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The Strike Zone

Did Selig, MLB cross the line in paying for Biogenesis documents?

Bud Selig Bud Selig and MLB are trying to rid PEDs from the sport but their methods are questionable in this case. (AP)

Commissioner Bud Selig's office has paid a former employee of Biogenesis of America, the Florida anti-aging clinic believed to have provided a significant number of active players with performance enhancing drugs, for documents related to those drug transactions. That is according to a New York Times report on Thursday citing "two people briefed on the matter."

 

This news comes after MLB's request for documents was rebuffed in mid-March by the Miami New Times, the weekly paper that broke the Biogenesis scandal in late January, and after subsequent news that MLB was suing six people associated with the since-shuttered clinic, including owner Anthony Bosch, in what appeared to be a clear attempt to establish the subpoena power required to obtain the clinic's documents.

According to the Times report by Michael S. Schmidt and Steve Eder, one factor that led to MLBs decision to pay for evidence was the revelation that at least one player implicated in the scandal has purchased Biogenesis documents with the intent of destroying them, and that other players have reportedly pursued a similar tack. However, MLB's decision to compensate for its lack of legal power with spending power could ultimately undermine whatever case it is able to build from the evidence it does acquire.

The Times report quotes Columbia Law School professor and former federal prosecutor Daniel C. Richman who points out that the exchange of money for evidence undermines the credibility of that evidence. Quite simply, money provides motivation for evidence to be falsified, and the willingness to exchange evidence for money, rather than allow it to travel via legitimate legal paths, suggests a weakness of character on the part of the individual providing the evidence. It could well be, then, that in finally obtaining the evidence it has so desperately sought over the last couple of months, evidence which the commissioner seems to hope will provide him with sufficient cause to hand down suspensions for what MLB has termed "non-analytic positives," MLB has actually undermined its case rather than strengthening it.

This development is disturbingly redolent of the George Steinbrenner-Howie Spira affair of nearly a quarter-century ago. In that case, then Yankees owner Steinbrenner paid Spira, most commonly identified in contemporary news coverage as a "known gambler," for dirt on then Yankees rightfielder Dave Winfield in order to gain leverage in a dispute over Steinbrenner's contribution's to Winfield's charitible foundation. Steinbrenner's actions in that case prompted then-commissioner Fay Vincent to declare Steinbrenner permanently ineligible in July 1990 under the same best-interests-of-baseball rule that rendered Pete Rose permanently ineligible the previous year.

Spira's identity as a "gambler" painted him as an underworld figure, but, if the allegations are true, what were Bosch and his employees at Biogenesis other than drug dealers?

In a March 1990 report in the Times, Murray Chass presented the question facing Vincent that would determine whether or not Steinbrenner deserved permanent ineligibility as this: "Did an owner of a baseball team violate the 'best interests' standard by pursuing, accepting and apparently paying for information from another party and then using that information against one of his own players?"

Selig, of course, believes that he is acting in the best interests of baseball in trying to crack down on performance-enhancing drug use, a defense Steinbrenner could not have made, but there are still major questions that have to be answered. First and foremost: Has the commissioner crossed a line by "pursuing, accepting and apparently paying for information from another party" with the intent of "using that information against one [or more] of his own players"?

Also, is it really in the best interests of baseball for the commissioner to be paying accused drug dealers thousands of dollars in a desperate search for evidence that would allow him to suspend one of the game's best players (Ryan Braun has previously been identified as baseball's "Public Enemy No. 1") for the bulk of the coming season?

What's more, is there much chance of such a suspension being upheld given the power of the Major League Baseball Players Association and the questionable means through which the evidence was acquired? The only suspension MLB has issued thus far in connection with this case was to minor league pitcher Cesar Carrillo, who, because he is not on any team's 40-man roster, is not a member of the union. That seemed a clear sign that baseball was leery of triggering a grievance by the union on the behalf of one of its players, something the acquisition of evidence would seem designed to protect against, or would have had it been acquired through proper legal channels.

I understand Selig's desire to rid baseball of performance-enhancing drugs, his frustration over the incomplete success of past measures and his desperation, at age 78, to clarify this aspect of his legacy. However, the decision to pay for evidence in this case has actually reversed his course. Despite some minor missteps, Selig has made great strides in repairing Baseball's reputation on this front over the last decade, moving from anarchy to accountability, but with this latest action, taken in defiance of the law, baseball appears to be headed back toward anarchy.
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