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?

Mitt Romney’s sons are trying to buy a stake in the Yankees

TAMPA, FL - AUGUST 30:  Tagg Romney son of Republican presidential candidate, former Massachusetts Gov. Mitt Romney gives an interview during the final day of the Republican National Convention at the Tampa Bay Times Forum on August 30, 2012 in Tampa, Florida. Former Massachusetts Gov. Mitt Romney was nominated as the Republican presidential candidate during the RNC which will conclude today.  (Photo by Chip Somodevilla/Getty Images)
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Mitt Romney built his professional life in Massachusetts and was once the governor of the state. As such, it is not surprising that he has long identified as a Red Sox fan. So this has to be troubling to him from a fan’s perspective. From Jon Heyman:

The Romney family is bidding to buy a small stake in the Yankees months after their try for the Marlins stalled. If the deal goes through, it is expected to be $25 million to $30 million per percentage point and thought to be interested in one or two percentage points. The Yankees are valued around $3 billion or more.

The effort is being led by Mitt’s son Tagg, one of his brothers and their business partners. Mitt’s spokesman tells Jon Heyman that he has nothing to do with it personally. Tagg Romney is reported to have been planning a bid for controlling interest in the Marlins, but that has fallen through.

I find this interesting insofar as the M.O. for the Steinbrenners has, for years, been to buy out minority shareholders in the Yankees, not seek more. Indeed, when George Steinbrenner bought the Yankees back in 1973 he held just a bare controlling interest and there were a ton of silent partners, most of which were back in Ohio and knew Steinbrenner from his shipping business. I’ve personally gotten to know some of them over the years as there are a handful of them in Columbus and I crossed paths with them in my legal career. They have almost all been bought out in the past couple of decades. They still get season tickets and World Series rings and stuff. You can tell them by their personalized Yankees plates and the fact that, within the first ten minutes of meeting them, they will tell you that they once owned a piece of the Yankees but got pushed out.

In light of all of that it’s interesting that the Steinbrenners are once again accepting bids for small stakes in the team. Especially from someone whose interest in controlling the Marlins suggests that they do not consider it to be a mere vanity investment. Makes me wonder what the Steinbrenners’ long term plans are.

Max Scherzer still can’t throw fastballs

WASHINGTON, DC - OCTOBER 13: Max Scherzer #31 of the Washington Nationals works against the Los Angeles Dodgers in the fifth inning during game five of the National League Division Series at Nationals Park on October 13, 2016 in Washington, DC. (Photo by Rob Carr/Getty Images)
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The Nationals will be many people’s favorites in the NL East this season. Not everything is looking great, however. For example, their ace — defending NL Cy Young winner Max Scherzer — can’t even throw fastballs right now.

The reason: the stress fracture he suffered last August is still causing him problems and Scherzer is unable to use his fastball grip without feeling pain in his right ring finger. He will throw a bullpen session tomorrow, but will only use his secondary stuff.

Scherzer has not been ruled out for Opening Day — the fact that he is throwing some means that his timetable isn’t totally on hold — but you have to figure, at some point, not being able to air things out and use his heater will lead to some problems in his spring training routine.