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Saturday, March 23, 2013

MLB files suit against Biogenesis connections

Major League Baseball filed a lawsuit Friday against Anthony Bosch and five others connected to the South Florida anti-aging clinic that allegedly provided some of the game’s biggest stars with performance-enhancing substances.

The suit, filed in the 11th judicial circuit in Miami-Dade County, Florida, charges that Bosch and his associates “actively participated in a scheme ... to solicit or induce Major League players to purchase or obtain PES (performing-enhancing substances) for their use in violation of MLB’s Joint Drug Prevention and Treatment Program.”

The filing continues by saying that the defendants “intentionally and unjustifiably interfered” with MLB’s drug program and as a result, “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.”

EvilBoWeevil Posted: March 23, 2013 at 02:43 AM | 21 comment(s) Login to Bookmark
  Tags: alex rodriguez, hgh, melky cabrera, nelson cruz, peds, pes, ryan braun

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   1. bobm Posted: March 23, 2013 at 07:45 AM (#4394865)
In short, MLB accuses Bosch of being a PES dispenser.
   2. boteman Posted: March 23, 2013 at 08:42 AM (#4394871)
Pondering...can I sue MLB for violating my policy of not paying to watch baseball games? Probably not, since I'm not a sovereign nation like MLB is.
   3. Walt Davis Posted: March 23, 2013 at 08:43 AM (#4394872)
Is this just so they can "discover" all the notebooks, etc. and get them sworn to? Seems a bit convoluted otherwise.
   4. tyler Posted: March 23, 2013 at 08:53 AM (#4394875)
This is definitely just a discovery tool, plus a PR bump with a certain segment of fans. Given that it's so transparently about discovery, though, I'd think the judge might be willing to stay discovery pending a motion to dismiss (meaning that if Biogenesis could show that even assuming the facts alleged are true, MLB's legal theories don't entitle them to anything, the suit goes away before the names come out).
   5. Bob Tufts Posted: March 23, 2013 at 10:01 AM (#4394886)
Yes, MLB was certainly economically damaged by the "chicks dig the long ball" steroid era. Increased attendance, TV ratings and merchandise sales had to cause severe problems - figuring out how to divide the money.
   6. McCoy Posted: March 23, 2013 at 10:07 AM (#4394888)
The filing continues by saying that the defendants “intentionally and unjustifiably interfered” with MLB’s drug program and as a result, “MLB and Ray Schalk haved 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.”


FTFY
   7. Arbitol Dijaler Posted: March 23, 2013 at 11:27 AM (#4394937)

Is this just so they can "discover" all the notebooks, etc. and get them sworn to? Seems a bit convoluted otherwise.


They may get the notebooks if there's no doctor-patient privilege involved (I can't remember what this clinic purported to be), though the cause of action seems shaky, so if I'm the judge I might stay discovery pending the defendant's motion to dismiss. As for getting them sworn to, they're much more likely to get it sworn that the person who wrote them doesn't specifically remember, but agrees it's his handwriting. Whoop de do.
   8. dlf Posted: March 23, 2013 at 03:16 PM (#4395002)
Since MLB claims to be damaged by lost revenue and profits, they have just made all the financial records of each of its teams and their affilited entities relevant and discoverable. MLB must be assuming that either Biogenis doesn't have the money to defend or that the judge will put a stringent protective order on any discovery provided to the defendants but at the same time allow the plaintiff nearly unlimited use of discovery it receives. I only wish Doug Pappas was still with us to dig through what will be revealed in this mess.
   9. Pat Rapper's Delight Posted: March 23, 2013 at 04:00 PM (#4395013)
I only wish Doug Pappas was still with us to dig through what will be revealed in this mess.
   10. boteman Posted: March 23, 2013 at 04:21 PM (#4395020)
How does MLB even have standing to sue for discovery of documents? As pointed out above, what damages have they sustained through the actions of Biogenesis? Is MLB now a State investigative agency? I can't believe this article didn't come out on April 1.
   11. dlf Posted: March 23, 2013 at 04:27 PM (#4395021)
#9 -- thank you for the correction and I wholeheartedly agree.
   12. RoyalsRetro (AG#1F) Posted: March 23, 2013 at 04:33 PM (#4395023)
How does MLB even have standing to sue for discovery of documents? As pointed out above, what damages have they sustained through the actions of Biogenesis?


I would think MLB will say they have been defrauded in that these players should not be owed millions of dollars due to the fraud they have perpetrated through enhanced performance or something like that.
   13. boteman Posted: March 23, 2013 at 04:38 PM (#4395024)
Then that is between MLB and their players, perhaps breach of contract (to which Biogenesis was not a party).
   14. RoyalsRetro (AG#1F) Posted: March 23, 2013 at 04:49 PM (#4395032)

Then that is between MLB and their players, perhaps breach of contract (to which Biogenesis was not a party).


Not if it was an alleged conspiracy.
   15. Walt Davis Posted: March 23, 2013 at 04:50 PM (#4395033)
“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.”

Other than possibly "costs of investigation", all of the above is true when players/managers drive drunk. I hope MLB will file suit against Budweiser et al because they have "actively participated in a scheme ... to solicit or induce Major League players to purchase or obtain" alcohol.

I am looking forward to Francisco Cervelli's "Yeah, I was induced ... that's the ticket" defense. :-)
   16. Howling John Shade Posted: March 23, 2013 at 04:52 PM (#4395034)
I would think MLB will say they have been defrauded in that these players should not be owed millions of dollars due to the fraud they have perpetrated through enhanced performance or something like that.

It looks like it's a tortious inteference claim. That seems plausible enough to get some discovery.
   17. Ray (RDP) Posted: March 23, 2013 at 04:56 PM (#4395036)
I don't know anything particular about Florida law, but at first glance I've got these thoughts/predictions. I'm happy to have it explained to me if I'm off base with any of this:

1. This seems like a transparent effort by MLB to obtain evidence on specific players through discovery with the goal to discipline said players. It comes on the heels of MLB, lacking subpoena power, (a) unsuccessfully attempting to obtain Biogenesis documents from the Miami newspaper, and (b) unsuccessfully attempting to obtain evidence from minor league pitcher Cesar Carillo, who does not fall under the Joint Drug Agreement, and therefore was banned 50 games for being on Biogenesis's documents and another 50 games for allegedly lying to MLB by claiming he didn't know Bosch.

2. This suit will not survive a motion to dismiss.

3. Depending on the jurisdiction it's quite possible that no discovery will be allowed unless the suit does survive the motion to dismiss.

4. The legal theory, that the defendants damaged the sport by providing players with performance-enhancing drugs (if stated accurately by the media), is highly suspect. (A) The defendants are not a party to the Joint Drug Agreement and have no connection with MLB per se; so the claim would have to be some sort of tortious interference - but this seems very broad for a tortious interference claim. (B) MLB and the MLBPA fully expect the Joint Drug Agreement to be violated by players; this is not special in and of itself. And (C) the idea that PEDs damaged the sport is fantastical at best, given the explosion in revenue over the past two decades.

In these regards, I find the lawyer's statement quoted in TFA to be shaky on its face:

Added Steven Eckhaus, a New York lawyer with Katten Muchin Rosenman L.L.P.: "If I sold drugs to a baseball player, the league might say it damaged the goodwill of the league and its ability to make money and prosper. That's probably a good claim."

Did the league itself sue BALCO on these grounds, or the smaller dealers like Radomski or McNamee? If so, I missed it.

5. Granted I haven't read the filing, but it's hard for me to understand the tortious interference claim. TFA says:

The filing continues by saying that the defendants "intentionally and unjustifiably interfered" with MLB's drug program and as a result, "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."

However, again, the JDA is an agreement which spells out certain violations, and everyone _expects_ a percentage of the players to violate the agreement. Violating the JDA does not destroy the agreement; punishment for violations and a process for dealing with them are specifically provided for and the JDA survives such violations -- that is one of the main points of the JDA, i.e., to handle violations. It is not the type of contract which tortious interference typically applies to.

MLB would also have problems proving damages.
   18. Howling John Shade Posted: March 23, 2013 at 05:03 PM (#4395038)
Typically, tortious interference of contract applies to situations where an employee is induced to leave a company and take work with him or disclose the company's trade secrets in an effort to destroy the company.

True, and almost all of my tortious interference knowledge comes from law school, but it seems to me that if a company was systematically inducing employees of a competitor to violate their contracts - even if the violations didn't rise to the level of dissolving the contract - they would be vulnerable to a tortious interference claim. I don't think dissolution of the contract is a required element of the claim most places (and it doesn't look like it is in Florida).
   19. Ray (RDP) Posted: March 23, 2013 at 05:33 PM (#4395049)
I read the full filing, albeit without exhibits. No surprises differiing what was discussed above. Basically, it's a tortious interference of contract claim, alleging that the defendants (which includes Bosch but also others such as Melky Cabrera's agent), knowing of the JDA, induced the players (named in the media) to violate the JDA, thereby "intentionally and maliciously" interfering with the JDA, and that therefore MLB has suffered damages in the form of revenue, attorneys' fees, lost profits, injury to reputation, etc.

The basic claim alleged by MLB is that the defendants:

1. induced the players to use PEDs that would violate the JDA;
2. represented to the players that their use of the PEDs wouldn't trigger a violation of the JDA; and
3. concealed the players' identities.

The lawsuit specifically mentions that the Miami paper has this info.

   20. Joe Kehoskie Posted: March 23, 2013 at 05:44 PM (#4395054)
I'm not a lawyer, but isn't it possible that this is just a placeholder effort of sorts on the part of MLB in an attempt to ensure records aren't destroyed before the various state and/or federal agencies get around to investigating, issuing subpoenas, etc.?

Otherwise, tortious interference claims are almost always all about the money, but I can't imagine MLB expects to recover much from the listed cast of characters.
   21. Publius Publicola Posted: March 23, 2013 at 06:36 PM (#4395068)
No surprise that this place decided to locate in Florida. They have the loosest drug laws in the country. All the oxy addicts get their stuff in Florida, one way or the other, and it's also where the meth labs get their raw materials.

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