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FENNO: MLB’s Biogenesis squeeze little more than legal hidden-ball trick
Major League Baseball had a problem.
Last year's 5,136 tests for performance-enhancing drugs through the Joint Drug Prevention and Treatment Program didn't uncover the festering scandal around a now-defunct Miami anti-aging clinic named Biogenesis. Instead, a weekly newspaper did the job in January. The steroid era that commissioner Bud Selig proclaimed over in 2010 surged back to life with all the vigor of a vitamin B-12 injection.
In the absence of failed tests, MLB went shopping for a solution to tie players to the clinic and Anthony Bosch. The Miami New Times, which broke the story, wouldn't be cajoled into turning over detailed records obtained from the clinic. MLB has no subpoena power. So, it created some.
In March, MLB filed a civil lawsuit against Biogenesis, Bosch and several associates in Miami-Dade County circuit court alleging they interfered with MLB's drug program. No, the lawsuit wasn't intended to right a wrong, but, instead, to dredge up evidence to punish players that otherwise wouldn't be obtainable and, in the process, tidy up the game that isn't as clean as Selig believed.
Think PEDs and looming suspensions are the black cloud hanging over MLB at the All-Star break? Try this lawsuit that's driving the effort instead, as whatever moral high ground baseball held on the issue has been ceded to a strategy every bit as muck-ridden as the shady clinic run by a make-believe doctor.
"They have no intent of getting anything from Tony Bosch," said Richard G. Johnson, an Ohio attorney who has written about the issue for the Sports Law Blog. "They just want to put him in a squeeze where they can essentially extort him. You're not allowed to do that. In any sense of the imagination, that's a frivolous lawsuit."
This isn't just another attorney talking. Johnson edited the American Bar Association's 1,003-page volume, "Rule 11 Sanctions." For those not inclined to legalese, that portion of federal rules governing civil litigation procedures details sanctions against attorneys for, among other things, frivolous arguments and lack of factual investigation.
Among the lawsuit's sob-story claims is the contention, as dubious as it is unsupported, that MLB suffered damage to finances and "fan relationships" because of Bosch's gang. Perhaps the roster-shredding Jeffrey Loria should be next up in MLB's supposed quest. The reality of an information grab, though, is as transparent as Selig's comb-over.
"A very well-funded plaintiff is going after these small fries not to go after them, but to go after bigger fish [players]," Johnson said. "They're trying to circumvent their own collective bargaining agreement."
But — presto! — MLB didn't need old-fashioned failed urine or blood tests to weed out the ne'er do wells when an army of high-priced lawyers could use the judicial system to bludgeon any scrap of evidence from a series of third parties. Gargantuan law firm Proskauer Rose fronts the effort that includes, thus far, flipping Bosch to cooperate. His choice: face protracted, expensive litigation against MLB's virtually limitless resources or start naming players. The message is simple: cooperate or we'll bury you. Help us and we'll help you.
Take me out to the ballgame indeed.
"Going through litigation is traumatic enough," Proskauer Rose's website reads. "We do what we can to avoid adding to that trauma."
The trauma, instead, has been heaped on the defendants. Hundreds of pages of subpoenas have been issued, according to the court, that include records from cellphones and shipping companies as MLB's gang has blitzed ahead with discovery. That's even extended to dragging in people like former University of Miami pitching coach Lazaro Collazo, not a party to the case, who surfaced in the Biogenesis records and whose medical records came into MLB's possession. The exercise has become nothing more than a thinly veiled proxy for MLB's investigation. Bosch, conveniently, has remained a defendant.
"This is so unusual in terms of the posture of the parties and the illicit purpose of which this lawsuit is being used," Johnson said. "This is a very rare misuse of the court system."
Selig's scorched-earth approach risks making this less about any players involved than MLB's tactics in obtaining evidence — any evidence — for what could become MLB's most wide-ranging discipline since the Black Sox scandal in 1919. Think the MLB Players Association will have a concern or two if a player is suspended without a failed test, on Bosch's word or off evidence collected at lawyer-point? A nuclear winter (or summer) of litigation and labor discontent isn't hard to imagine.
The drug agreement, after all, was collectively bargained and, as argued by defense lawyers, is pre-empted by federal labor law. That's the contract MLB claims Biogenesis violated. So, the case, like the NFL concussion litigation, may not even belong in state court.
In the effort to clean up a cleaned-up game, Selig's MLB has dirtied itself as much as the scourge it claims to be fighting. That's something even the All-Star game's well-manicured grass at Citi Field can't hide.
"He's basically going down into Tony Bosch's gutter," Johnson said, "and taking baseball's reputation with it."
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