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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