Bosch Testimony Is Just Beginning Of What Will Be Long Drawn Out Legal Fight

mlb_g_selig_gb1_600I don’t think anyone can argue this point: Bud Selig means business.

Dedicated and determined to clean up the game of baseball, it appears that the commissioner and Major League Baseball will seek suspensions for at least some, and potentially all of the 20 names that have reportedly been linked to the no defunct Biogenesis Clinic located in South Florida.

Baseball has been uber-aggressive in its performance enhancing drug investigation into the clinic and the clinic’s connection with and to certain major league players. Earlier this week, it was reported that the legaue had flipped Tony Bosch, the head of the former Biogenesis clinic. Bosch is expected to entertain interviews and answer questions from MLB officials as early as next week. Baseball hopes information provided by Bosch will create enough ammunition to begin delving out punishments to individual players who have been swept up in the sport’s most recent PED scandal.

Make no mistake about it; that Bosch will be serving as a witness for baseball in its investigation is big news. But the cart cannot come before the horse.

At this point in time, we really don’t have any new evidence or much in the form of new evidence beyond the revelation that Bosch is expected to provide the MLB with information concerning the clinic and its clients. In addition, the fact that Selig and baseball officials will seek suspensions does not necessarily mean that they will succeed. That will depend on what evidence is elicited from Bosch’s answers, and the degree to which any allegations derived therefrom can be corroborated by other evidence.

Bosch’s motivation in agreeing to answer questions is derived from spite, money and self preservation. In return for his cooperation, baseball will agree to drop a civil suit that it had filed against him – a suit they were highly unlikely to win and were using to gain subpoena power to bolster their investigation. Rumor has it that baseball has also agreed to pay Bosch for his cooperation and for information into Biogenesis’ operations. These rumors come on the heels of reports that Bosch sought hundreds of thousands of dollars from Alex Rodriguez, one of the premier players suspected of receiving performance enhancing drugs from Biogenesis. A-Rod reportedly rebuffed Bosch’s requests, which led the former Biogenesis head to cut a deal with Major League Baseball.

The league will be relying primarily on Bosch’s testimony, along with handrwitten logs obtained from the clinic that feature player names and dollar figures assigned to each name, to support findings that players violated the league’s performance enhancing drug policy. It will be relying on Bosch in the same way that prosecutors relied on the testimony of former trainer Brian McNamee in the federal perjury case against Roger Clemons that also featured doping allegations.

And just as McNamee’s in the Clemons perjury case, Bosch’s credibility will be critical.

Watch this ambush interview ESPN’s Pedro Gomez conducted with Bosch. You’ll see first hand how this reliance on Bosch’s credibility puts baseball’s case in an extremely tenuous position from the very beginning.

Even if Bosch turns out to be a fantastic and highly credible witness, the question as to whether baseball can suspend players for violating the league’s performance enhancing drug policy without having failed a drug test remains. Without a positive drug test, it will be impossible to know just what illegal substance a player is guilty of having taken.

I will need to conduct more research into the specifics of the MLB’s drug testing policy to determine on what grounds a suspension can be had, but I am unaware of a situation where a player has ever been suspended without a positive drug test in baseball’s past.

Sources also say that Selig hopes to pursue 100-game suspensions for Rodriguez and Ryan Braun – a punishment reserved only for second-time offenders under the language and structure of the league’s current PED rules. Their purpoted plan is to allege two separate violations: one for any violation uncovered through the ongoing investigation and another for having lied about it to baseball officials in previous interviews.

There isn’t a whole lot of precedent to govern such a course of action. Baseball has suspended one player for 100 games under the same pretenses in the minor leagues, but the player so punished did not have the protection of Major League Baseball Player’s Association, who is likely to launch a staunch objection and legal fight should baseball attempt the same against a big league player.

Baseball is likely being retributive with these 100-game suspension efforts. A-Rod admitted to previous PED use, but his prior use occurred at a time when the current drug-testing and punishment policy was not in place and he could not be punished retroactively. Braun beat prior allegations of testosterone use on a chain-of-custody technicality. Major League Baseball sees the Biogenesis scandal as an opportunity to get a second bite of the apple on these prior issues. They may be overstepping their bounds in that respect.

This story is far from its conclusion. And believe it or not, the worst is yet to come. Right now, baseball is still engaged in the investigative process. The real ugliness – the legal fights – will come once baseball has collected all of its evidence and attempts to dish out punishments. Expect to see an incredible amount of litigation between the league and the players’ association in the months and potentially years to come.

The biggest issue to be litigated will be whether Major League Baseball can suspend players without a positive drug test. Allowance would create a slippery slope and open the door for potential Salem-like PED witch hunts and would allow cases could be built and decided solely on circumstantial evidence and he-said, she-said testimony.

More will be known once Bosch has spilled his guts to MLB officials, and I will continue to offer updates and opinions as this Biogenesis saga continues to unfold.

But even if baseball does not succeed in its goal of suspending these players linked to the South Florida clinic, Selig deserves recognition for his steadfast and relentless efforts to clean up the game of baseball.

About Matthew George

Matthew George graduated from the University of Kentucky in 2008 with a bachelor of science in journalism. He spent three years writing sports for the Kentucky Kernel, the university's daily paper, and served as assistant sports editor. After undergrad, Matthew attended Chase College of Law at Northern Kentucky University where he earned his juris doctorate. He is now admitted to practice law in Kentucky and Indiana.

2 thoughts on “Bosch Testimony Is Just Beginning Of What Will Be Long Drawn Out Legal Fight

  1. Bosch is a snitch. In my 35 years of practicing criminal defense, most snitches have a motive to provide incriminating evidence and they generally lack any credibility.

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