By Jay Jaffe
Determined to find a route via which it can uncover enough evidence to discipline the players linked to the Miami anti-aging clinic Biogenesis, Major League Baseball is taking its fight to the courts. On Tursday night, the New York Times' Michael S. Schmidt reported that the league was planning to file a lawsuit against several individuals connected to the clinic, including Dr. Anthony Bosch, on the grounds that they damaged the sport by providing those players with performance-enhancing drugs.
As noted earlier this week, MLB lacks the subpoena power to compel testimony from the players who are said to be named in the clinic's records, they have been stymied in their efforts to obtain the evidence uncovered by the Miami New Times, and the governmental interest in the case which they hoped would aid them has been limited to the Florida Department of Health's investigation into Bosch. Thus far, MLB has only been able to hand down one suspension, a 100-game ban of minor league pitcher Cesar Carrillo, who isn't on any team's 40-man roster and thus is not protected by the drug policy that's part of the Collective Bargaining Agreement between the owners and the Major League Baseball Players Association.
This suit, which was filed in Florida state court on Friday morning, represents a new strategy via which the league would be able to subpoena the now-shuttered clinic's records to compel testimony and produce enough evidence to suspend players for so-called non-analytic positives. But it appears to be a desperation move with little chance of success.
According to Schmidt, legal experts are split as to whether the strategy could work. He quotes lawyer Steven Eckhaus as one who thinks the suit could have merit: "If I sold drugs to a baseball player, the league might say it damaged the good will of the league and its ability to make money and prosper… That's probably a good claim."
Without further elaboration, however, even that statement seems shaky when one considers the extent to which baseball's revenues have grown steadily over the past two decades even amid the BALCO scandal, the Mitchell Report and the implication of numerous stars — including Alex Rodriguez, who's also one of the Biogenesis bunch — as having used steroids via other means, not to mention the global financial crisis. Almost exactly a year ago, Forbes magazine's Mike Ozanian wrote, "The National Pastime is flourishing thanks to cable companies’ desire for live baseball programming. The average Major League Baseball team rose 16% in value during the past year, to an all-time high of $605 million."
In December, Biz of Baseball's Maury Brown reported that after two years of relatively flat revenues, MLB took in $7.5 billion in 2012, and that after adjusting for inflation, baseball's revenues have increased 257 percent since 1995.
Does that sound like a league whose good will and ability to prosper has been damaged? Brown also pointed out that new national broadcast television deals with Fox, ESPN and TBS, as well as franchise-based deals such as that of the Dodgers could push revenue above $9 billion in 2014. Those deals aren't going anywhere even in the face of a scandal in which as many as 90 major and minor leaguers are said to have been named in the clinic's records.
Schmidt doesn't provide a quote from an expert more skeptical about MLB's tack, but the baseball blogosphere has its share of lawyers who have offered their perspective. From HardballTalk's Craig Calcaterra:
"Major League Baseball’s lawsuit against Biogenesis should be laughed out of court… this is a transparent and cynical attempt by Major League Baseball to obtain documents to discipline its employees, not an attempt to vindicate an actual legal injury, and courts do not like to be used in such a fashion.
"Baseball has loudly lamented that it (a) has no way of getting the Biogenesis documents; and thus (b) has no way of punishing the ballplayers named in the documents. For them to now, suddenly, tell a judge that this is really about redressing some legal injury it suffered at the hands of this little clinic is laughable in the extreme. If someone had handed them a box of documents last week they would have never considered suing Biogenesis. They are now suing with the sole intent of getting documents. Which is problematic because the purpose of the legal system is to redress legal injury, not to be used as a cudgel in some employment dispute involving non-parties to the lawsuit or to help sports leagues with their public relations problems."
Via Twitter, FanGraphs' Wendy Thurm (@hangingsliders) wrote, "I'm quite skeptical of MLB's legal theory v Biogenesis. But we need to know which state's law at issue ... Perhaps Florida law recognizes broad interference claims. I doubt it but don't know. Also, many state courts allow discovery before... viability of legal theory is resolved. CA courts allow document discovery to proceed while motions to dismiss are pending."
In other words, MLB may have a window to obtain documents before the suit is dismissed — but as ESPN's T.J Quinn said via Twitter, "Sources say they believe Bosch destroyed remaining documents." Quinn also noted that MLB's suit has since been filed in Florida state court:"They're seeking all materials. Now, do they still exist…?"
Whether or not they do, it seems entirely possible that MLB could be handed another embarrassing high-profile defeat. In a follow-up post, Calcaterra wrote that "the contract MLB claims interference with is the Joint Drug Agreement, in which MLB has no direct financial interest. Indeed, it EXPECTS the JDA to be breached and has built in a punishment system because of it. Via Twitter, he added, "This lawsuit doesn't survive a motion to dismiss."
While the commissioner, owner and players have built the strongest drug policy in professional sports, its limitations — particularly its lack of teeth beyond the testing regime — will be on public display as the case goes forward. By compelling testimony from non-union players (as it did regarding Carillo) and offering immunity to users who testify against Bosch and other players — a strategy the league is said to be pursuing, according to officials who spoke to USA Today's Bob Nightengale — the league has created the perception that it is abandoning two principles at the core of the Joint Drug Agreement: due process in handling each case and zero tolerance for violators.
Furthermore, if the case does somehow manage to proceed, it could linger for years; consider the lifespans of the BALCO proceedings, and the perjury/obstruction of justice trials of Barry Bonds and Roger Clemens, which cost millions upon millions of dollars and — in the case of the two superstars — resulted in one relatively minor conviction out of 10 counts brought to trial (six for Clemens, four for Bonds), that of Bonds for obstruction of justice by providing an evasive answer to a question under oath. MLB and the players' union have taken laudable steps in their attempts to clean up the game. While one can understand their frustration due to the limitations of their power in the Biogenesis case, the league's desperation may well wind up doing more harm than good. Even a successful lawsuit won't win back fans who have been turned off by the past two decades of PED scandals, and a frivolous one will only leave Bud Selig and company with egg on their faces.