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. 
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