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All quiet on the Biogenesis lawsuit front

Mar 25, 2013, 5:01 PM EDT

lawsuit gavel

Major League Baseball filed the lawsuit against Biogenesis on Friday. My view is that it’s a ridiculous, meritless claim asserted solely for the purposes of obtaining documents, not vindicating any actual legal rights.

My view of that is that is based on a legal analysis of the claim, the lack of a damages case and my understanding of the nature of the Joint Drug Agreement which baseball says Biogenesis interfered with. But sometimes analogies work way better. I like this one from a Roger Abrams in this Reuters analysis of the suit:

Roger Abrams, a sports law professor at Northeastern University in Boston, used the example of player contracts that call for the player to hit specific weight targets in spring training.

“Does that mean you can sue McDonald’s for selling Big Macs to this guy?” he said.

Hey, at least a team could hope to recover something from McDonalds if they were successful.

In other news, when the Miami New Times story first came out a couple of months ago, Mike Lupica and a host of other sportswriters hastily wrote angry columns saying that, boy oh boy, if only Major League Baseball could get people under oath this thing would be blown wide open. Since Friday, however, I’ve been unable to find any columns or commentary from the usual suspects lauding Major League Baseball for its lawsuit.

What’s up guys? Wasn’t this what you wanted? Or were you just being angry then and hadn’t yet thought out the end game?

  1. schuch10 - Mar 25, 2013 at 5:09 PM

    That is a horrible analogy, as eating McDonalds is not specifically banned in their K. Weight limits are not analogous to outlawed substances. You seem to miss all the intricate details in this lawsuit which has left many intrigued. Isn’t your answer as a lawyer supposed to be “maybe?”

    • ezthinking - Mar 25, 2013 at 5:28 PM

      Perfect analogy. There have been efforts to sue McD’s for this – remember the suits about getting kids fat with Happy Meals? Yeah, that got thrown out of court.

      BTW – There are lots of things that baseball bans that are perfectly legal and sold at GNC.

  2. chacochicken - Mar 25, 2013 at 5:12 PM

    Would MLB sue a large quantity drug dealer if 10 players were found with drugs of abuse instead of PEDs?

  3. thebadguyswon - Mar 25, 2013 at 5:16 PM


  4. 4356gejm - Mar 25, 2013 at 6:17 PM

    At the risk of being found to repeat myself, the analogy of McDonald’s is false, as are all the other analogies to gun manufacturers, etc. Of course the case against McDonald’s will fail, because the product being sold doesn’t necessarily lead to a contract violation if eaten, and the seller has no reasonable way to forsee that the sale would lead to a contract violation. Here, the player and the PED seller both know that the only use for the products is not only illegal, but in violation of the player’s contract, and the seller can reasonably forsee that the likely, no, the inevitable consequence of the sale would be a contract violation by the player. I agree that damages may by difficult to prove, but liability is another story. And, as a lawyer, you know that the plaintiff only need allege a cause of action to file the suit, and not prove their case in the pleadings. That’s what discovery and pre-trial practice are for. MLB’s complaint will survive a motion to dismiss on the pleadings, and discovery will proceed until Biogenesis can prove, with evidence obtained in discovery, that MLB suffered no damages, if they can. In the meantime MLB will get what they want, which is access to Biogenesis’ records.

    And let’s stop being outraged by the gamesmanship. This stuff happens all the time. When it is particularly egregious, the parties and lawyers are sanctioned. Headed for 30 years in the practice of law, I don’t see this as a particularly egregious example, and I expect no one will be sanctioned. Really what motivates the outrage is not the merits of the claim, but the gall of MLB to make it. And there I have to agree – MLB has got to have trouble walking with stones like that hanging between their legs. But that doesn’t mean their suit doesn’t have enough merit to survive a motion to dismiss on the pleadings and that it won’t give them access to the Biogenesis records before it gets tossed on the merits, if it ever does.

    • ezthinking - Mar 26, 2013 at 12:19 AM

      If you have been in the law for 30 years, you should understand a 12(B)(6) motion. Your description says otherwise. Any defendant can make the motion that requires MLB to show it has been damaged. The defendants don’t have to prove anything – MLB has the burden of proof. I know its been 30 years, but please re-read your first year civil procedure text.

      It’s a defunct company. Likely no one shows up for it. So who responds to a discovery request? No one. So they then subpoena the newspapers. And the newspapers run behind the First Amendment to protect their sources who -by the way – likely violated HIPAA. Author heads to jail for non-compliance, becomes a hero to other writers. Find a source? There are civil and criminal penalties for HIPAA violations, 42 USC § 1320d-5, so I doubt any of the sources would be too interested in stepping into the light and even less interested in testifying so they take the Fifth.

      So what’s left? A bill for the costs in pursuing this charade and more questions than answers.

  5. rlj2170 - Mar 25, 2013 at 10:35 PM

    wow! lawyers sure do use alot of words to say nothing

  6. cur68 - Mar 26, 2013 at 2:23 AM

    By my count we have three lawyers arguing law. Only one of them is getting paid to do it. Once again, Craig wins.

    • stex52 - Mar 26, 2013 at 11:28 AM

      Cut to the chase, cur. Good job.

  7. bravojawja - Mar 26, 2013 at 9:46 AM

    Out of curiosity, when a player takes PEDs, is he breaking his contract with the team or just the Joint Drug Agreement? If he’s breaking the contract, can’t the team cancel it and stop paying the guy? Because that’s not what ever happens. The player is suspended for 25, 50, or 100 games and goes right back to work for the same team under the same terms of the same contract.

    Basically, if the player isn’t breaching his contract by taking PEDs, how can MLB accuse Biogenesis or anybody else of helping a player breach the contract? Breaking the JDA, sure, but that’s a different animal, right?

  8. krispc - Mar 26, 2013 at 10:52 AM

    So if you had an iPhone and the Apple agreement stated that you could never ever buy an Google phone once you purchased an iPhone then Apple could sue Google for Billions if Google sold you one?

    That is MLB’s argument really?

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