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Report: Florida judge declines to toss Biogenesis suit

Perhaps a novel legal strategy has merit, but does this mean that Alex Rodriguez can go ride his centaur?

Christian Petersen

According to a report on ESPN, on Wednesday a Miami-Dade County Circuit Court judge elected not to dismiss the lawsuit Major League Baseball had filed against Tony Bosch and other figures associated with the Biogenesis clinic.

This is significant in that the existence of the lawsuit has provided baseball with a tool by which they can try to force reluctant witnesses -- like Bosch himself -- to provide testimony against players such as Alex Rodriguez and Ryan Braun. Reportedly, part of MLB's incentives to get Bosch to cooperate was a promise to drop the lawsuit.

What's fascinating about this latest development is not just that MLB gets to retain its hold over Bosch, but that a judge feels that its novel legal strategy of suing on the basis of "intentional and unjustified tortious interference" has at least enough merit to let the lawsuit go forward. Tortious interference is the legal term for when a person who is not a party to a contract does something that induces one of the parties to breach that contract. In concluding the Joint Drug Agreement the Players Association and Major League Baseball made a contract to keep the game free of certain prohibited substances. According to MLB's reasoning, Bosch, in (allegedly) supplying the players with those substances, caused them to breach the JDA.

There's a lot here for the non-lawyer to grapple with. Typically, a tortious interference claim might arise from one company hiring away another's employee by offering them more money, or from someone dropping out of an agreement as the result of receiving a better offer -- I agree to sell Marc Normandin my mint copy of "Adolescent Hormonal Boxer Rabbits #1" for $10. We shake on it, but then Rob Neyer appears and offers me $15 for it, so I flip Marc the bird and give the funny-book to Rob. At that point, Marc could sue me for breach of contract and Rob for tortious interference, since he provided the incentive for me to break the contract.

What's less clear is a situation in which two parties have a contract not to do something, but then one party goes ahead and does it anyway, if a third party can be blamed for giving them the tools by which they broke the agreement. Alex Rodriguez agrees in his contract to keep himself in game shape. He then goes off to Home Depot and purchases some electric hedge clippers and amputates one of his fingers (Bobby Ojeda actually did this during the 1988 season). Is Home Depot guilty of TI? Better yet, Alex Rodriguez agrees as part of his contract not to undertake hazardous activities like brahma bull riding. The operator of Miami's "Bob's House of Brahma Bulls" franchise knows this to be the case, yet welcomes in A-Rod for a bull ride. The bull then tramples A-Rod into tiny smithereens. Can MLB sue Bob? And the bull?

Also: How long of a tasteful wait would the Yankees observe before throwing a party? I would take the under on .2 nanoseconds.

We may never find out, because MLB's real interest here seems to have been in compelling the witnesses -- with the company's deep pockets, it could fight this lawsuit beyond the Supreme Court to some intergalactic tribunal as yet undreamt of, whereas Bosch and pals don't have any money to speak of. As the attorney for one of the defendants said of his client earlier this week, "He is a broke, broke, broke little nothing individual." Once MLB has obtained the result it wants, something it seems well on its way to doing, it will have lost all incentive to pursue the suit, assuming they don't want to see this strategy vindicated so it can be put in a "break glass in case of juicing" box to be pulled out whenever the next rogue clinic pops up.

As such, this story is merely a way-station on the road to the suspensions that Commissioner Bud Selig apparently so desperately wants. The courts have decided not to deprive him of his best tool. Perhaps some higher-level court will, but by then it may be too late for Braun, Rodriguez and company.

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