MLB sues Biogenesis, but to what end?

Mike Stobe

MLB recently filed a lawsuit against Anthony Bosch's Biogenesis in an attempt to gain leverage against players and possible inflict retribution on the firm that has once again sullied MLB's integrity in regards to PED use. What could come of the suit, and is there a more subtle reason for legal action?

This past Friday, March 22nd, Major League Baseball officially filed a lawsuit against Biogenesis in Florida State Court. For those of you not already familiar with Biogenesis, it is the firm headed by Anthony Bosch, who allegedly supplied numerous MLB and MiLB players with various performance enhancing substances banned by Major League Baseball.

The league is already investigating the entire operation, and more specifically, what part, if any, the players already mentioned as clients of Biogenesis, may have played. Players linked to Biogenesis include Ryan Braun, Nelson Cruz, Gio Gonzalez, and Alex Rodriguez. Some documents have already made their way to the surface via sources and reporters, but MLB seems to think that there is far more information out there, and they want to get their hands on it.

The lawsuit states that Biogensis and Anthony Bosch's actions adversely affected MLB financially by:

"...scheming to provide banned performance-enhancing drugs to players in violation of their contracts."

Any logically thinking individual can see that how difficult it would be for Major League Baseball to prove this in a court of law, using evidence, witnesses, etc. Sure, once you've proven that the players bought the substances from Biogenesis, how do you suppose the league will prove the players actually took the drugs? Moreover, numerous defenses could be concocted that would keep some reasonable doubt on the table.

Overall, this case seems fruitless as far as recouping any profits lost, as proving that the league actually lost any profits due to their players taking these drugs is possible. In fact, some might argue that players who play better, chemically enhanced or not, cause fans to spend more money, thus enhancing MLB's revenue. Just look at the increase in ticket prices and merchandise sales during the late 90's, it's clear that no matter how much fans despise PED use, if they don't know about it, they will continue to pay money to see these enhanced players.

In a piece for ESPN, Buster Olney made a semi-obvious but still astute observation.

"Forget the possible recompense. This is all about discovery, and if it works -- if it works -- it's an absolutely brilliant approach by Major League Baseball to get some subpoena power and access to information about drug use in Miami. It's their Trojan horse, a possible game-changer and something that should scare the heck out of players who have been hiding their PED use behind the legal system."

Essentially, Olney is saying that MLB doesn't even think it can win this case. The whole point behind the case is the all-important early stage of discovery. Basically, to begin a lawsuit, the plaintiff files a complaint containing essentially a statement of the facts, allegations, causes of action and damages or remedies sought in relief. In response, the defendant can reply with a pre-answer motion to dismiss. The defendant can assert more than one of these, which relate to jurisdiction and venue issues, service of process issues, failure to join a necessary party and the coveted failure to state a claim upon which relief can be granted.

In this case, Biogenesis will most certainly file a pre-answer motion to dismiss for failure to state a claim upon which relief can be granted, which basically asks the court to dismiss because that the facts in the complaint do not support the claims asserted by MLB.

If the judge does not dismiss the case, the defendant needs to file an answer to to the complaint and then the two sides must get together to discuss and plan how discovery is going to work. Initial disclosures are then required to be made by both parties to get the ball rolling. Discovery involves using tools (e.g., depositions, requests for production, etc.) to get facts to build the case/defense.

All information relating to the allegations, except those covered by privilege, are fair game. Parties may also motion for protective orders to block discovery for a variety of reasons or they may motion to compel discovery if the other side refuses. Questions of trial admissibility are handled post-discovery.

So, think about it, if this case gets to the discovery phase, MLB will have a chance to look at every document and interview every person involved in Biogenesis, which most likely includes lots of incriminating evidence, not against Biogenesis, but against the players suspected of involvement. MLB, not being a legal body, can then use that evidence to take action against said players, trainers, or anybody else involved in the process affiliated with MLB. It could also help MLB to determine better methods of deterring such actions in the future.

The second statement, that this lawsuit could scare players already named into coming clean or doing something else stupid, is a reasonable conclusion. Guilty people tend to act irrationally when backed into a corner, but lawyers rarely do. So, if the players have good representation, it shouldn't be an issue.

So, MLB's true intentions are fairly transparent, but also quite possibly very effective. Here's the problem. This case may never reach the discovery phase, as Biogenesis and Anthony Bosch's lawyers will most likely file a pretrial motion to dismiss the suit due to an inability for MLB to prove their case, no matter what the league uncovers. In this, Biogenesis and Bosch probably have a point, and if the trial never reaches discovery, this attempt by MLB will be a shot over the bow, but not one that sinks the battleship, or even a destroyer.

If the case isn't thrown out, Biogenesis may be amenable to a quick settlement with MLB, which may include an agreement to provide incriminating documents or evidence, which is what MLB wants all along

In a separate article by Olney on the subject, he notes a depressing but probably fact.

"However, sources tell "Outside the Lines" that the records have probably been destroyed by Bosch and former Biogenesis employees."

So, even if the lawsuit isn't thrown out of court, and it reaches the discovery phase, there's a more than even chance that the records and documents no longer exist. That would be a shame, but neither I, Buster, nor anyone else, should fault Major League Baseball for trying.

Food for thought:

Is MLB right in trying every avenue to uncover the truth behind Biogenesis' shenanigans? Should the players already named be scared, or merely shrug this lawsuit off as a big "swing and a miss"?

Thanks to Eric Merenstein, 2L at Cardozo Law, for assistance with legal issues involved in this article.

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