The agreement between Major League Baseball and Tony Bosch, the founder of the defunct Miami clinic at the center of an ongoing performance-enhancing drug scandal, might lead to player suspensions, appeals and litigation. The agreement, first reported by ESPN, the probability of litigation and any evidence that Bosch might produce for MLB investigators raise significant legal questions:
Q: When Bosch closed his Biogenesis of America clinic, it appeared that investigators would be unable to succeed in their efforts to learn what, if anything, Bosch had done for MLB players. How did MLB manage to obtain cooperation from Bosch?
A: Bosch's agreement to cooperate with MLB is a bit of a surprise. After MLB was unsuccessful in purchasing Biogenesis records from the Miami alternative newspaper that claimed possession of them, MLB filed a lawsuit against Bosch. Legal experts, including me, scoffed at the MLB action. The lawsuit was based on a legal theory known as "tortious interference" or wrongful obstruction of MLB's efforts to rid baseball of steroids. Tortious interference is a legal theory of last resort. When you are stuck without a winning legal theory, you rely on the theory of tortious interference. It is rarely successful. But MLB and its lawyers managed to persuade Bosch to cooperate.
Bosch could have destroyed his records and walked away from the legal action, but he was somehow either persuaded or intimidated and he decided to cooperate. What did MLB lawyers do to push Bosch into a mood of cooperation? We know only that MLB promised to protect him from any legal actions that might result from his cooperation and that MLB assured Bosch it would provide personal security. Was there something else? Possibly. Bosch had abandoned other businesses, ignored other lawsuits and stonewalled the IRS. MLB accomplished something most thought was impossible -- it used the legal system to force Bosch to do something he did not want to do.
Q: Bosch appears to be a dubious character with numerous failed businesses and problems that indicate a lack of personal integrity. How can MLB rely on such a person as a witness?
A: The key to MLB's decisions on player suspensions will be the records Bosch kept at Biogenesis. MLB cannot rely on Bosch's testimony alone. It must have corroboration from his records. If Bosch has things such as copies of checks, credit card confirmations, FedEx invoices, drug logs and phone records, MLB will have persuasive evidence that Bosch is telling the truth when he states that he sold PEDs to players. In the BALCO investigation, agents even found records of positive drug tests. Did Bosch maintain his records in an organized fashion? Will he be able to explain them in a convincing way? MLB and its investigators will be studying his records in agonizing detail as they search for evidence that will support a suspension.
Q: Why would anyone believe him -- he previously denied everything to ESPN, which would now seem to paint him as a person who doesn't tell the truth?
A: This is the most important question in what might be the biggest steroids scandal in the history of sports. Bosch's veracity is the central issue. If arbitrators and judges can believe Bosch, MLB will succeed in its suspensions of as many as 20 players. MLB must prepare Bosch to testify in the appeals that will inevitably follow any suspensions. They must rehearse and anticipate vigorous cross-examination. The challenge for the attorneys representing the players and their union will be to find ways to destroy Bosch's credibility. They need look no further than the masterly work of Rusty Hardin, the great trial lawyer from Houston, who destroyed the credibility of Brian McNamee, the trainer who turned against Roger Clemens. Despite documentary evidence to support McNamee's claims, Hardin convinced jurors in Washington in the summer of 2012 that they should reject McNamee's claims. Quickly and unanimously, the jurors found Clemens not guilty.
Q: What can a player do to fight a suspension?
A: Under the agreement between the players' union and MLB, players can file a grievance and present evidence to arbitrators. Although there is the possibility that the player may simply serve out the suspensions and continue his career, it is more likely that the players will demand the arbitrations. In the hearing before the arbitrators, the players will challenge Bosch and will test all of the other evidence MLB presents. The arbitration is supposed to be final. But, in the event of 100-game suspensions, the players might try to challenge MLB and the arbitration decision in court in the form of a lawsuit. It would be a long shot. Judges are reluctant to intrude on arbitrators and their decisions. But MLB's tortious interference lawsuit was a long shot, and it has worked out well so far.
Q: Like the people who operated the BALCO clinic in California, Bosch might be subject to federal prosecution. Did MLB help him avoid prosecution? Will he be prosecuted?
A: Although there are a number of reports that MLB officials assisted Bosch in avoiding trouble with the feds, it is not likely. There is nothing MLB can do to stop federal agents and prosecutors from a pursuit of Bosch. The feds and MLB did work together in the investigation that led to the Mitchell report, but that is not likely to happen again. The U.S. government has lost interest in the investigation and prosecution of PED cases. In the face of overwhelming evidence of guilt, the U.S. Attorney in Los Angeles, Andre Birotte, terminated the investigation of Lance Armstrong. The perjury prosecution of Roger Clemens ended in a humiliating defeat for the prosecutors. Although they succeeded in convicting Barry Bonds of a felony, the prosecutors wanted more. The U.S. Department of Justice has clearly decided it will devote its efforts to other situations that it views as more important than the use of PEDs by elite athletes.
Q: What is the significance of MLB's lawsuit and its agreement with Bosch?
A: Filing the tortious interference lawsuit demonstrated that MLB commissioner Bud Selig was committed to the elimination of PEDs in baseball. Stung by the embarrassing loss in the arbitration over the suspension of Ryan Braun, MLB could easily have ignored the Biogenesis issues and watched as the story slowly died. They could have enjoyed their record attendance and profits instead of taking action and prolonging the steroid era. Instead of taking an easier path, Selig pursued Bosch. The success of MLB's lawyers in forcing Bosch into a cooperation agreement is nothing less than astonishing. It is a tribute to Selig and to the lawyers that they have succeeded in what appeared to be a hopeless situation.