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The Feds won’t give info to Major League Baseball in the Biogenesis investigation. Good.

Jan 31, 2013, 7:36 AM EDT


Michael S. Schmidt of the New York Times writes this morning about the relationship between the Drug Enforcement Agency and Major League Baseball in the Biogenesis clinic investigation. They are not working hand-in-hand:

While the league’s investigators are attempting to learn as much as they can about the report, they are hamstrung by players’ longstanding refusals to speak to them and by the federal government’s reluctance to provide baseball with information it has uncovered in its own investigations.

The lack of player cooperation Schmidt refers to is the refusal of players to talk about other players’ drug use which he contrasts with the cooperation cyclists have given the Unites States Anti-Doping Agency. Ratting out each other in exchange for reduced suspensions and the like. Which should be pretty understandable at this point given that Joint Drug Agreement entered into between the league and the union provides no basis for leniency in punishment. It’s, by design, a zero-tolerance program. If you start letting guys off for ratting out other guys, you don’t have a zero-tolerance program.

Indeed, what you have is a breeding ground for mistrust and a strong incentive for those players for whom a 50-game suspension is extremely financially harmful to throw their teammates under the bus based on either real or fabricated information.  The players obviously wouldn’t want that. But the owners — and their employee, Bud Selig — wouldn’t want that either in all likelihood because in addition to violating baseball’s longstanding rule of “what happens in the clubhouse stays in the clubhouse,” such a setup could serve to destabilize teams and create problems for managers, GMs and owners.

As for the lack of government cooperation with Major League Baseball: well, good.  Major League Baseball is a private business, not an arm of the government and I have never been comfortable with the idea of the government doing special favors for private business, especially in a law enforcement context. If they want to do their own investigation, let them (and they are).

As Buster Olney noted on Twitter this morning, the fact that federal investigators gave drug dealers like Kirk Radomski and Brian McNamee leniency for cooperating with the Mitchell Report investigators was ridiculous.  George Mitchell did not represent the government. His interviewers worked for DLA Piper. We think of baseball as some greater institution, but that setup was no different than a cop compelling someone to talk to McDonalds or Microsoft or Wal-Mart. If law enforcement is to give leniency to criminals in exchange for cooperation, that cooperation should be to the benefit of the public good, not to the benefit of the corporate good.

This all goes back to what I was talking about on Tuesday: what are the priorities here? Is the priority to get headlines with famous names being hung out to dry or is the priority to break up what may very well be an illegal drug distribution network? Back in 2007 the feds, led by the overzealous-in-the-extreme Jeff Novitzky, decided that it was more important to prosecute famous people to get their names in the paper. That didn’t really work out too well, so it’s understandable now that the feds might not have all that great an interest in putting the squeeze to A-Rod — which is what would be the purpose of cooperation with MLB — and a much greater interest in taking down a drug operation. That would be benefited by NOT talking to folks outside of law enforcement.  Folks who, you know, like to do things like leak information to the New York Daily News I-Team.

So good for the feds for treating this like any other law enforcement operation. The folks who are mad that government power isn’t being used to either make headlines or make a billion dollar corproation’s p.r. operation smoother probably need to ask why those things are important to them in the first place.

  1. chip56 - Jan 31, 2013 at 7:59 AM


    No drug policy is going to eliminate drug use in sports, just as no government drug policy is going to eliminate drug use in outside of sports. MLB’s priority has to be punishment of those who are caught. They are trying to send a message to the players that says, “We know some of you are going to do this; we know you’re going to look for an edge and you think you won’t get caught. We are getting better at catching you though and when we do, consequences will be severe.”

    In your cynical, lawyer mind that might sound like all MLB is trying to do is grab headlines, but I think it’s the most reasonable approach they can take given the resources available to MLB. As for the priority for the Feds – it should be to break up the doping ring and if they can compel players to testify then they should and then MLB, and the public at large, will be made aware of that testimony.

    What I would like to see is for contracts to contain a clause where teams can void the contracts of any player who tests positive for the use of banned substance. However, if a team enters into a contract with a player who has already tested positive (such as Toronto with Melky Cabrera) then no such provision exists.

    • Craig Calcaterra - Jan 31, 2013 at 8:02 AM

      Chip — I was not referring to MLB trying to grab headlines. I am saying that the feds, if they choose to share their info and get big names like they did back in the Novitzky days, would be trying to get headlines.

      I have no problem with MLB doing whatever it needs to do to get to the bottom of this thing and punish those who violated the JDA. I take no issue with that whatsoever.

      A contract-voiding clause would trump and make irrelevant the entire Joint Drug Agreement between the league and the union. If you’re fine with tearing that up, great. But I don’t think anyone else is.

      • natstowngreg - Jan 31, 2013 at 11:55 AM

        Prosecutors using their discretion to get headlines by making themselves look tough on the bad guys? Holy Thomas E. Dewey! [Kids, ask your grandparents about Thomas E. Dewey.]

        Seriously, you make excellent points. MLB is investigating possible violations of its collectively-bargained drug policy. The Feds are investigating violations of Federal criminal law. The latter trump the former.

    • paperlions - Jan 31, 2013 at 8:05 AM

      What I would like to see the baseball owners and baseball writers not treating their meal ticket like they are criminals. PED use is only considered a big deal in baseball because those two groups want it to be a big deal, and really, neither group seems that interested in facts, just in nailing hides to the wall….which is funny since players are the basis for 100% of baseball revenues and without them the writers don’t have a job.

      Have a dynamic testing program that attempts to keep up with available technology, punish those that are caught, and call it a day.

      • koufaxmitzvah - Jan 31, 2013 at 8:38 AM

        The only reason the owners are interested in drug penalties is to find their own way out from under massive contracts that brought less than expected/wanted results. The owners made money while dishing out the PEDs and speed for decades. The owners are only worried about their own meal tickets and no one else’s.

      • paperlions - Jan 31, 2013 at 9:00 AM

        Except that the CBA doesn’t allow voiding of contracts, and by smearing the players they are potentially hurting interest in the league and their own profits. This is just horrible PR with no upside.

      • mtr75 - Jan 31, 2013 at 10:53 AM

        Hey paperlions, want to call me a moron again for saying Pay-Roid is done?

        Eat it, buddy.

      • paperlions - Jan 31, 2013 at 12:57 PM

        You appear to be a moron regardless of the ARod situation. Good luck with that.

      • churchoftheperpetuallyoutraged - Jan 31, 2013 at 11:59 AM

        You are quoting the NYDN as evidence is as useful as posting a link to The Onion.

      • deathmonkey41 - Jan 31, 2013 at 1:56 PM

        Heh heh, the Onion.

      • badintent - Feb 1, 2013 at 12:58 AM

        Bud, It’s WADA on the line. Do you want to take the call.?
        Nah, they’ll tell me they have the latest testing for HGH and EPO, stuff that caught Lance.Too much $$ for MLB to spend . We’re in the baseball biz, not in law enfrocement

    • nategearhart - Jan 31, 2013 at 9:24 AM

      Why should the public be made aware of a player testifying against a drug dealer to the feds? Are you made aware of the people who testify against heroin or meth dealers?

      • freddieoh - Jan 31, 2013 at 10:26 AM

        Ever heard of the Confrontation Clause, amigo?

      • nategearhart - Jan 31, 2013 at 11:28 AM

        That just covers the accused being able to “witness” the witness bear witness, right? This commentor is saying “…the public at large will be made aware of that testimony”. I’m asking why the public, not the accused drug dealer, should be privy to the witness testimony.

  2. chomsky66 - Jan 31, 2013 at 8:03 AM

    What does Heyman have to say on this?

  3. heyblueyoustink - Jan 31, 2013 at 8:18 AM

    I didn’t want Phil Collins involved with this in the first place.

  4. Old Gator - Jan 31, 2013 at 8:25 AM

    Did anyone see where I left my glasses? Shit….

    • jrbdmb - Jan 31, 2013 at 8:44 AM

      You might want to check Lost & Found at the Feesh-atorium.

    • historiophiliac - Jan 31, 2013 at 10:12 AM


  5. dcarroll73 - Jan 31, 2013 at 8:48 AM

    I made a related comment on the other thread on this issue. My concern is the likely HIPAA violation. If that is the only reason that the feds (or anyone else) suspects something, doesn’t this raise serious issues for what can be admitted into evidence? What is the term, “fruit of the poisoned tree” or some such? Or does that rule only apply to police violations? Craig, please apply your cynical lawyer mind to this (is that anything like a reptile brain? I’ll have to ask my Samoan attorney.)

    • historiophiliac - Jan 31, 2013 at 9:45 AM

      I don’t fully understand your question but HIPAA applies to your doctor — not the feds. Even with HIPAA, medical info can be obtained for investigation (although that often requires a subpoena) — it depends on the situation. It is a policy of every investigatory agency I am familiar with not to share information while an investigation is ongoing, unless it’s with another agency with which a worksharing agreement has been made. That is usually an agency rule and is designed to protect the integrity of the investigation…although there are some privacy protections generally that apply in investigations (but you’d be surprised how often lawyers violate these themselves).

      • churchoftheperpetuallyoutraged - Jan 31, 2013 at 10:28 AM

        I don’t fully understand your question but HIPAA applies to your doctor — not the feds

        HIPAA generally applies to all individuals involved with patient information, not just your doctor. Even if you work in claims for a healthcare company, you are bound by HIPAA to not release any of the information you’ve learned through your job.

      • historiophiliac - Jan 31, 2013 at 10:37 AM

        Because that is related to your medical treatment and comes from the health care provider. Go read the FAQ’s on the HHS website. HIPAA does not apply to employers, government agencies, etc. There are other privacy laws that may apply — but even HIPAA has an exception for investigatory agencies.

      • churchoftheperpetuallyoutraged - Jan 31, 2013 at 10:58 AM

        employers, government agencies, etc.

        Understandable, but the question wasn’t regarding the fed’s and information, it was about the doctor who released it. The doctor is breaking HIPAA laws, not the feds.

      • historiophiliac - Jan 31, 2013 at 11:23 AM

        Well, I’m glad you understood it then b/c I was confused whether he was talking about someone unnamed (he didn’t say doctor or whatever) or the feds. I was offering my 2 cents on the fed part. The other part I didn’t weigh in on b/c I didn’t know who he was talking about.

      • churchoftheperpetuallyoutraged - Jan 31, 2013 at 12:01 PM

        Sorry, I should have made it clear in my original post. Although as we know that the doctor or whomever leaked the info would most likely guy a flier on the HIPAA violation to testify against others.

        What’ll be really interesting is most likely MLB can’t do anything against Arod because they have zero subpoena power. So they’ll likely wait out the federal investigation. However, what happens if the Doctor pulls a Greg Anderson and refuses to testify? Now we have no corroboration against Arod, and he should skate free.

      • historiophiliac - Jan 31, 2013 at 12:19 PM

        If they have a workable case, the feds might get a subpoena to make the doctor testify. It might be possible to get that info after the fact then. Or, MLB/Yanks could sweat A-Rod to get him to sign a waiver for his records from the doctor. If he has a good lawyer, they would resist, but that won’t mean MLB won’t try it (and/or leak that A-Rod refused to sign the waiver).

      • churchoftheperpetuallyoutraged - Jan 31, 2013 at 1:20 PM

        Even if the Feds subpoena the doctor, they can’t force him to testify. It’s why I brought up Greg Anderson. The big issue in the Bonds case was, while the feds had all the schedules and workout regiments for Bonds, they couldn’t prove Bonds knew what he was taking. The only guy who could, Greg Anderson and Bonds’s personal trainer, refused to testify against him. In fact, Anderson spent over a year in jail in contempt of court for refusing to testify.

      • historiophiliac - Jan 31, 2013 at 1:51 PM

        Refusing to testify is different than not being able to compel him to divulge info…which is why he went to jail. Legally, there is a mechanism to compel testimony. Most often, people try to avoid going to jail for contempt. The question is, then: does the “doctor” in this case have the same nerve? My guess based on the article is no, but that remains to be seen.

      • gsrider911 - Jan 31, 2013 at 1:31 PM

        The Biogenesis guy Tony Bosch is not a doctor, so unless the whole clinic and services performed therein are considered convered by HIPAA, leaking their interactions are probably not a HIPAA violation.

      • historiophiliac - Jan 31, 2013 at 1:56 PM

        I think it likely that A-Rod’s attorney would argue — if necessary — that A-Rod believed that the man had a medical license and that his privacy protections should apply even if he was duped. These are all things the courts would have to sort out.

  6. natslady - Jan 31, 2013 at 8:56 AM

    I think I’m a fairly typical fan. When we got the team here, I went to a few games, took my mother, bought some gear.. I knew all the players’ names, but honestly, I enjoyed the food and the “experience” as much as the competition, which was pretty lousy. But when the team started to WIN, I got a (partial) season ticket plan, started re-arranging my schedule for games, and bought a LOT of gear. It was exciting, you got “pumped,” you saw Curly W’s all over the city, suddenly there was Nats talk on sports radio… I don’t play fantasy or bet on sports, though.

    As we enter this year, “our year,” I don’t want a tainted World Series. Part of me know that some guys in the clubhouse are using (just on a percentage basis) but in the past you could assume they were marginal guys clinging to their roster spot. Now, if Gio goes down (and he may not, the evidence is FAR from convincing) you have to wonder–I have to wonder–how pervasive is the drug-using culture in OUR club–not your club, but OUR club.

    And that’s the bottom line–when you become a fan you become emotionally committed (maybe even financially committed, if you bet or play fantasy). I want our guys to win, but I don’t want them to”cheat.” Are those mutually exclusive desires?

    • natstowngreg - Jan 31, 2013 at 11:44 AM

      They are not mutually exclusive desires. But often, they are mutually exclusive realities.

      As a Nats fan (and part of a season ticket group) since the beginning, it’s nice that the team hasn’t been implicated, while becoming a championship contender. But I’m enough of a realist to understand that we Nats fans can’t say, those things only happen to guys on other teams.

      If there actually is evidence that Gio Gonzalez cheated (haven’t seen any), then he should be punished according to the rules. I’ll be very disappointed, both in Gio as a person and in the effect on the team’s chances. I will still be a Nats fan. [BTW, the Giants lost one of their best players last season to a drug suspension, and somwehow managed to win the World Series.]

  7. flosox - Jan 31, 2013 at 8:58 AM

    This guy is a doppleganger for one of the Observers on Fringe! Which by the way, got really weird towards the end. I’m a JJ Abrams fan, but he got a little out there on that show.

    See, i’m trying to distract everyone so that we can talk about baseball again, not PED’s. Its like sitting with your buddy who won’t shut up about the girl that dumped him 5 years ago, move on!!

    • thegreatstoneface - Jan 31, 2013 at 9:55 AM

      …yes. move on already!!

      well, wait. there’s news breaking about drugs and athletes…er. no, let’s not move on quite yet, let’s stick with it and see what the hell’s going on *this* time…

    • Francisco (FC) - Jan 31, 2013 at 10:25 AM

      This guy is a doppleganger for one of the Observers on Fringe!

      So that makes him January right?

  8. DelawarePhilliesFan - Jan 31, 2013 at 9:36 AM

    “Michael S. Schmidt of the New York Times….”

    S? His middle name is Jack

    • freddieoh - Jan 31, 2013 at 10:29 AM

      You think you know Jack Schmidt?

  9. jrobitaille23 - Jan 31, 2013 at 9:40 AM

    It’s kinda strange how PED use in baseball is getting so much attention yet virtually every NFL player is saucing or on HGH or both. The players union is stalling so much when it comes to HGH testing because they are all on it. Yet, the fans or public doesn’t seem to bat an eye at this. Maybe it’s because it’s such a violent sport or just accepted for so long we don’t mind. Baseball has this rich history with great players and all these stats/records that mean so much. Clean players from yesteryear (segregation, pills, coke, alcohol notwithstanding) had clean stats and we don’t want those tarnished by dirty players.

    • churchoftheperpetuallyoutraged - Jan 31, 2013 at 10:05 AM

      Clean players from yesteryear (segregation, pills, coke, alcohol notwithstanding) had clean stats and we don’t want those tarnished by dirty players.

      What era was clean again?

  10. raysfan1 - Jan 31, 2013 at 9:54 AM

    The NFLPA is pushing back on the HGH testing because it requires blood draws whereas the steroid and amphetamine tests are urine tests. Regardless, catching anyone will be luck because HGH metabolizes extremely quickly. The one British rugby player who got caught a year or two ago got nailed because someone ratted him out. HGH has also never been shown to benefit any healthy person’s performance anyway.

    • churchoftheperpetuallyoutraged - Jan 31, 2013 at 10:04 AM

      Not only did the gov’t get tipped off, they knew exactly when he was getting a shipment. So he didn’t even fail a drug test, the feds just showed up with the mail delivery and busted him.

  11. dcarroll73 - Jan 31, 2013 at 9:16 PM

    This “wonderful” web site did not seem to allow me to reply in the thread I started on the HIPAA implications of this A-Rod case so I will post a separate comment here. People not trained in HIPAA are posting very off-base info on how it works. I have worked for several medical entities over the last 15 years, and I have been forced to take a number of HIPAA training sessions. I was NOT a licensed medical person; I am an IT guy. Nevertheless since I worked in those organizations, EVERYONE was required to abide by these rules. Disclosures were punishable under the federal code. My question comes down to the legal rules on evidence (Craig??) If the only grounds for a subpoena (federal or other) is information ILLEGALLY disclosed, is this a valid grounds? To me it seems outrageous. I care FAR more about medical privacy than I do about all this nonsense about PEDs. Please take your witchhunts elsewhere.

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