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MLB sues Biogeneis, Anthony Bosch, claims interference with contract

Mar 22, 2013, 11:05 AM EDT

Bud Selig AP

Major League Baseball has filed its lawsuit against Anthony Bosch and Biogenesis. There are multiple other defendants as well.* The claim: that by selling drugs to major league players, Biogenesis and Anthony Bosch “enabled such Players to possess and/or use [performance enhancing drugs] and thus knowingly and intentionally caused and/or induced such Players to breach their contractual obligations under MLB’s Joint Drug Prevention and Treatment Program not to possess or use [performance enhancing drugs].”

UPDATE: The entire complaint can be seen below.

This morning my primary legal criticism of the claims were that Major League Baseball could not show damages as a result of these acts. I have not changed my mind, if for no other reason than the contract MLB claims interference with is the Joint Drug Agreement, in which MLB has no direct financial interest. Indeed, it EXPECTS the JDA to be breached and has built in a punishment system because of it. When a player takes PEDs he violates it, by definition. Major League Baseball does not have a cause of action for breach of contract against them. How Major League Baseball expects to get greater satisfaction from an alleged third party tortfeasor than it could get from a party to the contract is … interesting.

That said, here are their damages allegations:

Due to Defendants’ actions, 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.

Nothing surprising. But also nothing which seems at all to be the stuff of a meritorious lawsuit.  It’s loss of goodwill, outside of that involving a few columnists, is impossible to quantify. Its revenue and profits are at record highs and many would argue that these were achieved thanks in part to the PED-inflated offensive numbers of the past 20 years, not despite it.

This lawsuit is crazy on its face. It should be thrown out of court. I am shocked Major League Baseball found someone who would file it.

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*The defendants:  BioGenesis of America, LLC, a Florida Limited Liability Company (“BioGenesis”); Biokem, LLC, a Florida Limited Liability Company (“Biokem”); Anthony P. Bosch (“Bosch”); Carlos Acevedo (“Acevedo”); Ricardo J. Martinez (“Martinez”); Juan Carlos Nunez (“Nunez”); Marcelo Albir (“Albir”); and Paulo da Silveira

  1. kander013 - Mar 22, 2013 at 11:19 AM

    Still can’t get over that picture of Bud and his hair color.

    • crispybasil - Mar 22, 2013 at 11:26 AM

      I’m seeing a strong resemblance to Gary Busey in that picture of Bud.

    • tomtravis76 - Mar 22, 2013 at 4:29 PM

      When is Bud going to get tested? Must be his look for Ultra this weekend.

    • nbjays - Mar 22, 2013 at 6:57 PM

      Looks like he got a deal on hair dye from Donald Trump.

  2. riverace19 - Mar 22, 2013 at 11:21 AM

    This a desperate attempt and stems more from a vendetta than anything.
    And Bud desperately needs new hair.

    • heyblueyoustink - Mar 22, 2013 at 11:30 AM

      Maybe it *is* Bud’s new hair.

  3. jcj5y - Mar 22, 2013 at 11:23 AM

    Do you have a link to the complaint? I’m curious about what law firm is representing MLB.

    • Craig Calcaterra - Mar 22, 2013 at 11:38 AM

      Post has been updated with a copy of the complaint.

  4. mplsjoe - Mar 22, 2013 at 11:27 AM

    Is the lawsuit just a stalking horse for discovery? I assume MLB will now demand every piece of paper and computer file Biogenesis has in order to discovery which players have “breached their contracts” with MLB. The goal is obtaining information, not damages. Which is crap, by the way. MLB doesn’t have a legal leg to stand on and they should be tossed before they get anywhere near the defendant’s files.

    • davidpom50 - Mar 22, 2013 at 11:50 AM

      Even if that IS the plan, does it make any sense? Discovery goes both ways. Does MLB REALLY want to open it’s books?

      • mplsjoe - Mar 22, 2013 at 12:43 PM

        My guess is that MLB thinks its lawyers are better than Biogenesis’ lawyers, and that, therefore, it will get the defendant’s info before the defendant gets anywhere near MLB’s info. I think MLB is wrong, but I would guess that’s the plan.

  5. echech88 - Mar 22, 2013 at 11:28 AM

    Does anyone else feel like even if this got some movement, that guys like Braun and A-Rod probably have WAY better lawyers than MLB heading into this and that if anything, they’ve been cooking up defenses for the past 6 weeks?

    • davidpom50 - Mar 22, 2013 at 11:51 AM

      Well… until this lawsuit, I kind of assumed MLB had the funds to hire really good lawyers, too. Now… not so sure.

    • southcapitolstreet - Mar 22, 2013 at 12:15 PM

      Unfortunately for Braun and A-Rod, they are not defendants to the suit. They can only sit on the sidelines and hope that Biogenesis and Bosch are willing and able to fight MLB’s legal team (Proskauer is a very good firm, by the way) rather than just throw in the towel and fork over the docs. I would imagine Bosch has fallen on hard times at the moment and may not have the means to defend a well-funded lawsuit by MLB.

      • artisan3m - Mar 22, 2013 at 1:08 PM

        Since Bosch, ARod, and others are rowing the same boat, it may be to ARod’s advantage to be a “friend of the defendant,” so to speak, and I doubt ARod is anywhere near destitute. Additionally, there are some very good lawyers that might take the case on contingency as a victory over MLB would be a huge feather in their cap. I doubt this case will ever see anything close to a trial. I’d surmise a competent judge would toss it because MLB does not need this “discovery” to impose suspensions. This petition if for “discovery” purposes and courts are not prone to endorsing witch hunts in civil matters.

  6. muscles1331 - Mar 22, 2013 at 11:29 AM

    I think this is more of an attempt by MLB to get Biogenesis to reveal their documentation on current players who were affiliated with the company. MLB asked a week or two ago and was rebuffed. With MLB’s resources, they are probably of the mindset that they will apply financial pressure to Biogenesis until they agree to fork over their records.

    • Old Gator - Mar 22, 2013 at 12:09 PM

      If Biogenesis isn’t already bankrupt, I’d be amazed. It already has sustained colossal legal fees to deal with criminal charges. There’s nothing there to “apply financial pressure” against.

  7. dowhatifeellike - Mar 22, 2013 at 11:29 AM

    I don’t know how they can prove (or even quantify) any of those damages except the costs of the investigation. You could argue that the rampant drug use in the ’90s made them MORE money and go that route. It certainly got the league more press and more asses in the seats.

    As far as who would file the lawsuit, everyone has a price.

  8. 14thinningstretch - Mar 22, 2013 at 11:34 AM

    I think Bud’s hair has caused more damage to the game’s reputation than PEDs.

    Seriously, how are they going to try to quantify something like “loss of goodwill”? Five bucks says they try to cite Hall of Fame voting results.

  9. Stacey - Mar 22, 2013 at 11:36 AM

    What a sh*tshow.

  10. rbj1 - Mar 22, 2013 at 11:40 AM

    Oh this is going to be great.
    MLB is shocked, shocked to find out that there are PEDs in professional sports?
    Anyone who watched the 1976 summer Olympics and saw the East German’s women’s swim team has been on notice that some athletes may be taking chemical enhancements.
    And given that Bob Gibson was given muscle relaxants in the 1968 World Series (and the WS is not a time to be experimenting)

    http://sports.espn.go.com/espn/blog/index?entryID=3926544&name=gammons_peter

    teams have used PEDs for a long time.
    Given that Mark McGwire had an open bottle of andro in 1998, a story national sports unreporters quickly quashed, one has to speculate on what has gone behind closed clubhouse doors. Clubhouse attendants are going to report on what they see to GMs, who will inform ownership.

    This lawsuit will completely backfire, exposing the hypocrisy of MLB (and other professional sports) as “you knew there were PEDs, and you didn’t care, as long as it was discrete.”

    If Tom Hicks didn’t do due diligence when handing out a quarter of a billion dollar contract to Alex Rodriquez, then he’s a bad businessman. Well, he is, but you have to be competent enough to make such a colossal mistake.

  11. hisgirlgotburrelled - Mar 22, 2013 at 11:44 AM

    The blonde Bud pic is a good one. But I’d say the smug Bud would have been more appropriate for this article.

  12. gbar22 - Mar 22, 2013 at 11:45 AM

    Such a joke. What is wrong with Major League Baseball? You endorsed peds grew the game to record highs thanks to said peds and now because of media scrutiny you are trying to show how tough you are? It’s pathetic.

  13. dlf9 - Mar 22, 2013 at 11:45 AM

    Goodness. By alledging loss of profits MLB has now made relevant and admissible all streams of revenue and all expenses. Audited financial statements from each club and related entities. I only wish that Doug Pappas was still around to go rooting through the necessary discovery that have to be provided.

    • artisan3m - Mar 22, 2013 at 1:19 PM

      That is where this case can blow up in Selig & Company’s face. The petition alleges “loss of revenue and profits.” Discovery is a two way street and this claim would legally allow the defendants to rummage through MLB’s and club’s ledgers to ascertain if this claim can be substantiated. MLB’s anti-trust protection is not absolute ~ not when its holder unilaterally puts its protections in jeopardy. So this may be just a ruse to frighten Biogenesis into, shall we say, “friendly compliance.” The odds of that happening are less than the Rangers winning the 2013 WS in four games.

  14. chomsky66 - Mar 22, 2013 at 11:45 AM

    Is this what Bill James called the Apoplexiglas Principle?

  15. DonRSD - Mar 22, 2013 at 11:45 AM

    Bud Selig is a drunk.
    Not because of this case, but because of how he talks & looks.

  16. sabathiawouldbegoodattheeighthtoo - Mar 22, 2013 at 11:54 AM

    Well, the Yankees DID have to spend $12MM on the fackin Youkstah this awfseason because that no-good bum ARoid and he steroid filled hips needed some sissy-boy dah-ctah to cut him open.

    Seriously though, whether the lawsuit succeeds or not, wouldn’t the threat of litigation from MLB serve to deter any other doctors or trainers with information about PED use from coming forward or otherwise helping in MLB investigations? For instance, would Brian McNamee speak up if he was afraid of MLB suing him?

    • rbj1 - Mar 22, 2013 at 12:31 PM

      Actually steroids do not cause hip impingements. I’ve had hip impingements long before using steroids (and the only reason I’m currently using steroids is because they were prescribed for the pneumonia I’ve had all winter.) Hip rotation is about the only thing I have in common with A-Rod (hey at 5’9″ and 132 lbs – did I mention I had pneumonia this winter – any PEDs I might have used were worthless) as I practice Aikido.

      Being the youngest to 600 home runs means A-Rod has practiced hip rotation a lot. Makes it all the more remarkable that Hank Arron, Babe Ruth and Willie Mays are the only three true 600 HR members. Doing that just wears your body out. And two of them took greenies and the other drank booze when it was unconstitutional.

      • sabathiawouldbegoodattheeighthtoo - Mar 22, 2013 at 12:57 PM

        Understood. I was trying to be ironically sarcastic. Steroids don’t cause hip impingements.They don’t cause home runs either.

  17. vansloot - Mar 22, 2013 at 12:07 PM

    IANAL, so maybe I missed something. You can sue someone for breaking a contract that they aren’t a party to? I mean, of course you CAN sue them, that’s the American Way ™, but I wouldn’t think that they would have any legal standing.

    Or was that your point, Craig?

    • Craig Calcaterra - Mar 22, 2013 at 12:16 PM

      There’s a cause of action against third parties who attempt to interfere with your contract with another person. But the third party has to have intended to mess with that contract and you have to be damaged as a result of that effort to precipitate a breach.

      Here the breach is of the Joint Drug Agreement. MLB would never get money damages for players beaching that. They get to suspend ballplayers. So how they can allege that they get money damages from a third party inducing that breach is … curious.

      • vansloot - Mar 22, 2013 at 12:24 PM

        Thanks for the clarification. I learned something today.

      • danandcasey - Mar 22, 2013 at 12:29 PM

        I would expect that MLB would contend that the negotiated remedy between the players’ association and MLB was the suspensions instead of money damages. That does not mean a player breach does not result in money damages — especially a breach that goes undetected but otherwise comes out. Such a breach may harm the MLB’s product by having fans mistrust the product on the field. I imagine that some damages expert can spin a tale.

        My impression of the lawsuit is that it is not about damages. I also do not think it is about documents. The defendants’ counsel will protect any discovered documents with a Protective Order that would prevent the use of the documents outside the present litigation. My take is that the suit is primarily about leverage. MLB will try to get the defendants to settle. A settlement would then include documents and other cooperation.

      • shawndc04 - Mar 22, 2013 at 1:30 PM

        Although the damage allegation is indeed flimsy, they can probably argue that, in addition to cost associated with investigating pes use, MLB and specific clubs are damaged when a player is suspended (loss of attendance when a star is out, etc). To me the more important issue is intent. In the complaint they seem to recognize that knowledge and intent are elements of of the claim. I do not see how they could possibly establish intent to effect a breach, even circumstantially. Knowledge is also difficult to prove. If the player himself went to the company to obtain the pas, how can the company be alleged to have intended to breach the agreement. This complaint is quite a stretch. MLB ought to be careful what they are asking for.

      • 4cornersfan - Mar 22, 2013 at 4:34 PM

        You correctly identified the weak link in the claim. the elements of tortious interference w/K are
        (1) knowledge of the contract, (2) performance of the contract was refused, (3) the defendant played an active and substantial part in causing the plaintiff to lose the benefits of his contract, (4) damages from the breached contract, and (5) the defendant induced the breach without justification or privilege to do so.
        Unless MLB can establish that it lost some ticket revenue, money from commercials, etc. that is directly attributable to Biogenesis’ acts, the complaint will get the boot. I agree with the commenter who thinks it is a ploy by MLB to get discovery of the documents.

  18. indaburg - Mar 22, 2013 at 12:28 PM

    “Due to Defendants’ actions, 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.”

    That is such a coincidence. I allege the exact same things about Bud Selig! He’s caused damage to the MLB brand and has caused injury to its reputation, image, and fan relationships. Class action lawsuit, anyone?

    • rbj1 - Mar 22, 2013 at 12:33 PM

      MLB needs to sue Jeff Loria. He’s done more damage to MLB than Anthony Bosch.

  19. djpostl - Mar 22, 2013 at 12:33 PM

    They’re just trying scare them into giving up the info on everyone. Not a surprising tactic.

  20. 4356gejm - Mar 22, 2013 at 12:42 PM

    @vansloot – Yes, a non-party to a contract may be held liable by one party to the contract, if the non-party causes another party to the contract to breach its obligations to the first. It’s called tortious interference with a contract, and here MLB is alleging that Biogenesis has interfered with the contract between the players and MLB, by supplying the players with PEDs, putting them in breach of their contract and causing MLB harm. Craig’s point is not that there is no claim, but that damages will be difficult to prove or quantify.

    How was MLB harmed if Braun’s juiced performances filled the seats? Craig’s assessment is that the only harm MLB suffered was the damage to their reputation amongst a few columnists, which was probably not capable of being damaged any further at this point anyway. I don’t necessarily agree, because there are some fans who will become disgusted with the whole thing and stop going to or watching games. Let’s see where the attendance figure head if proof of PED use by Braun, A-Rod, etc. begins to mount.

    I agree with the commenters who write that MLB is doing this to use the power of civil discovery to get access under court order to what Biogenesis will not voluntarily divulge. They’re not interested in winning this case. I mean, how much money will Biogenesis be able to pay? What MLB wants is to a) make an example of a few high-profile players in the hopes that it will scare others away from PED use, and b) make an example of these pseudo-fitness and nutrition outfits that are really fronts for illegal pharmaceutical distribution to the players. A-Rod and Braun look like perfect targets. And I wouldn’t worry about whether MLB has good lawyers. Proskauer, Rose? Good lawyers, alright. They know exactly what they’re doing, and I guarantee MLB can and will pay them a lot more, for a lot longer, than Biogenesis will be able to afford whoever they hire. Those guys are toast, and when the rats start running from the ship, we’ll see that MLB is still full of juicers, like they always have been, and then MLB will wreak their vengeance on the unfortunate few who they catch red-handed, hypocrisy be damned.

    • artisan3m - Mar 22, 2013 at 1:37 PM

      Cases like this can attract some “very good lawyers” who are not affiliated with top law firms. If the defendants prevail, those “very good lawyers” automatically become a “top law firm” in their own right …..instantly. I don’t think those named in the suit as defendants will have all that much problem providing money for a defense. Although the game and clubs are held in high esteem, Selig and Company have few friends, plus MLBPA will not be a mere spectator in this little soiree.

      • clydeserra - Mar 22, 2013 at 3:05 PM

        that’s not how lawyering works.

    • clydeserra - Mar 22, 2013 at 3:04 PM

      “some fans who will become disgusted with the whole thing and stop going to or watching games”

      as opposed to

      some fans attracted to the home runs and what not that became interested that were not before and going to games and watching on TV?

      I think there is pretty undeniable evidence that baseball’s finances improved during the time the lab was operating. Now you are trying to say, on balance, because “some fans” left baseball is worse off than before?

      there is no evidence of that.

      • 4356gejm - Mar 22, 2013 at 4:30 PM

        @clydeserra – Yes, baseball stuffed its pockets during the steroid era. Over time, though, the end result may be a net loss of fans and revenue because of continued revelations of cheating. All I’m saying is the fat lady doesn’t have her hand on the sheet music yet. But it’s really a moot point, of course, because MLB is not concerned about evidence to support their damages theory; they simply want the proof of who was being supplied.

        @artisan3m – Your scenario may be true in some cases, but I guarantee Proskauer, Rose did not put the B-team on the MLB account. The defense will not prevail because this is not going to trial. It is purely a vehicle for MLB to get evidence against its most prominent cheaters so it can make an example of them and hopefully deter others. And those bozos at Biogenesis in no way have the war chest that MLB does to wage this war. At the one million in legal fees mark, MLB won’t even have broken a sweat, and the Biogenesis rats will be squealing.

  21. randygnyc - Mar 22, 2013 at 1:07 PM

    Proskauer and Rose are one of the top firms in NYC. They handled some real estate contract cases I’ve consulted on.

  22. anythingbutyanks - Mar 22, 2013 at 1:31 PM

    Has there been a better time in baseball (or sports in general) history for a sports writer to have a legal background? I can’t imagine Craig thought he’d be drawing on that background quite this much when he made the jump.

    • Craig Calcaterra - Mar 22, 2013 at 3:34 PM

      Actually, if it were not for all the stuff I wrote about the Mitchell Report and PEDs when I was an amateur, I may never have made the jump. That stuff got me noticed back in 2007-08.

  23. jdouble777 - Mar 22, 2013 at 2:04 PM

    You are very wrong. The defamation of character is legit and will be held up as a case worth review. This I believe may be all they are concerned with as it provide MLB with the records/information needed to progress toward suspensions and possibly bans. Should the aforementioned persecution transpire they would be less probability players would continue to try their luck. Moreover, should they actually win the civil case there would possibly be less clinics/doctors offering. Should they lose civil they could also end up criminally liable.

    • clydeserra - Mar 22, 2013 at 3:06 PM

      “Should they lose civil they could also end up criminally liable.”

      When did civics stop being taught in school and when can it start again?

    • pilferk - Mar 22, 2013 at 3:14 PM

      They can’t be criminally liable for selling to MLB players, specifically.

      And the fed has already said they have no interest in persuing charges against Biogenesis’ owners, staff, etc.

      Civil damages (which is all MLB can sue for) have to be “real”, given the type of suit being filed. They have to be discernable, proveable, and documentable. There are no “penalty” damages for this type of suit. So if MLB loses, they gain nothing monetary.

      They could, though, gain valuable info to be used against the players they have their sights set on. Or, all things considered, they could lose those arbitration hearings that inevitably arrive because of the source and credibility of the information.

  24. dparker713 - Mar 22, 2013 at 2:45 PM

    Isn’t this exactly the sort of thing that the players said would happen for years when they were resisting drug testing? I can’t imagine why you’d ever agree to expand the power of the league when they insist on acting like petulant children.

  25. pilferk - Mar 22, 2013 at 3:09 PM

    See, I look at this suit and think it’s more about disclosure than damages. If they can get a judge who’s at least willing to go through the pre-trial motions (literally and figuratively)…MLB can finally get there hands on the Biogenesis records that the Miami Times refused to turn over.
    Which means they an now start going after the players named in those documents, which is what they wanted to be able to do, in the first place.
    It’s not really about the damages..they could care less if it gets thrown out at trial or if they lose the suit. Winning would just be a happy bonus. They just want it to get past the initial motions to dismiss by the Biogenesis attorneys.

    • 4356gejm - Mar 22, 2013 at 4:32 PM

      Amen, pilferk. You got it. Wonderful thing, that subpoena power.

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