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Agency moves to dismiss lawsuit of the guy who made the fake Melky Cabrera website

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The ACES sports agency has moved to dismiss a lawsuit filed against it in February by Juan Carlos Nunez, their disgraced former consultant.

You may recall that, back in 2012, Nunez admitted to attempting a cover up of Melky Cabrera’s positive test for testosterone by concocting a fake website purporting to advertise a non-existent product in an effort to show that Cabrera took the substance inadvertently. The ruse was quickly discovered, Cabrera served his suspension, Nunez was banned from baseball and the ACES agency was cleared of wrongdoing by the MLBPA. Nunez was later arrested for helping recruit ballplayers for the disgraced Biogenesis lab and served three months in prison as a result of his role in the PED ring.

Despite Nunez’ admission, despite his later criminal conviction for referring ballplayers to the Biogenesis lab, and despite ACES being cleared of wrongdoing, Nunez sued ACES back in February, alleging that ACES agency, among other things, encouraged him to help players get PEDs and encouraged him to make the fake Cabrera website, paying him off to take the fall. It’s not a criminal complaint, mind you: Nunez is looking to get paid for what he admits were illegal acts he carried out.

At the time the complaint was filed, ACES owners Sam and Seth Levinson called the lawsuit a “shakedown” and reminded observers of Nunez’s sketchy history. That was the public response. Today comes the legal response: a motion to dismiss the complaint, filed a few minutes ago.

ACES notes at the outset of its motion that, per his plea agreement in the criminal case several years ago, Nunez was required to make a full disclosure regarding his misconduct and that he then admitted to being the “organizer, leader, manager, or supervisor” of the scheme. He made similar statements to the press, disclaiming any involvement by ACES in the phony website plan. Given how the feds have worked in these PED cases, they very likely would’ve gone easier on Nunez if he could credibly point a finger at someone more significant. That he couldn’t do that then and, only now, years later, is claiming ACES’ involvement is suspect, the motion argues. Indeed, it goes much farther than that, arguing “Nunez’s motive is clear: to extort a settlement from ACES whose business depends on its reputation and client relationships.” The “shakedown” referred to in ACES’ statement in February.

I’ll go one farther than that: if Nunez is telling the truth in his complaint, he’s admitting that he lied to a sentencing judge back in 2015. Which is bold strategy, Cotton.

All of that being said, the current procedural posture of this case requires that all of the allegations stated in Nunez’s complaint be assumed, for the sake of argument, to be true. ACES’ argument is that even if everything Nunez said in his complaint was true, the claims are legally insufficient to hold ACES liable under the law.

It’s a pretty straightforward idea actually: under the law, a criminal cannot use the courts to collect damages which arise out of his own criminal conduct. There are a number of specific legal theories argued in the brief that get at that, but they all amount to the same basic idea: if criminals have some contract in which they agree and/or arrange to do crimes, they can’t use the courts to enforce them. Courts aren’t like the hotel in “John Wick,” designed to cater to a notorious clientele. Indeed, contracts that purport to bind parties to illegal acts are, by definition, illegal and unenforceable. The rest of the claims — Nunez asserted several — all either fail because of that basic idea or because of some subordinate idea that is encompassed by it, ACES argues.

I’ve been out of the legal game for a few years now, but my read on all of this is that it’s a pretty good motion to dismiss. That aside, in the event that the court disagrees with that and lets the case proceed, it strikes me that Nunez is gonna have a lot of trouble making his case. It presents the situation all defense lawyers dream of: being able to ask the plaintiff, under oath, “were you lying then or are you lying now?” That comes along once in a blue moon. I know ACES’ lawyers want this case to go away now, but on some level they have to be itching to ask Nunez that. I know I would be.

Anyway, look for the filing of this motion to get the New York Daily News types to regurgitate their old circa-2012 PED talking points. To dig up Jeff Novitzky and the other anti-PED crusaders of a decade ago and have them once again cast aspersions on agents for the misconduct of others. If and when they do that, take it all with a massive grain of salt. Appreciate what, exactly, Juan Carlos Nunez is actually suing for here and what he has to do to prove his case. If you do, you’ll hopefully see the absurdity of all of this.

 

And That Happened: Sunday’s Scores and Highlights

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Here are the scores. Here are the highlights. The Orioles-Indians one is last and is really, really long, but I suspect a lot of you will appreciate it.

Pirates 2, Cubs 1: Adam Frazier socked a two-out, pinch-hit, 11th inning walkoff homer to earn a split for the Buccos. That it was a split was a minor miracle, really, given that the Cubs scored exactly four runs in the series. One run each game, in fact. They just happened to win 1-0 on both Thursday and Friday.

Rockies 4, Braves 2: Atlanta won five in a row last week and claimed first place and then went and got swept in a four-game series at home this weekend. Not that beating good teams is new to the Rockies. Colorado is 30-16 since June 26 and all 46 of those games have been played against winning teams. Or, at the very least, teams which were winning teams at the time. DJ LeMahieu was a killer this weekend. He hit a tie-breaking homer in extra innings on Saturday night and then he homered again here. Braves manager Brian Snitker, commenting on four straight losses on the heels of a five-game winning streak:

“In this business, every time you think you have something figured out, you get kicked right in the teeth”

If he’d have changed “this business” to “life” and then he’d really be dropping truth bombs. Lucky for him sometimes, even when you get kicked in the teeth, things don’t go as bad as they could, though. Such as the Phillies losing two in a row to the Mets and missing out on an excellent chance to make up more ground.

Marlins 12, Nationals 1: The Nats, meanwhile, dropped their seventh game in their last ten. They could do nothing against Jose Urena — and lucky they didn’t, or else maybe he’d try to hurt injure them — who tossed a complete game, allowing just the one run on only two hits. Starlin Castro had five hits and scored three times. JT Riddle and J.T. Realmuto each homered and drove in three, proving once and for all that the periods, or lack thereof, in their first names have no bearing on their baseball ability. That’s just science.

Rangers 4, Angels 2: Rougned Odor hit a go-ahead three-run homer in the seventh to give the Rangers their third win in the four-game series. Bartolo Colon was supposed to start this one for Texas but didn’t because of back stiffness. This is how, all the jokes about his size and his age aside, you know that Colon is a legit athlete. For all normal 45 year-olds — and I speak from personal experience here — back stiffness is more or less the default status, not the rare anomaly which interrupts one’s normal routine.

Rays 2, Red Sox 0: Five Rays pitchers combined to shut out the Sox, Joey Wendle and C.J. Cron went deep and Tampa Bay avoided the sweep. In related news, over the weekend some Rays fans on Twitter decided to take me to task for not thinking the Rays would be good this year. Even the Tampa Bay Times got into the act yesterday, citing yours truly by name.

On the one hand I will totally cop to thinking the Rays would be far worse than they are. Like a lot of predictions, I blew that one. Kudos to the Rays for beating mine and everyone’s expectations for them.

On the other hand, the level of aggression I got from the Rays folks over the weekend was pretty hilarious given that, overachieving notwithstanding, we’re still talking about a team that has hovered around .500 all year and is around 25 games out of first place and 11 back in the Wild Card race. The Oakland A’s they are not. It also doesn’t take into account that most of my criticism was about the Rays front office making financial moves, not baseball moves, and doing it pretty cynically and pretty transparently. That those moves have happened to turn out far better for them than expected does not change the fact that they were financial moves that were and remain pretty hostile to casual fans, most of whom are looking for a connection to their team and some continuity to that end, and who do not give a flying frick about how many prospects are playing in Princeton or wherever and are not as jazzed by a three-year plan as they might be by, you know, having a front office who has as at least part of its mission to put an entertaining product on the field. There’s a certain swath of Rays fandom who does not understand that and, in fact, seems aggressively opposed to even trying to understand it.

I don’t know. Maybe I’m just not appreciating the glory of their accomplishment in 2018. Rather than merely receiving a respectful nod for doing far better than anyone expected and a mea culpa from those of us who got it wrong, maybe the Rays should hoist a “Most wins per dollars spent” banner to go with the Wild Card banner they put up a couple of years back to show the haters exactly what they’re dealing with.

Yankees 10, Blue Jays 2: Greg Bird hit a grand slam in the first inning and everything after that was cream cheese. J.A. Happ won for the fourth time in four starts as a Yankee, this one against his old mates. It wasn’t all good news, though: Didi Gregorius hurt his left heel in a collision at first base and left the game with a deep bruise that could land him on the disabled list. New York sweeps the three-game series.

Reds 11, Giants 4: Cincy put up a seven-run third inning ending this one before it even got going. Eugenio Suarez and Jose Peraza each hit two-run homers and Billy Hamilton tripled twice and drove in three. The Reds sweep the Giants, who fall eight games back in the west and three games under .500. They scored six runs in the whole series.

White Sox 7, Royals 6: Kansas City took a 6-0 lead into the fourth inning but the Chisox put up a tying six-spot that inning and added a decisive seventh run in the fifth. Omar Narvaez tied it up at six with a homer and then knocked in that decisive run I mentioned with an RBI single. Avasail Garcia hit a three-run bomb.

Twins 5, Tigers 4: Eddie RosarioMax Kepler and Jake Cave all went deep as the Twinkies won their fifth of six. Does anyone call them the Twinkies anymore? I haven’t heard that one for a long time. Then again, I don’t really watch a lot of Twinkies games and never watch sports network highlight shows so maybe I’m just missing it.

Brewers 2, Cardinals 1: Mike Moustakas‘ two-run double in the third held up thanks to Jhoulys Chacin‘s six shutout innings. The win puts the Brewers back ahead of St. Louis for the second Wild Card and ends Milwaukee’s three-game losing streak.

Astros 9, Athletics 4: Houston salvages one and in so doing regains their lead in the AL West. Justin Verlander got the W, earning the 200th win of his career. It wasn’t a pretty win — he didn’t make it out of the sixth and gave up four runs in the process, with three of those runs coming on Khris Davis homers — but as we so often note around here, wins are team-dependent and here his team picked him up. Most of that picking up came via the longball, with Yuli Gurriel, Evan Gattis, Martin Maldonado, Alex Bregman and Marwin Gonzalez going deep.

Dodgers 12, Mariners 1: Clayton Kershaw hasn’t gotten a lot of that team support this year but he got five runs before he even had to throw a pitch here and then cruised to his 150th career win. Maybe the Dodgers’ batters were pissed over losing in extra innings on a walkoff balk the night before. I know I would be. Difference with me is that, when I’m mad, I don’t usually do better work. Justin Turner hit a three-run homer and drove in five. Kershaw allowed one run on four hits in seven innings. L.A. did not gain any ground in the West though, thanks in part to that Rockies win over the Braves and thanks in part to . . .

Diamondbacks 4, Padres 3: . . . the Snakes beating the Friars. A.J. Pollock‘s ninth inning homer was the difference. Arizona had tied it at 3 thanks to Daniel Descalso‘s solo homer in the eighth. The Diamondbacks have won four of five. They retain a half-game lead over Colorado.

Mets 8, Phillies 2Amed Rosario had three hits and drove in three runs, Jeff McNeil had a two-run single and Jason Vargas was effective into the sixth inning as the Mets beat the Phillies in Williamsport, Pennsylvania in the Little League Classic. The Phillies have lost seven of 11 and drop a half game behind Atlanta in the East.

Indians 8, Orioles 0: Melky Cabrera hit a grand slam in Cleveland’s six-run fourth inning, Mike Clevinger shut the O’s out for six and three relievers finished it off as the Tribe takes two of three from the O’s.

In related news, I took my kids to the first game of this series on Friday night. They’re not really big baseball fans, but they like going to games. Partially because it’s fun and there’s junk food, but mostly because it provides them a new venue for the sort of savage and absurdist commentary for which Gen-Z kids are quickly becoming famous.

I’ve watched this from a front row seat for a couple of years now. Anyone who follows me on Twitter is familiar with how brutally my daughter Anna, 14, owns me via text messages (and some old timers around here may remember her greatest hits from WAY back in the day). Others who follow me know how deeply into absurdist and envelope-pushing meme culture my son, Carlo, 13, happens to be. Every day is a new, eye-opening adventure. I’m impressed by the level of savagery they’re capable of in their early teens and terrified at what they’re going to capable of once they reach adulthood.

I’m likewise suffering from no small amount of whiplash. I mean, I once thought my fellow Gen-Xers and I had perfected ironic emotional detachment and that whole “whatever, nothing matters anyway” stance. I also thought that a decade’s worth of Millennials restoring an earnestness and emotional honesty to the lexicon of our nation’s youth — the likes of which we haven’t seen for probably 60 or 70 years — had all but buried that jaded sentiment once and for all.

Nope. The Gen-Z kids are going to stomp on the Millennials’ throats and pour acid all over their hopes, dreams and pretensions of an earnest and hopeful world. Then they’ll laugh mockingly at the Gen-Xers as we’re exposed for the amateurs that we are, and will rhetorically kill us, like some warrior coming back to vanquish their sensei. The only saving grace is that whatever Boomers are still left as this happens will just die of shock and outrage. Gen-Z will not be attending their funerals either unless they need some pics of dead grandpa for a devastating meme or two (Carlo has already told my father that he’s going to meme him once he passes away; my father does not quite know what to make of that, mostly because he’s 74 and does not know what a meme is).

Anyway, I’ve blocked out most of what they had to say during the game as a means of psychological self-defense, but trust me when I say that it was three straight hours of running commentary at turns hilarious, frightening and truly disturbing in ways that are hard to pin down. I do, however, remember or have documentation of a few things that went down in between the hot dogs and bon mottes:

  • My son is well aware of my Chief Wahoo stance and, thankfully, agrees with it. Nevertheless, he kept threatening to say “my dad said you’re a racist” to everyone who was wearing Wahoo gear because he said it’d be fun to see what happened. Which, given that he’s basically an agent of chaos — here’s a video of him in action — was a fairly plausible threat. Thankfully he did not do it;
  • My daughter said to my son that Orioles’ outfielder Joey Rickard looked like “that kid Kyle, in your grade.” My son agreed. For the rest of the game, every time Rickard came up, they yelled “don’t mess up, Kyle!” Rickard went 0-for-4 with two strikeouts and all the way home they would fill silences with “Dammit, Kyle” and shake their heads after which they’d laugh hysterically. They then said that, at school today, they were going to tell Kyle he sucked but not tell him why. I think it’s 50/50 that they do it;
  • Slider, the Indians’ mascot came up to our section. This is a screencap from my daughter’s Snapchat:

All of that being said, I don’t want you to get the impression that Anna and Carlo’s entire existence is savage owns and joking and ironic detachment. They are actually smart, sweet and sensitive kids who, when they’re not joking around, possess more empathy for their fellow humans than most adults who have seen and experienced far more than they have do. I am proud of my kids for that. Truly proud. Indeed I worry that the jaded exterior I’ve been describing is a defensive perimeter they and their generation have been forced to erect because the generations which came before them have thrown so much fear into their world and, perhaps, are even ruining it before my kids get a chance to live in it as adults. That’s a lot to put on anyone, but the fact that we’ve put that sort of weight on our children is a tragedy. Knowing that the’ll have to cope with what we have done to make their lives harder and, quite possibly, shorter, breaks my heart.

Those thoughts were swirling around my head as the game neared its end Friday evening. As they did, I looked over to Carlo and Anna sitting next to me. They were watching the game intently. And, even though it had started raining, quite contently. They seemed happy. The cynicism and the wiseguy routines had been left back in the middle innings somewhere. When Cody Allen struck out Kyle, er, I mean Joey Rickard, for the game’s final out, they both stood up and cheered a genuine and exuberant cheer. When they did, I figured it was a good opportunity for some rare heartfelt sincerity.

“So, Baseball. You like it, eh?” I said in my proudest dad voice, thinking that, just maybe, we had bonded over something near and dear to my heart. Anna looked at me and smiled. Then she said something I’ll never forget.

“Not really. But I guess I sort of have to respect it because if it wasn’t for baseball you’d be unemployed and I’d probably be homeless.”