is that players purchased PEDs from Biogenesis, but the case lacks supporting evidence. If it were allowed to proceed, the power of subpoena to gain further documents would be at hand. No matter that there’s talk that Bosch may have destroyed what little documentation is left, and that baseball is trying to pry the documentation that the Miami New Times has under the auspices that it’s official documentation. If the league can’t make a case with what it has, it is going to turn over every rock to get it.

If the judge in the case has any sense, he or she will see that this is an attempt to wrest documentation away from the media to support suspending players based on non-analytical evidence. If the league can’t catch them with a urine or blood test, by golly, it is not going to lose another case on a technicality and is unleashing legal action. If the investigative wing of the league can’t dig up enough to make its case, it will try the long shot and operate from the “what do we have to lose?” premise.

What is nearly impossible to fathom is that the league is seeking monetary relief for “damages”—as if the league has been impacted adversely by the press on a topic. Like BALCO, or Bonds, or Clemens, or one of a thousand other anti-steroid stories that we’ve heard about time and time again. As if the game has been damaged due to the actions of the implicated players. As if the defendants have breached a covenant between the league and the union over the drug policy and that this has caused “damages.” Isn’t that a bit ironic? I mean, there’s a drug policy that punishes players based upon the collective bargaining process. So, when the league can’t get the players on that, it will go after the alleged source based on weak evidence.

As if.

The league should be lauded for the great work that it and the MLBPA has done with what can only be described as the best drug policy in professional sports. It is also good news that both parties are looking to increase the number of games a player will be suspended for testing positive. But this? This is a scare tactic. This is the boogieman. This case is about sending a message. This is about trying to make a case with insufficient evidence. Baseball, you’re swinging at a pitch in the dirt. 

Maury Brown is an author of Baseball Prospectus. 
Click here to see Maury's other articles. You can contact Maury by clicking here

22 comments have been left for this article. (Click to hide comments)

BP Comment Quick Links

Jack Thomas

This whole thing makes MLB look very bad. I would not think they would be so public about going after Braun or A-Rod.
They come across a spoiled brat that get not their way.
I would think they will have major issues with the player's union.
I write this & support getting PED's out of the game as much as possible.

Mar 25, 2013 04:21 AM
rating: 5
 
Lastblues

Would you read over my complaint against the estates of the Chicago Black Soxs? I'm having trouble calculating the monetary value of "Say it ain't so Joe" for damages purposes.

Mar 25, 2013 04:54 AM
rating: 2
 
BP staff member Maury Brown
BP staff

For those wondering, yes I will be doing part two of my attendance predictions after running the AL prior. This story was too timely to pass on.

Mar 25, 2013 08:03 AM
 
DDriesen

It is my understanding that MLB and its teams have always been very reluctant to open up their books and disclose their finances. If I were defending this case, the first phone call I make is to tell MLB that, if they persist with this farcical lawsuit, I would be serving demands for the books and ledgers for all 30 teams and MLB, from concessions, tv revenues, parking and public stadium financing. In their haste I am not sure if they wanted to open Pandora's box in this way, but when you throw out nebullous claims for damages, you permit the opposing party to discover quite a bit.

Mar 25, 2013 08:50 AM
rating: 4
 
prs130

Why would MLB's finances be discoverable in this case?

Mar 25, 2013 09:42 AM
rating: 0
 
R.A.Wagman

My assumption is to prove that there were damages that could be measured monetarily.

Mar 25, 2013 09:47 AM
rating: 5
 
DDriesen

If MLB puts in play a broad claim of financial damages, the other side has the right to receive information about their finances to see if there is legitimacy to the claim or to support alternate theories for whatever b.s. losses they claim are related to the contractual interference.

Mar 25, 2013 09:51 AM
rating: 1
 
ScottyB

Could MLB just be trying to send a signal to players and the MLBPA by doing this? It seems the easy answer to why they would bother.

Mar 25, 2013 09:16 AM
rating: 0
 
prs130

Why is this such a long shot? Biogenesis is presumably aware that steroids are banned by joint agreement of MLB and MLBPA, and is presumably aware that its customers are ballplayers operating under that agreement. If you believe the evidence, Biogenesis is assisting ballplayers to breach the agreement by taking PEDs. That sounds like tortious interference with a contract to me.

Even if you don't believe the evidence, that's still enough to get to the discovery stage, at which point you have access to pretty much anything under the defendants' control. If I'm an MLB investigator with Ryan Braun in my sights, that sounds pretty good to me.

You laugh about damages, but I don't think there's any doubt that PED use has damaged the game. It's tough to hang a number on something so intangible, but that hasn't stopped plaintiffs in any other business. (And besides, the real prize here is the pre-trial discovery, not the judgment you may or may not get against a PED peddler.)

Finally, this is a civil trial with a low burden of proof. A bunch of scribbling in a notepad might not carry in a criminal case, but we're not dealing with "beyond a reasonable doubt" here. You also can't assume that they won't find additional evidence once the court orders Biogenesis and its owners to throw open their records for inspection.

Mar 25, 2013 09:39 AM
rating: 0
 
DDriesen

So if MLB had suspicion that a player bet $100 on a baseball game at a Las Vegas casino, would the casino be civilly liable to MLB because the player breached his contract with the league? The attack against an allegedly disreputable supplier of PEDs is a novel approach, but I don't see this a viable theory of liability. It's just too attenuated, but makes for a good 1L Torts class discussion.

Mar 25, 2013 09:59 AM
rating: 4
 
anderson721

which is a nightmare I'd rather not relive.

Mar 25, 2013 11:05 AM
rating: 2
 
prs130

If the casino knew he was interfering with a contract, yes. that's one of the elements of tortious interference. But it's unlikely that you could find knowledge on the part of a casino if A-Rod walked into a casino and placed a bet through a machine or with a low-level employee -- there's no knowledge on the part of the casino that they're interfering with a contract.

Biogenesis, on the other hand: did Bosch know that A-Rod was a professional baseball player? did Bosch know that steroid use was a violation of A-Rod's contract? I think I could convince a jury that the answers are Yes and Yes.

Mar 27, 2013 12:24 PM
rating: -1
 
BillyB

MLB wants to compel discovery from the defendants in this case, fish around in the paper to see what else they can get on Braun, et al and nail them. Once they get that, the case will go away with everyone on notice that they don't mess around any more. Is it worth it to MLB to press this for a few bucks for that outcome? Sure. it's also pretty shaky legal (and otherwise) reasoning to think they'll ever get beyond discovery, which is really all they're chasing.

It generally takes incredibly egregious behavior to prove a case like this, which is why I don't think it goes far. If the collective bargaining agreement is construed under NY law (a jurisdiction probably was chosen; I'd be surprised if it wasn't), this case is DOA--wouldn't survive an initial motion to dismiss. If another jurisdiction, then I don't know.

Mar 25, 2013 13:23 PM
rating: 1
 
kcboomer
Other readers have rated this comment below the viewing threshold. Click here to view anyway.

The next writer at BP that remotely takes MLB's side in a dispute will be the first. They make the ACLU look like a right-wing organization.

This action by MLB is much more likely a "message pitch". Maybe they can't win this case, but they are sending notice that they take the PED's issue very seriously and will press hard to find the proof they need to prosecute anyone.

I have no idea if MLB is our "to get" Arod and Braun, but seriously, does any one have any doubt they are using??

Mar 25, 2013 14:01 PM
rating: -5
 
Behemoth

Of course, the problem could be that MLB is launching baseless lawsuits. I'd imagine the courts don't take too kindly to being used as a fishing expedition for MLB's internal squabbles. They aren't really there for people to send messages, you know.

I also haven't noticed anyone around here suggesting that players shouldn't be suspended for PEDs, where there is reliable evidence. Some people seem to get upset that players are entitled to due process, even when you "know" who is using and who isn't.

Mar 25, 2013 16:32 PM
rating: 5
 
Chucko

I'm not really sure where your commentary about partisan politics is coming from, but hey whatever. We all have opinions.

Some things aren't open to interpretation though, like the fact that in this country we're innocent until proven guilty (I'll spare you my leftist observations about whether that's universal, but it's definitely true for people who retain attorneys). Like you, I believe that lots of these players use/have used PEDs, but that doesn't matter. It SHOULDN'T matter, and I'd hope any American could appreciate why. We all benefit from the presumption of innocence. These millionaire athletes may be jerks, they may be cheats, and they may play for that team you hate, but if their jobs are summarily terminated they have rights and protections under the law. So do you and so do I. I assume that you would take advantage of these laws if you were fired only because your boss thought you were probably taking drugs. I sure would, especially if I belonged to a union.

I don't know how players' contracts are currently worded in regards to PEDs, but I would bet that it still takes actual legal evidence of wrongdoing to get them voided or to get punishments meted out. And as Mr. Brown says, the information that the Miami New Times possesses is not currently admissible as such, and would likely be of limited value even if it were. Politics aside, this seems like MLB saber-rattling. Sounds like they'd be wise to use it just as a PR gesture and then move along.

Mar 25, 2013 17:40 PM
rating: 2
 
Chucko

Dammit. I could saved time and just written "+1 ^ Behemoth."

Mar 25, 2013 17:42 PM
rating: 2
 
SC

In addition to everything else raised, it seems to me that MLB is making a tactical mistake by potentially going after the media. As the saying goes, don't pick a fight with someone who buys ink by the barrel.

Mar 25, 2013 16:05 PM
rating: 0
 
davevdb

It would be nice if the facts were presented correctly. Braun's name was not linked to steroid use in the Biogenesis scribbles. It was mentioned that he owed them money, but there were no details. In fact the Miami New Times did not list him originally for that very reason. Try to get your facts in place especially when you charge for the privilege of reading the inaccuracies. The whole Braun decision has some bad smell to it. He was not just acquitted for a chain of custody issue as that doesn't qualify under the CBA as grounds for reversal. MLB fired Das before he could complete his written findings so the only one who knows the truth about his decision are Das, MLB, and the MLBPA. The MLBPA isn't going to come to Braun's defense, yet, as they don't want to look like they are soft on PED use, Das is doing his part and keeping quite, but MLB is screaming to high heaven like a stuck pig. If MLB really wants to stick a fork in Braun, release Das's written report. Let's see what his decision was and then we know if it was just a technicality. If it was a technicality as they keep leaking, then Braun has scarlet "S" on him. The fact MLB are trying him in the court of public opinion without being transparent makes me think they are not the honorable gentlemen in this dispute.

Mar 25, 2013 16:26 PM
rating: 0
 
BP staff member Maury Brown
BP staff

Well, if I had said that Braun was using steroids in the piece, you might have got me there. The details about Braun were about how MLB was none too pleased about losing the case and how they'd like to aggressively go after the players, the providers, and everyone else in the case. He was mentioned in the Biogenesis documentation. And, if you want to get technical, all the documentation is nothing more than scribbles. That's the point of why if the case is allowed to proceed it will allow for discovery via subpoena.

Mar 25, 2013 21:08 PM
 
frampton
(870)

How much more evidence do we need for the MLB intent than the suspension of Cesar Carrillo? 100 games: 50 for PED use, apparently based solely on the Biogenesis evidence (and not on a positive test), and 50 for allegedly lying to the MLB investigators about it. As he's not on a 40-man roster, he's not an MLBPA member, so the union can't challenge the suspension. Says here that stinks.

Mar 25, 2013 19:01 PM
rating: 4
 
Johnston

I support anything legal that will help to keep PEDs out of baseball.

Mar 26, 2013 00:48 AM
rating: 0
 
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