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

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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?

Chapman has trouble remembering convo with Cubs management about off-field behavior

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CHICAGO — Star closer Aroldis Chapman joined the Cubs on Tuesday, arriving to a mixed reaction in Chicago and saying he couldn’t remember what management told him about off-field expectations and behavior.

After Chapman’s awkward introductory news conference, Cubs president of baseball operations Theo Epstein insisted Chapman understands what the Cubs expect of him after an offseason domestic violence incident.

When the Cubs announced the trade with the New York Yankees on Monday, the team released a statement from Chairman Tom Ricketts saying they were aware of his 29-game suspension to begin the season under Major League Baseball’s new domestic violence policy.

Ricketts said he and Epstein talked by phone with Chapman before the deal was completed and “shared with him the high expectations we set for our players,” adding that Chapman was “comfortable” with them.

But when asked repeatedly about that phone conversation before Tuesday’s game against the crosstown White Sox, Chapman said through an interpreter that he couldn’t recall details because he was taking a nap at the time the call came in.

The question was asked several more times. A Cubs spokesman once asked the question himself to the interpreter, coach Henry Blanco.

“It’s been a long day,” Chapman said. “Trying to remember.”

Asked again several minutes later during the group interview if he could now remember what Ricketts said, Chapman shook his head.

“I still don’t remember,” he said in Spanish.

Epstein called it a misunderstanding and that Chapman was “pretty nervous” as he faced seven cameras and more than two dozen reporters.

“I was on the call, Tom was on the call, Aroldis was on the call and Barry Praver, his agent, was on the call. It happened and it was real,” Epstein said before the Cubs’ 3-0 loss to the White Sox.

Chapman was accused of choking his girlfriend and firing eight gunshots in the garage of a Florida home in October. The woman later changed her story and no charges were filed.

“You learn from the mistakes that you make,” Chapman said.

The case caused the Los Angeles Dodgers to back out of an offseason trade for Chapman. Cincinnati eventually traded him to the Yankees, and after his suspension, the 28-year-old Cuban converted 20 of 21 save chances for New York.

The Cubs have long boasted of stocking their roster with high-character players, helping earn the “lovable losers” label they’ve carried for decades since their last World Series title in 1908.

But the Cubs (59-40) have retooled their roster under Epstein and have the best record in the major leagues despite Tuesday’s loss in which Chapman didn’t pitch. Chapman, who threw a 105 mph fastball last week, fills perhaps the team’s largest hole as he replaces Hector Rondon as closer.

The Cubs sent four players to the Yankees, including shortstop prospect Gleyber Torres, to get one of the game’s top relievers. Epstein said they wouldn’t have made the deal if not for the phone call he and Ricketts had with Chapman.

“Tom laid out the exact same standards that he lays out to everyone in spring training,” Epstein said. “He said, extremely clearly, `Look, Aroldis, I tell all the players this in spring training and it’s important you hear it and I need to hear from you on this. We expect our players to behave. We hold our players to a very high standard for their behavior off the field. And we need to know you can meet that standard.’

“Aroldis said `I understand. Absolutely, I can.'”

The Cubs activated Chapman before Tuesday’s game and designated left-hander Clayton Richard for assignment.

Reaction to Chapman’s acquisition in Chicago has been tepid. While there were supportive fans on talk radio, the Chicago Tribune carried a front-page column Tuesday criticizing the move. The back of the Chicago Sun-Times tabloid read “Spin City” over a picture of Epstein.

Chapman said he expected a “good reaction” from Cubs fans. He was also asked during the 20-minute meeting with reporters in the visiting dugout at U.S. Cellular Field if we would consider working with organizations looking to prevent domestic violence. Chapman said no.

Cubs manager Joe Maddon defended Chapman.

“He did do a suspension, he has talked about it, he’s shown remorse,” Maddon said. “Everybody else has the right to judge him as a good or bad person. That’s your right.

I want to get to know Aroldis. I think he could be a very significant member and he’s got the potential, yes, to throw the last out of the World Series. And if he does, I promise you I will embrace him.”

Report: Padres working on trading Andrew Cashner

ST. LOUIS, MO - JULY 21: Starter Derek Norris #3 of the San Diego Padres pitches against the St. Louis Cardinals in the first inning at Busch Stadium on July 21, 2016 in St. Louis, Missouri.  (Photo by Dilip Vishwanat/Getty Images)
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Jon Morosi of FOX Sports and MLB Network reports that the Padres are working to trade starter Andrew Cashner. He notes that a deal may be consummated before he takes the hill for Tuesday’s start in Toronto against the Blue Jays. The Marlins, Orioles, and Rangers have had reported interest in Cashner.

Cashner is 4-7 with a 4.79 ERA and a 61/27 K/BB ratio in 73 1/3 innings. He missed over three weeks between June 11 and July 2 due to a strained neck.

The right-hander is earning $9.625 million this season and will be eligible for free agency after the season.