MLB Commissioner Bud Selig speaks during a news conference in New York

Major League Baseball’s lawsuit against Biogenesis should be laughed out of court


And should probably cause the lawyers who file it to be slapped with sanctions, but I’ll get to that in a minute.

In case you missed it, the backstory here is that Major League Baseball plans to sue Biogenesis today in an effort to obtain the documents it has thus far been unable to obtain and which it needs to punish ballplayers like Ryan Braun and Alex Rodriguez for taking performance enhancing drugs.

There are, however, a few slight problems with this strategy. The largest being that this is a transparent and cynical attempt by Major League Baseball to obtain documents to discipline its employees, not an attempt to vindicate an actual legal injury, and courts do not like to be used in such a fashion.

Baseball has loudly lamented that it (a) has no way of getting the Biogenesis documents; and thus (b) has no way of punishing the ballplayers named in the documents. For them to now, suddenly, tell a judge that this is really about redressing some legal injury it suffered at the hands of this little clinic is laughable in the extreme. If someone had handed them a box of documents last week they would have never considered suing Biogenesis. They are now suing with the sole intent of getting documents. Which is problematic because the purpose of the legal system is to redress legal injury, not to be used as a cudgel in some employment dispute involving non-parties to the lawsuit or to help sports leagues with their public relations problems.

Baseball’s lawyers probably realize this, so they will not be so dumb as to put the real purpose of the lawsuit in the complaint. They will assert some legal claim in the suit — maybe tortious interference with a business relationship? — and claim they were damaged. Indeed, an expert cited in the New York Times story about all of this lays out how that might look:

“If I sold drugs to a baseball player, the league might say it damaged the good will of the league and its ability to make money and prosper,” Eckhaus said. “That’s probably a good claim.”

This would be a fun deposition:

Defense lawyer: Mr. Selig, your claim asserts that baseball has not been able to make money and prosper as a result of performance enhancing drugs like those alleged to have been given to your players by my client, yes?

Selig: Yes sir!

Defense lawyer: Can you tell me, Mr. Selig, how baseball’s revenues, profits, attendance, TV ratings and popularity have been negatively impacted as performance enhancing drugs?

Selig: …

Defense lawyer: Mr. Selig, you’d agree with me, wouldn’t you, that since the mid-1990s through the present day, baseball has had unprecedented financial success, yes?

Selig: …

Defense lawyer: And that this period, often called The Steroid Era, is when performance enhancing drugs proliferated?

Selig: …

Defense lawyer: And that now baseball is experiencing a mind-boggling windfall due to television dollars and exploding franchise values?

Selig: … well, um, that may be true. But Mr. Lupica is really, really upset.

It’s total nonsense to suggest financial damage here. If baseball asserts in its complaint that it has suffered financial damage due to the actions of Biogenesis it is lying. If it does not assert financial damage the complaint will be thrown out for failing to state a legal claim.

And it may be total nonsense for Major League Baseball to articulate a theory of recovery even if some damages claim can be cobbled together. I no longer have access to my magic legal research resources, but I’d be rather surprised if there is any kind of rich case history in which companies have been allowed to sue drug dealers for selling to its employees.  Employees are not the company’s property. They have no standing to assert such claims. Baseball would have a better claim against the NFL for damaging its brand than it would have against Anthony Bosch.  The Beatles would have just as good a claim against Yoko Ono for breaking them up than Selig would have against Biogenesis.

Baseball is having a highly-publicized, real time temper tantrum. It has been impotent in its attempts to obtain the Biogenesis documents and it casting about for any way to obtain them. That it is now looking to waste scarce legal resources in an ill-conceived lawsuit to do what it has been unable to do otherwise is every bit as shameful as it is unlikely to succeed. If they get a bored judge who doesn’t care about such things maybe this has some legs for a while. If they get a judge like most judges I’ve ever known — ones who do not abide nonsense like this — they could very well find their lawsuit dismissed with a quickness and their lawyers sanctioned as a result of the frivolity of the claims they are about to assert.

But hey, there’s part of me which actually wants this thing to go forward. Because if baseball is going to disingenuously claim that it has suffered financial damages as a result of all of this, it will have to turn over financial documents to prove that such damages exist. Tell me: when was the last time baseball was eager to do that?

Ken Griffey Jr. will be on the cover of MLB The Show 17

SEATTLE - APRIL 18:  Ken Griffey Jr. #24 of the Seattle Mariners bats against the Detroit Tigers at Safeco Field on April 18, 2010 in Seattle, Washington. (Photo by Otto Greule Jr/Getty Images)
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Sony San Diego announced on Thursday that Hall of Famer Ken Griffey Jr. will grace the cover of its next baseball video game, MLB The Show 17. The game is scheduled to be released on March 28, 2017 for the PS4.

Considering that the baseball and video game fans with disposable income are the people who grew up watching Griffey play, the decision comes as no surprise. It’s just shocking that this hadn’t been done before. The Show has featured current stars on its cover including Josh Donaldson, Yasiel Puig, Miguel Cabrera, and Andrew McCutchen, but this will be the first time a retired player will be featured on the cover.

Griffey, of course, is no stranger to video game covers. He was the inspiration for Ken Griffey Jr. Presents Major League Baseball (Super Nintendo), Ken Griffey Jr.’s Winning Run (Super Nintendo), Major League Baseball Featuring Ken Griffey Jr (Nintendo 64), and Ken Griffey Jr.’s Slugfest (Nintendo 64, Game Boy Color).

Griffey, 46, was inducted into the National Baseball Hall of Fame this past July along with Mike Piazza.

Curt Schilling is already getting clobbered by Elizabeth Warren in the 2018 senate race

NEW YORK, NY - APRIL 27:  Former ESPN Analyst Curt Schilling talks about his ESPN dismissal and politics during SiriusXM's Breitbart News Patriot Forum hosted by Stephen K. Bannon and co-host Alex Marlow at the SiriusXM Studio on April 27, 2016 in New York, New York.  (Photo by Cindy Ord/Getty Images for SiriusXM)

I realize it’s early. I realize that we have one big election coming up in less than two weeks and that 2018 may as well be 2218 as far as the election is concerned. But it’s probably worth mentioning that, at the moment, Curt Schilling isn’t doing too well in the Massachusetts Senate race.

To be fair, he hasn’t officially declared himself a candidate yet. He said he has to get the OK from his wife first. But as a famous Massachusetts resident, it’s not like he needs to spend a lot of time working on the stuff just-declared candidates do. He’s got name recognition bleeding out of his socks. Which makes this somewhat sobering:

It’s been many, many years since I worked on a political campaign, but I feel qualified to give Schilling some advice: more memes. Post as many political memes on Facebook as Twitter as you can. It doesn’t even matter if they’re true as long as they feel true to you. Right now the important thing is to mobilize the base.

Yep, fire everyone up. They’ll certainly flock to you then. Good luck, Curt.