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.