News accounts today say that MLB and Alex Rodriguez played a game of dueling dollars to buy the Biogenesis records that have become the centerpiece of MLB's case against Rodriguez. These alleged payoffs give a tawdry feel to the proceedings but enhance the entire circus atmosphere surrounding this case. One can only imagine what will come next.
Last January, Miami New Times published an article alleging that Biogensis supplied PEDs to major-league players, including Rodriguez. The article relied on customer records, payment records and handwritten notes allegedly kept by clinic founder Anthony Bosch.
Given its anti-PED policy, MLB had a strong interest in obtaining these records to see if players had violated the anti-drug policy. With these records, it could build a PED case. Without them, it had nothing. It needed these records or else it would be in the embarrassing position of doing nothing about PED allegations that were rocking the baseball world.
It tried to get the records from Miami New Times but struck out, so it chose to buy the records for $125,000 from a former Biogenesis employee. According to the Daily News, Rob Manfred, the MLB executive who supervised this investigation, defends the payments as "perfectly legal."
Manfred is right. Buying evidence is not how investigations would be conducted in a perfect world, but this is not a perfect world. What MLB did is what prosecutors do every day. They offer a favorable plea deal or immunity from prosecution in order to procure a witness's cooperation. If done properly, it's permissible and often necessary because those engaged in shady dealings like to keep those dealings hidden and won't come clean unless it's in their interest to do so. As long as it was done right, it made sense because records are preferable to relying exclusively on the testimony of someone like Bosch.
However, it looks like MLB got sloppy with the details. The documents it bought were apparently stolen. According to Rodriguez's civil complaint, they were stolen from the car of a Biogenesis employee in Boca Raton on March 24, 2013, and MLB bought them shortly thereafter. According to the lawsuit, the purchase was made in a cloak-and-dagger fashion, with the cash "handed off in a bag at a Fort Lauderdale...restaurant." Rodriguez's complaint intimates that MLB investigators, if not Manfred, knew the records were stolen when they bought them.
MLB has denied knowing that the documents were stolen. However, if you're buying corporate records from a former corporate employee, you would probably ask how that employee got them because you would want to make sure they aren't stolen. Disgruntled employees sometimes steal things on the way out the door. Beyond this, $125,000 is a strong incentive to steal records. If you don't make sure the employee got them legitimately, you're opening yourself up to the claim that you paid the employee to steal the records, which Rodriguez insinuates in his lawsuit. Dealing in stolen property is a crime under Florida law. If you're buying records, a bag of cash isn't a great way to do it because it hints at tax evasion, which Rodriguez's complaint also insinuates.
It appears that MLB violated two of the cardinal rules of investigation: perception is as important as reality, and details count. When taking any investigative action, look not only at whether the action is lawful but at how it will look later. If you don't, even an above-board transaction can later be made to look sleazy and underhanded. Like the government in a criminal case, MLB is expected to act in a lawful, professional manner. If it doesn't, it loses the moral high ground and can look just as bad as those whom it is prosecuting. Unfortunately, investigative zeal sometimes trumps common sense.
Ultimately, Frederic Horowitz, the arbitrator, will decide if any of this means anything. MLB's focus will be on the reliability of the records, and it will claim that the reliability of these records does not depend on how it obtained them. Team A-Rod will focus on the sleaze factor. It may argue that not only is $125,000 a strong incentive to steal records but it's just as strong an incentive to doctor existing records or fabricate phony ones to give MLB what it wants.
All of this must be taken with a grain of salt. We don't have a transcript of Manfred's testimony. We simply have leaks, probably from those with a motive to cast MLB in the worst possible light.
According to the Daily News, Rodriguez paid $305,000 to buy Biogenesis documents that include "videotapes, documents and affidavits." Attorney Joe Tacopina has denied this. This allegation is as intriguing as it is incomplete.
Rodriguez had no legitimate need to buy these records. If you believe he was conducting a bona-fide investigation of Biogenesis, you probably also believe that OJ is still searching for his wife's killer. The only fair inference is that he wanted to get his hands on these records to keep them away from MLB. That's probably the basis for MLB's claim that he obstructed its investigation. Destruction of evidence is powerful guilty-mind evidence because an innocent person has no reason to destroy evidence.
The word "videotapes" is intriguing. What was videotaped? Did Bosch have a security-camera system that taped him handing off PEDs to Rodriguez and other MLB players? In this day and age, it's possible and one would have to strain to think of better evidence to prove MLB's case. Where are those tapes now? Did Rodriguez destroy them? Did Bosch or other Biogenesis employees keep copies? Did Bosch also tape his phone conversations with Rodriguez? If this is smoking-gun evidence and if it still exists, Rodriguez is in deep trouble.
Again, we have to take this all with a grain of salt because this information is undoubtedly being leaked by people who want to cast Rodriguez in the worst possible light.
Will We Ever Know The Whole Story?
Eventually. The arbitration process is confidential under both the CBA and the Joint Drug Agreement. Even when the hearing is over, the record and the arbitration decision will not be released unless all parties agree, and that isn't likely. If either party takes the arbitration decision to court, however, the rules will change. Court filings are public records and the arbitration decision will be part of the court record. We should get to see it then.