MLB Reportedly Bought Documents From Biogenesis Employees

Late Thursday night, the New York Times reported that Major League Baseball purchased documents from a former employee of Biogenesis, the Miami anti-aging clinic at the center of MLB’s investigation into performance-enhancing drugs. The Times also reported that a player linked to the clinic by recent news stories had also purchased documents from a former — but perhaps different — Biogenesis employee. The player allegedly bought the documents with the intent to destroy them.

From the Times: 

One of the two people [briefed on the matter] said that, in part, baseball, which has no subpoena power, felt compelled to pay money for documents because its officials had been concerned that more than one player was trying to do the same.

In addition, the two people said, baseball has now provided payments to former employees of the clinic who have cooperated with the sport’s investigators. The payments were for the time they provided to the investigators, the two people said, and, in each instance, were not believed to have exceeded several thousand dollars.

This new information solidifies the view that MLB is pressing very hard to uncover evidence linking players to Biogenesis and PEDs. Indeed, the Times report comes just a few weeks after MLB sued Biogenesis in Florida state court claiming that the clinic had intentionally interfered with the league’s collective bargaining agreement with the players’ union, which includes the Joint Drug Treatment and Prevention Program. I discussed the lawsuit in a post last week (which you can read here) and explained that MLB’s primary — if not sole — goal was to preserve and obtain documents from the clinic.

Paying for documents or for a witness” cooperation can present a host of problems should the documents relate to a pending lawsuit or government investigation. For example, when a civil case proceeds to trial, the credibility of the witness who was paid to provide documents or information would be called into doubt, and the reliability of the documents would be undermined.

MLB was likely undeterred by those concerns because it doesn’t intend to use the Biogenesis documents or rely on a former Biogenesis employees in court. Instead, MLB will use the documents to further its investigation and, potentially, as a basis for suspending one or more players for violating the Joint Drug Program. The Program prohibits players from “using, possessing, selling, facilitating the sale of, or facilitating the distribution of” PEDs.  A player who “tests positive” for PEDs is subject to discipline. MLB may also suspend a player who “otherwise violates the Program through the use of possession of” a PED.

MLB need not rely on a court to suspend a player under the Program. The collective bargaining agreement empowers the league to act as an investigator in gathering evidence, and as a judge in determining whether there is sufficient evidence for a suspension. If MLB pays a witness for documents or cooperation, it is MLB that then decides if those payments compromise the evidence. Not very likely.

A suspended player may appeal that suspension to an arbitrator, as Ryan Braun did in early 2012 when he purportedly tested positive for a PED. But the collective bargaining agreement leaves little — if any — room for appeals to a court after the arbitrator issues his ruling. In other words, there’s not much of a check on MLB’s conduct or decision-making — certainly not enough to deter the league from vigorously pursuing and paying for Biogenesis witnesses and documents.

But things could be much dicier for players who purchased Biogenesis documents from the clinic’s former employees — especially if the players destroyed the documents. While the federal government doesn’t have an active investigation into Biogenesis — like it did with BALCO — the Florida Department of Health is reportedly investigating the clinic and its former director, Anthony Bosch. Buying documents related to a pending investigation and then destroying those documents could very well subject the purchaser to obstruction of justice charges.

Whichever way this turns next — and if history is any guide, there will be many more unexpected turns — there is no doubt about MLB’s zeal to uncover evidence linking players to Biogenesis and PEDs.

Update:  Several folks have asked about the effect of HIPAA on efforts to purchase Biogenesis documents. I’ve taken a look at HIPAA and the answer is: It is not clear.

HIPAA is an acronym for the federal law known as the Health Insurance Portability and Accountability Act, enacted in 1996. The law contains a provision requiring that certain health care-related entities maintain the privacy of consumers’ personal health care information. The law is administered by the federal Department of Health and Human Services. That agency issued regulations to carry out HIPAA’s mandate.

Under HHS regulations, HIPAA applies only to “covered health care providers,” defined as (1) a health care provider that conducts certain transactions in electronic form; (2) a health care clearinghouse; and (3) a health plan. From what we know, Biogenesis is neither a health care clearinghouse nor a health plan. The question is whether it is a “health care provider that conducts certain transactions in electronic form.”

From what we’ve seen so far, it’s difficult to know if Biogenesis qualified as a covered entity under HIPAA. Most, if not all, of the documents obtained by the Miami New Times, Yahoo! and ESPN were handwritten notes. We just don’t know if Biogenesis transmitted records, prescriptions, or invoices electronically — either by e-mail, fax or otherwise. If the clinic avoided such electronic transmissions, then its records would be exempt from HIPAA compliance.

Note also that there is no civil remedy for a HIPAA violation. An individual whose health records were disclosed in violation of HIPAA cannot sue for damages. Only government agencies have enforcement powers under HIPAA. That may be one of the avenues for investigation by the Florida Department of Health.

As with every other aspect of Biogenesis and the MLB investigation, the HIPAA issues are murky.




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Wendy's baseball writing has also been published by Sports on Earth. ESPN.com, SB Nation, The Score, Bay Area Sports Guy, The Classical and San Francisco Magazine. Wendy practiced law for 18 years before beginning her writing career. You can find her work at wendythurm.pressfolios.com and follow her on Twitter @hangingsliders.


28 Responses to “MLB Reportedly Bought Documents From Biogenesis Employees”

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  1. wade says:

    What sort of “documents” did MLB purchase? Are they considered medical records? Is there any sort of confidentiality agreement has been breached by the Biogenesis employee in selling the records? Does HIPAA apply here?

    In the fullness of time I guess that we’ll find out the answers to these and other questions.

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    • Fill says:

      I was thinking that too actually. Can MLB actually try to take medical records even if they are protected by HIPAA laws?

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      • bennoj says:

        If Bosch is not actually a doctor, does HIPAA apply?

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      • Wil says:

        The question I would have about that, is could any of these records actually be considered “medical records” considering that no medical professional actually treated them?

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        • Baltar says:

          It’s easy from the name of the company to mistake them for a medical clinic, which they most assuredly are not.

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  2. Fill says:

    So does any suspected player have any leverage legally if he is suspended for the evidence found by MLB even though they paid for it? Especially if MLB does indeed have no intentions of taking this to court and is just doing this on the sole purpose of obtaining evidence? Would the arbritrator process, such as Ryan Braun’s, be held strictly in the MLB realm without outside legal involvement?

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    • Ender says:

      I would think the players union would get involved and that any suspensions handed out would be far in the future after they finish fighting over it.

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      • Fill says:

        Yeah, but the past CBA allowed the ability to suspend players even without any evidence (why would the union agree to this?) So even with the union getting involved, what else can they do?

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        • Fill says:

          I mean MLB to suspend players

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        • Sparkles Peterson says:

          Go through a lengthy arbitration process, all the while making up scientific “facts” exonerating the players to leak to the simpering sports media.

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      • Pirates Hurdles says:

        I don’t think the union would put up much fight. They will not want to come off as pro-steroid users and their membership actually wants stricter penalties right now.

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        • cnote66 says:

          The Union doesnt care about public opinion — one of the unions duties is to help exonerate their members. The union would fight to the bitter end, to help a player NOT be suspended.

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  3. Sud Belig says:

    That last sentence says it all. There is indeed no doubt about MLB’s zeal to uncover evidence linking players to Biogenesis and PEDs.

    After all, without said evidence, how can MLB extort $$ from A-Rod, Braun, and others to prevent their being suspended. Duh.

    The commish has never had the slightest interest in the integrity of the sport or the safety of its players. So why would we expect he’s done a 180 degree turn now?

    Why do you suppose the MLB drug-testing system is STILL administered internally, rather than by a disinterested third party like WADA? Selig wants to cover things up just as much as the players do — with the rare selective suspensions to provide an appearance of genuine integrity. And the more documents in his possession, the more financial and legal leverage he has.

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  4. Brad says:

    The fact that major leaguers continue to use enhancers to stay at peak level doesn’t bother me – they get to pay the subsequent physical costs and the rhetorical hypocrisy of MLB notwithstanding, is a standard thing (in my own unauthorized opinion) that has gone on practically since the sport has existed. However, the lies, coverups and other moral failures do bother me. It definitely undermines my love for Baseball (which is immense).

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  5. Powder Blues says:

    The league likely doesn’t want to suspend or make public which players are involved. That would damage the brand unnecessarily.

    They would likely take care of business behind closed doors in the form of constant future testing, future blackballing, etc.

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    • Bill says:

      So, what you’re saying is that Ryan Braun will retire for a year and try to fulfill his dream to be an NBA player, then give that up and return to baseball?
      Or, maybe Arod isn’t really hurt?

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  6. When the Fed’s tainted evidence wasn’t enough to prosecute Lance Armstrong, they handed it over to USADA. USADA is totally rigged against the accused, all the power of a prosecutor (subpoena!) and none of the restrictions (no you can’t see the “evidence”, no you can’t question its foundation, no you can’t cross witnesses, no appeal). He may be guilty as sin, but Armstrong was correct that he’d never get a fair hearing before those clowns. A USADA finding is death for international athletes, because all the sponsoring bodies are bound to respect its kangaroo court.

    Baseball famously refused to join these international agreements (and got kicked out of the Olympics), but I bet Selig & Co. are considering whether to hand these tainted docs to USADA and then use its ruling as a fig leaf for suspension. If MLB hasn’t cleared out all the independent arbitrators, they should see through this.

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  7. Youppi! says:

    i got a nickel that there are copies of the records the player allegedly bought with intent to destroy. i hope those leak. public shame is far worse than a 50 game suspension.

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  8. AK7007 says:

    I’m not super supportive of paying for documents, because they could turn out to be “documents” – pieces of paper that say whatever the employee providing said documents thinks MLB wants to hear. They could be legitimate, but also could just be printed or altered prior to being handed to MLB investigators and nobody is checking to see.

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  9. Larry "Bud" Melman says:

    I’ve lost track, I guess; who has Biogenesis documents now? Miami Times, the Feds, and some ex-employees, in addition to the player(s) who bought some, and the used car salesman from Milwaukee? Is that the entire list?

    Anyway, thanks for the article, Wendy.

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  10. WeWanttheFunk says:

    Can a player buy the docs and send them to a foreign country, thereby sending them beyond subpoena without destroying them?

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  11. The NYT is following up that the player is Alex Rodriguez.

    Surprise.

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    • Majesty says:

      I think we all knew it was ARod.

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    • Bill says:

      ARod’s already dirty. Considering how slickly Braun managed to escape judgement last time, my money’s on him. But, either way, I like the idea of player destroying what they were assured was the only copy of records implementing them and then finding out their supplier was selling to both sides.

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  12. Don't Jump Kendrys says:

    Does anyone besides me see the irony of the Bo Jackson commercials each night on mlb.com for 5 Hour Energy? A performance enhancer?

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  13. Harold B.Gross says:

    If the US Government does not apply the HEPA Law here, I will have nothing to do with ANY LAWS!!!

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