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FENNO: Baseball’s mess with Biogenesis is really just beginning
Major League Baseball had a problem.
When multiple reports in January linked a slew of players, including Ryan Braun and Alex Rodriguez, to a Coral Gables, Fla., anti-aging clinic called Biogenesis of America, the league needed to act.
After all, commissioner Bud Selig declared baseball's era of home run totals that bulged like chemically aided biceps all but over in 2010.
"The use of steroids and amphetamines amongst today's players has greatly subsided and is virtually nonexistent, as our testing results have shown," Selig's statement said. "The so-called steroid era — a reference that is resented by the many players who played in that era and never touched the substances — is clearly a thing of the past."
Turns out that wasn't quite the case.
A three-month investigation by the Miami New Times alleged baseball's biggest performance-enhancing drug scandal since BALCO smeared cream and clear in 2002. Selig's myth disappeared. MLB tried to get notebooks filled with drug regimens and other records the New Times obtained that linked the clinic's would-be doctor, Anthony P. Bosch, to numerous players. The paper refused to help.
Enter the lawyers. Lots of them.
Led by behemoth Proskauer Rose and "global litigation boutique" Kobre & Kim, MLB sued Bosch and five associates in Miami-Dade Circuit Court 2 1/2 months ago. That perked up MLB's quest for proof, in absence of failed drug tests, like a shot of human growth hormone.
"Due to Defendants' actions," the complaint said, "MLB has suffered damages, including the costs of investigation, loss of goodwill, loss of revenue and profits and injury to its reputation, image, strategic advantage and fan relationships."
Almost immediately, requests by the plaintiffs for subpoenas and depositions crammed the docket. Bosch faced the prospect of drowning in long and costly litigation against an opponent with virtually unlimited funds.
That's important to remember after ESPN reported Tuesday that Bosch will cooperate with MLB and give a sworn deposition naming the players he supplied with performance-enhancing drugs. Twenty or more players, the report said, could be suspended in the next two weeks. Braun and Rodriguez, in particular, could draw 100-game suspensions because of alleged lies about their involvement with Biogenesis. Gio Gonzalez, who strenuously denied being implicated in the original reports, isn't expected to be among the suspended.
All on the word of the now-cooperative, now-trustworthy, now-reputable Bosch.
Funny, the magic a 14-page lawsuit can work.
The most widespread discipline in MLB since the Black Sox scandal in 1919 led to the lifetime ban of eight players. The biggest drug outbreak in the game's history. All resting on the would-be doctor MLB sued into submission. Bosch is a frequent litigation target and was never licensed to practice medicine in Florida. He holds plenty of motivation now to finger players and save himself.
Why should MLB trust one word?
The tactic would do the NCAA's bumbling investigative expeditions proud, from telling former University of Miami athletes they would be considered guilty if they didn't cooperate with investigators to paying convicted Ponzi schemer Nevin Shapiro's attorney to ask questions under oath during federal bankruptcy proceedings. That's how the NCAA got around not having the power to subpoena records or compel testimony. In the same spirit, MLB took advantage of the legal system to slink around the limits on its investigative powers, too.
All this means is the end is nowhere in sight. Remember, these potential suspensions aren't based on flunked drug tests. So, how can MLB prove, based on Bosch's testimony, that Jesus Montero or Bartolo Colon or any of the other players named in the ESPN report were injected or smeared or popped whatever nefarious concoction Bosch dreamed up? How can MLB prove Bosch, this time, is telling the truth?
If Selig admits the sport's drug policy isn't enough of a disincentive to stop a team's worth of players from cheating and starts handing out suspensions like giveaway bobbleheads, the ripples aren't difficult to imagine. The MLB Players Association, in the middle of a streak of labor peace, won't appreciate labeling several of its members drug cheats by a man MLB essentially accused of ruining the game in the March lawsuit.
Remember Bountygate, the pay-for-hits scandal surrounding the New Orleans Saints that embroiled the NFL in a series of grievances and lawsuits? This could be baseball's version. Messy, unpredictable and filled with lawyers. The problem, really, is just beginning.
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About the Author
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