Source: USA TODAY
Major League Baseball might have the star witness it covets in its drug probe, but lawyers and baseball officials cautioned Wednesday that the league was far from attaining the punishment and suspensions its officials desired.
Tony Bosch, director of the defunct Biogenesis wellness clinic that allegedly provided performance-enhancing drugs to as many as 90 major league and minor league players, is expected to have his credibility attacked by union officials if he accuses players of illegal drug use.
Bosch has informed MLB he will testify about his relationship with performance-enhancing drugs and dozens of baseball players, a move expected to significantly bolster the league’s aim to suspend stars who have been tied to the clinic, such as former MVPs Alex Rodriguez and Ryan Braun. MLB, in turn, would drop its lawsuit against Bosch.
The league, however, figures to need far more than Bosch’s testimony to move forth with discipline.
“The one thing we do know, the credibility of the witness and the motives of the witness is in severe question,” said high-powered agent and attorney Scott Boras, who represented Manny Ramirez when he was suspended for 50 games in 2009 without a positive steroid test.
“We’re talking about allegations made about a prescription medication that can only be given to a doctor, when in fact, he practiced medicine without a license.
“So the motives are many, financial and criminal. How is this guy getting around the admission that would send him to jail? Is he really going to admit to a felony for obtaining drugs without a prescription, and now another felony for injecting it without a license, in return for (MLB) dropping a lawsuit? These players are going to put him in the same box as MLB. They are rich men, worth hundreds of millions of dollars, and they can say, ‘If you say this stuff, I’ll come and sue you.’”
It’s unknown what Bosch will say under oath to MLB investigators, but one official briefed on the matter said MLB would seek cellphone records, e-mails, text messages and calendars for proof of corroboration. The official spoke to USA TODAY Sports on condition of anonymity because of the sensitive nature of the investigation.
It will be difficult without government subpoenas, former commissioner Fay Vincent said, but MLB proved it can be accomplished with its private investigators when Pete Rose received a lifetime suspension for gambling in 1989 and New York Yankees owner George Steinbrenner was suspended for two years in 1990 for conspiring with a known gambler.
However, neither Rose nor Steinbrenner had the backing of the Major League Baseball Players Association, whose executive director, Michael Weiner, released a statement saying, “Every player has been or will be represented by an attorney from the Players Association” in interviews with MLB investigators.
“It’s a very difficult proposition, because the defense has its advantages,” Vincent told USA TODAY Sports. “People trying to prove the case will have the burden, and that proof is tough to come by. There is doubt. The best investigation is done by law enforcement. They can subpoena you. We don’t have the clout.
“We had to do it with people willing to talk to us.”
Bosch was never served a subpoena, but MLB filed a suit against him and his associates.
In exchange for his testimony, according to ESPN, Bosch asked MLB to drop a suit against him, provide security and assist him if criminal charges are filed. MLB confirmed last month that it purchased records from Bosch’s Biogenesis clinic.
“Anytime a witness comes to the table with financial demands, they are vulnerable under cross-examination,” said New York criminal attorney Ben Brafman, who represented NFL receiver Plaxico Burress in his 2009 criminal case of carrying a concealed weapon. “And there will be a basis that undermines that credibility. If he has ‘sold’ the information to Major League Baseball, that by himself makes him very vulnerable to a vigorous cross-examination.
“I don’t want to give Bosch legal advice, but some of the allegations he is making may well subject himself to civil and criminal liability. You do not get a complete legal free pass from the federal government just because Major League Baseball is involved.”
Investigators also must establish that players used performance-enhancing drugs without testing positive.
“For me, the credibility of the witness has to be involved in this,” San Francisco Giants player representative Jeremy Affeldt said. “These are pretty heavy suspensions coming down. If there’s no proof, to be able to take our money away off of ‘allegedly this’ and ‘allegedly that,’ there’s got to be 100% proof.
“Some of these guys that are on the list, these are millions of dollars that you’re taking away from these players. It’s not like a $5,000 fine.”
If any player in the Biogenesis records used performance-enhancing drugs, Tigers starter Max Scherzer said, he deserves to be suspended. Yet, Scherzer would like MLB and the union to reach an agreement to stiffen the penalty for violators who intentionally cheated, even if its costs them the entire season.
“There’s a difference between an innocent positive and a blatant cheater,” Scherzer told USA TODAY Sports. “And the penalty for blatant cheating is not enough. There should be 81 games for the blatant cheater, or if you want to do one year, I’m fine with that, too.
“If you blatantly cheat, you should be blatantly punished.”
Ultimately, MLB officials will have to determine whether their investigation will hold up in front of an independent arbitrator.
“The other thing needed to keep in mind is that MLB is not a courtroom,” Brafman said, “where ballplayers have as many rights as someone accused of a crime. The standard of proof (MLB) may require to suspend a player may be substantially less than might be necessary in a real courtroom proceeding.”
Contributing: Jorge L. Ortiz in San Francisco