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?

Aroldis Chapman is pitching himself out of a job

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Yankees closer Aroldis Chapman looked shaky again last night, coming in to the game with a three-run lead before allowing a two-run homer to the Mets’ Amed Rosario. He would nail down the save eventually, giving Sonny Gray his first win as a Yankee, but Chapman’s struggles were the talk of the game afterward.

It was the third appearance in a row in which Chapman has given up at least one run, allowing five runs on three hits — two of them homers — and walking four in his last three and a third innings pitched. He’s also hit a batter. That’s just the most acute portion of a long slide, however. He posted a 0.79 ERA in his first 12 appearances this year, before getting shelled twice and then going on the disabled list with shoulder inflammation, missing over a month. Since returning he’s allowed 12 runs — ten earned — in 23 appearances, breaking out to a 4.09 ERA. He’s also walked ten batters in that time. At present, his strikeout rate is the worst he’s featured since 2010. His walk rate is up and he’s allowing more hits per nine innings than he ever has.

It’s possible that he’s still suffering from shoulder problems. Whether or not that’s an issue, he looks to have a new health concern as he appeared to tweak his hamstring on the game’s final play last night when he ran over to cover first base. Chapman told reporters after the game that “it’s nothing to worry about,” and Joe Girardi said that Chapman would not undergo an MRI or anything, but he was clearly grimacing as he came off the mound and it’s something worth watching.

Also worth watching: Dellin Betances and David Robertson, Chapman’s setup men who have each shined as Yankees closers in the past and who may very soon find themselves closing once again if Chapman can’t figure it out. And Chapman seems to know it. He was asked if he still deserves to be the closer after the game. His answer:

“My job is to be ready to pitch everyday. As far as where I pitch, that’s not up to me. If at some point they need to remove me from the closer’s position, I’m always going to be ready to pitch.”

That’s a team-first answer, and for that Chapman should be lauded. But it’s also one that suggests Chapman himself knows he’s going to be out of a closer’s job soon if he doesn’t turn things around.

And That Happened: Tuesday’s Scores and Highlights

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Here are the scores. Here are the highlights:

Astros 9, Diamondbacks 4: The Astros built an 8-0 lead in the first four innings thanks to six extra-base hits and then put it on cruise control. It wasn’t all rosy, though. Astros starter Brad Peacock hit a double that plated a run, but he didn’t do so well in is primary task, failing to get past the fifth inning. Houston won here, but they’ve scuffled of late and still aren’t where they’d like to be once the playoffs start.

Yankees 5, Mets 4: Good news: Sonny Gray allowed two runs over six and got his first win in pinstripes. Bad news: Aroldis Chapman was terrible again, allowing two runs on two hits in his just-barely-a-save and then winced coming off the mound, which later was revealed to be due to a tweaked hamstring. It’s unclear if he’ll miss any time. If he doesn’t, he going to need to figure out how to miss some bats, because he ain’t been doing that lately.

Nationals 3, Angels 1: Gio Gonzalez snaps the Angels’ winning streak at six thanks to six innings of two-hit, shutout ball. He was backed by two Howie Kendrick solo homers. Kendrick has been on fire since coming over from Philly at the deadline. Since the trade he’s hitting .386/.413/.727 with four homers and 11 RBI in 14 games. Nice pickup.

Rays 6, Blue Jays 4Lucas Duda hit a two-run homer and Wilson Ramos added a solo shot to help the Rays end their four-game losing streak and giving them what, for them anyway, is an absolute offensive explosion. Josh Donaldson homered for the third straight game in a losing cause.

Red Sox 10, Cardinals 4: An eight-run fifth inning by the Sox did in the Cards. Xander Bogaerts had three hits and Hanley RamirezSandy Leon and Jackie Bradley Jr. each knocked in two. The play of the game was a defensive one, though, as the Sox turned an around-the-horn triple play:

Boston has won 11 of 13.

Giants 9, Marlins 4: Giancarlo Stanton homered in his sixth straight game. The record for consecutive games with a home run is eight, held by Stanton’s manager, Don Mattingly, Dale Long, and Ken Griffey, Jr., so keep watching. That was it for the Marlins, though, as the Giants offense did some damage. Denard Span had three hits including a homer. He and Hunter Pence each drove in a pair. Ryder Jones homered. Madison Bumgarner may have given up that shot to Stanton, but he knocked in a run of his own with a single while scattering nine hits and allowing four runs in six innings.

Brewers 3, Pirates 1: Zach Davies outdueled Ivan Nova, allowing one run over six. Manny Pina drove in two and Keon Broxton hit a pinch hit solo homer for the Brew Crew.

Rangers 10, Tigers 4: Texas beat up Justin Verlander for three homers and five runs over six innings, with the dingers coming off the bats of Joey Gallo (natch), Mike Napoli and Robinson Chirinos. Gallo’s homer was estimated at 459 feet, but the most impressive part of it was that the strikeout friendly slugger did it after coming back from an 0-2 count and laying off some high heat from Verlander, who had struck him out on three pitches in his previous at bat.

Reds 2, Cubs 1: Starters Luis Castillo and Kyle Hendricks each tossed six scoreless innings, but Scooter Gennett drove in Joey Votto with a sacrifice fly in the eighth to break a scoreless tie and Billy Hamilton singled home the go-ahead run in the ninth. Votto reached base three times, all on walks, to bring himself to within a game of Ted Williams’ record for the most consecutive games of reaching twice.

Indians 8, Twins 1: Carlos Santana hit two homers and teammates Jason Kipnis, Edwin Encarnacion and Austin Jackson each went deep as well. Danny Salazar allowed one run over seven, striking out ten. Maybe this year will be the opposite of last year for Cleveland, and they’ll peak late instead of early with healthy starting pitching heading into the playoffs.

Braves 4, Rockies 3: Nolan Arenado committed a rare throwing error which allowed Brandon Phillips to score the go-ahead run for Atlanta in the eighth inning. Nick Markakis homered as the Braves get a rare win in Coors Field. Back in the day (like, 20 years ago) they owned Colorado, but the Rockies had taken 11 straight from the Braves in Denver before this one.

Athletics 10, Royals 8: The teams combined to score 11 runs in the eighth inning. Viva bullpens. Matt Joyce hit a three-run double that inning, pulling the A’s from behind. Ned Yost walked Rajai Davis to load the bases to get to minor, too which, oops. Joyce had homered earlier in the game which made it all the more questionable, but managers like their lefty-lefty matchups and their theoretical double plays. Drew ButeraEric Hosmer and Mike Moustakas all homered in the Royals half of the run-happy eighth.

Mariners 3, Orioles 1: Andrew Albers allowed one run over five for his first win in just over four years. The last came on August 12, 2013. Don’t make any plans for mid-August, 2021 if you’re an Albers fan. He had some serious help from Jarod Dyson. Look at this throw, off friggin’ balance, too:

Dodgers 6, White Sox 1: Seems unfair to let the White Sox play the Dodgers, but that’s what the schedule called for. It looked close for a while, actually, as the game was tied 1-1 in the eighth. That’s when L.A. unloaded for five runs, with the go-ahead run coming on a bases loaded hit-by-pitch of Joc Pederson followed by two-run singles from both Austin Barnes and Corey Seager. The Dodgers are no 50 games over .500.

Padres 8, Phillies 4: Cory Spangenberg homered for the third time in four games and drove in four and starter Dinelson Lamet allowed two runs over seven innings of work, striking out seven. He also leads the league in Names That Should Totally Be That Of The Main Character In Magical Realist Novels.