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?

The Cubs clinch World Series berth with NLCS Game 6 win

CHICAGO, IL - OCTOBER 22:  The Chicago Cubs celebrate defeating the Los Angeles Dodgers 5-0 in game six of the National League Championship Series to advance to the World Series against the Cleveland Indians at Wrigley Field on October 22, 2016 in Chicago, Illinois.  (Photo by Dylan Buell/Getty Images)
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After 71 years, the Cubs are headed back to the Fall Classic.

The dominance with which Clayton Kershaw attacked the Cubs in Game 2 of the NLCS was nonexistent in Game 6 as the Dodgers’ ace loaded the bases to start the first inning and scattered five extra bases and five runs over five frames. By the time Dave Roberts pulled his starter in the sixth inning, Kershaw was sitting on a Game Score of 33, the lowest he’s mustered since the start of the 2015 season. Only one of his strikes came via curveball, and whether he was having difficulty locating his off-speed stuff or felt more confident with the fastball-slider combo, it was the fewest curves he’d seen land for strikes all year (per David Adler).

Where the Dodgers were able to give Kershaw the edge in Game 2, they found themselves powerless against opposing hurler Kyle Hendricks. Hendricks turned out 7 1/3 scoreless frames with two hits and six strikeouts, preserving the Cubs’ second shutout of the postseason and the first since they bested the Giants in Game 1 of the NLDS. After his 1-0 loss to the Dodgers early in the NLCS, seeing the MLB ERA leader turn out a gem was a relief for the Cubs, especially one as spectacular as an 88-pitch two-hitter.

With Hendricks effectively stymieing the Dodgers’ best attempts to get on base, the Cubs played to their strengths at the plate. Kris Bryant and Ben Zobrist cleared the bases in the first inning for a two-run lead, followed by a Dexter Fowler RBI single in the second. Willson Contreras came through in the fourth inning for the Cubs, lifting an 87 m.p.h. slider to left field for his first home run of October, while Anthony Rizzo hit his second homer of the postseason on a 1-1 fastball in the fifth.

Neither bullpen allowed a single run from the sixth inning onward. Dodgers’ right-hander Kenley Jansen took the ball from Kershaw in the sixth, scattering four strikeouts over three innings and denying the Cubs so much as a single baserunner through the end of the game. Aroldis Chapman, meanwhile, issued just one walk in 1 1/3 scoreless frames, inducing a Yasiel Puig double play to clinch the Cubs’ 17th franchise pennant.

With the win, the Cubs will face off against the Indians in Game 1 of the World Series on Tuesday at 8 PM EDT. And, in case you needed a reminder:

Video: Willson Contreras blasts first postseason home run off of Kershaw

CHICAGO, IL - OCTOBER 22:  Willson Contreras #40 of the Chicago Cubs celebrates after hitting a solo home run in the fourth inning against the Los Angeles Dodgers during game six of the National League Championship Series at Wrigley Field on October 22, 2016 in Chicago, Illinois.  (Photo by Jonathan Daniel/Getty Images)
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So much for Clayton Kershaw posing a threat tonight. The Cubs got their knocks in early and often against the Dodgers’ ace during Game 6 of the NLCS, racking up three runs in the first three innings before rookie catcher Willson Contreras unleashed his first postseason home run in the bottom of the fourth inning.

According to’s Phil Rogers, Contreras became the 10th Cub to homer in the 2016 playoffs, following big hits by Addison Russell, Anthony Rizzo, Dexter Fowler, Miguel Montero, David Ross, Jake Arrieta, Kris Bryant, Travis Wood, and Javier Baez. Of the ten home run hitters, Contreras joins catchers David Ross and Miguel Montero as yet another backstop capable of driving the long ball (and, less importantly, as another player capable of a sweet, sweet bat flip).

Rizzo, whose last homer was a deep drive to right field off of Los Angeles right-hander Pedro Baez in Game 4 of the NLCS, piled on Kershaw’s five-run outing with another home run in the bottom of the fifth inning. Kershaw called it a night after five frames, and the Cubs currently lead the Dodgers 5-0 in the sixth inning.