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Analysis: In suing clinic over drugs, U.S. baseball may be targeting players

By Joseph Ax

NEW YORK (Reuters) - Major League Baseball likely faces an uphill battle if it hopes to win a lawsuit it filed last week against the owner of a Florida clinic that allegedly provided banned performance-enhancing drugs to the league's players.

If, however, MLB's suit against BioGenesis, an anti-aging clinic, survives a motion to dismiss, league lawyers could use the legal discovery process to access clinic records it so far has failed to secure, giving baseball officials evidence they might use to pursue disciplinary actions against players.

"I doubt Major League Baseball cares much about getting damages from these people," said Nathaniel Grow, a University of Georgia sports law professor, echoing the view of other tort and sports law experts. "It's about getting to the discovery phase."

The lawsuit, filed on Friday in Florida state court, cited articles by a newspaper, the Miami New Times, that reported BioGenesis and its owner, Anthony Bosch, had given half a dozen players illicit performance-enhancing substances.

The case appears to be the first time a sports league has sued a business for allegedly providing players with drugs.

It does not name any of the players identified in the news reports as defendants. Among those players are New York Yankees third baseman Alex Rodriguez and Washington Nationals pitcher Gio Gonzalez, both of whom, in response to the published reports, denied using the drugs.

MLB spokesman Pat Courtney said in a statement, "We believe we have a legitimate legal claim against the defendants and we intend to pursue it vigorously."

Asked in an email whether the suit might be aimed at using discovery to access documents from BioGenesis that would show what players did, the spokesman replied: "We believe in the merits of this case." He would not elaborate.

Susy Ribero-Ayala, who has been identified in news reports as Bosch's lawyer, did not return a request for comment on Sunday. The defendants - two companies and six individuals - have yet to file a response to the lawsuit in court.

CONTRACT INTERFERENCE

The lawsuit's sole cause of action is tortious interference with a contract, claiming that BioGenesis "induced" players to violate MLB's drug prevention program, which bars players from using certain banned substances.

Typically, tortious interference is used to go after business competitors - for example, companies that may have stolen away employees under contract. But winning such cases is difficult even under normal circumstances, in part because judges are wary of companies using such lawsuits to bully rivals who are simply engaging in competitive business practices.

"This kind of tort is one that courts are uncomfortable with," said Geoffrey Rapp, a University of Toledo professor who specializes in torts and sports law.

Baseball's theory, moreover, depends on convincing a judge that the league's drug program barring the use of performance-enhancing substances (PES) constitutes a contract with the players and that BioGenesis explicitly wanted them to breach that contract.

"By soliciting major league players to purchase or obtain PES and/or by selling, supplying and/or otherwise making available PES to major league players, defendants intentionally and unjustifiably interfered with MLB's Joint Drug Prevention and Treatment program," the lawsuit asserts.

That could prove a tough sell, since BioGenesis' actions likely were motivated by profits, not by a specific desire to break the contract, law experts said.

Roger Abrams, a sports law professor at Northeastern University in Boston, used the example of player contracts that call for the player to hit specific weight targets in spring training.

"Does that mean you can sue McDonald's for selling Big Macs to this guy?" he said.

MLB could further find it difficult to quantify the economic harm it allegedly suffered as a result of BioGenesis' actions.

The lawsuit claimed baseball has suffered damages "based on cost of investigation, loss of goodwill, loss of revenue and profits and injury to its reputation, image, strategic advantage and fan relationships."

BACKDOOR INVESTIGATION?

Winning the lawsuit outright, however, may not be the point, especially since BioGenesis is already out of business and likely has few assets. Instead, baseball may be trying to get around the challenges it faces going after players who have not failed a doping test.

The lawsuit could put players and suppliers on notice that they could face potential disciplinary and civil penalties even in the absence of a positive test.

Without subpoena power, baseball investigators have been stymied in their efforts to get the documents cited by the Miami New Times. If the lawsuit proceeds to trial, baseball's lawyers would have the right to demand copies of BioGenesis' records and conduct depositions of the defendants, which could then provide the basis for suspensions for any players involved.

MLB also may have sued as a public relations move to send a signal to its fans that it will aggressively fight the use of banned substances.

Other sports officials will likely watch the outcome of the case closely.

"It's definitely novel," Grow said. "It'll be interesting to see if this is something other leagues might do in the future."

In a statement released by his publicist in January, Rodriguez, of the Yankees, said: "The news reports about a purported relationship between Alex Rodriguez and Anthony Bosch are not true. Alex Rodriguez was not Mr. Bosch's patient, he was never treated by him and he was never advised by him."

Also in January, Gonzalez denied the allegations against him on his Twitter account. "I've never used performance enhancing drugs of any kind and I never will, I've never met or spoken with Tony Bosch or used any substance," he tweeted at the time.

(Editing by Howard Goller, Mary Milliken and Jim Loney)

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