By Anthony Salem
Tony Bosch is Major League Baseball’s new best friend.
MLB reached an agreement with Bosch for his cooperation into the investigation of MLB players and their use of performance-enhancing drugs from his Biogenisis clinic.
As part of the deal, MLB agreed to drop the tortuous interference lawsuit filed against Bosch in Florida, indemnify him against future litigation that may emerge from his testimony, and promise to put a good word in should law enforcement agencies decide to prosecute him.
MLB is swinging for the fences in its agreement with Bosch. In an attempt to clean up the game after several swings and misses in the past, it is bringing in its closer. But what happens if the unthinkable occurs? What happens if the arbitrator overturns the player’s suspension? Where does MLB go from there?
What we do know is that the arbitrator is not afraid to overturn MLB’s suspension of a player for his violation of the Joint Drug Agreement (JDA). When Ryan Braun challenged his suspension for testing positive for a prohibited substance under the JDA in 2011, he won. In that case, Braun challenged that his sample was contaminated. The arbitrator did the unthinkable when he overturned MLB’s suspension, and was fired by MLB shortly thereafter. MLB had evidence that Ryan Braun tested positive. In its current situation, MLB does not have a positive test. Enter Tony Bosch.
MLB is not prosecuting a criminal case against the players, most notably Alex Rodriguez and Ryan Braun. In fact, the inevitable arbitration hearing that would take place after the players appeal their suspensions is nothing like a criminal case at all. There is no jury. There is no judge. There are no rules of evidence. The Collective Bargain Agreement (CBA) allows for discovery to take place between the parties. This means Rodriguez, Braun, and other players will have access to evidence and documents that MLB relies on in suspending the players. At the arbitration hearing the CBA allows the parties to offer evidence and produce evidence the panel chair deems necessary to understand the dispute. Further, the panel chair determines the relevancy and materiality of the evidence. This is far different from a courtroom where strict rules of evidence and procedure must be followed.
Although the case against the players in not criminal in nature, there are similarities in how the parties will handle the case. Both sides will have a chance to call witnesses and produce evidence at the arbitration hearing. Both sides will have a chance to cross-examine the other party’s witnesses. This is where MLB should tread lightly.
In swinging for the fences, MLB is overlooking the major flaws in its case. Without a positive drug test, MLB must prove the players violated the JDA by other means. The JDA states the players are prohibited from using, possessing, or selling prohibited substances. Thus, even without a positive drug test, MLB is attempting to prove the players possessed the substances. However, what evidence does it have besides Tony Bosch?
MLB does not have to prove its case beyond a reasonable doubt, as in a criminal case. However, just because MLB does not have to prove its case to the incredibly high burden the criminal justice system requires does not mean the same aspects of witness and evidence reliability will not be at issue. The credibility, reliability, and bias of a witness should strongly be considered by MLB as it prepares its case. Essentially it is important to consider how the witness would come across to the jury, or in this case, the arbitrator. Tony Bosch presents many problems to MLB.
In order to secure Bosch’s cooperation, MLB agreed to drop its lawsuit against him, indemnify him against future litigation that commences based on his testimony, and put in a good word for him with other law enforcement agencies. In other words, MLB was desperate. The attorneys for the players and the players’ union will question this agreement at length. In addition to this agreement, Bosch gave interviews in which he denied supplying prohibited substances to the players. Did Bosch tell the truth then? Or is Bosch now telling the truth? The prior statements provide further ammunition for the players to attack MLB and Bosch.
The parties in the arbitration hearing are not bound by the rules of evidence or procedure. The players will explore Bosch’s background to determine what else they can attack his credibility with. How long did he supply prohibited substances for? What did he do prior to operating a wellness clinic? What other information can the players and their representatives discover to attack Bosch’s credibility? Does he have a criminal history? With no rules of evidence, and only the arbitrator to decide what is relevant, the players will be on full attack.
With or without Bosch, MLB better have a backup plan. The documents from the clinic may corroborate Bosch’s testimony. But, on the other hand, what if the documents are susceptible to interpretation? Braun already stated that his team consulted with Bosch during his appeal in 2011 and that is why his name appears in a notebook. Is Braun’s story believable? Does he have other evidence to corroborate his story? If the documents are notebooks, like the ones released to the Miami New Times, how detailed is it? Does it only list names and dollar amount? MLB’s case may hinge on these documents to support Bosch’s testimony.
MLB may have other witness testimony to corroborate Bosch’s testimony, including Porter Fischer, the former Biogenisis worker who takes credit for leaking the notebooks to the Miami New Times. MLB may be in talks with other workers of the clinic. How credible is the “corroborating” evidence? Are other workers from the clinic willing to testify? Did MLB come to an agreement with them in order for them to cooperate? Did other clients of the wellness clinic witness anything? MLB may have corroborating evidence or documents they claim substantiate Bosch’s allegations against the players, but, as with Bosch, the strength of that evidence will be heavily cross-examined.
However, the major flaw in MLB’s case is Bosch. With their agreement, the players will argue MLB bought Bosch’s testimony. If MLB had such a strong case, would it not have already suspended the players and moved toward an arbitration hearing? What is taking MLB so long to close the case? In using Bosch as their star witness, and aggressively pursuing this case, MLB is making a bold statement that it wants to permanently clean up our national pastime. MLB is trying to hit a home run, but with the problems Bosch presents, it may swing and miss yet again.
Anthony Salem is an associate with Boyd & Jenerette in Jacksonville, His practice focuses on general civil litigation, including automobile and trucking negligence, product liability, and premise liability. Prior to his current work, he was an Assistant State Attorney in Jacksonville where he prosecuted felonies and misdemeanors. He can be reached at asalem@boyd-jenerette.com.
