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Gaming the MLB: How One Agency Covered Up the BioGenesis Scandal

According to the Major League Baseball’s Drug Prevention and Treatment Program players who test positive for performance enhancing substances are subject to an 80 game suspension for their first offense,  162 games (a full season) including the postseason for those who test positive a second time, and if a player is caught a third time they will receive a lifetime ban from the MLB. The program, created in 2006 and updated in 2013 to include random in-season testing for H.G.H., has been described as the strictest drug testing program in all of professional sports. For each case, fines are issued and the suspensions are to be served without pay. The MLB along with the Players Association adopted these stringent rules in an attempt to scrub clean the image that has long stood as a stain on the baseball’s reputation. The “steroid era” of baseball is generally accepted as the seasons between the late 1980’s through to the late 2000’s when a number of players were suspected of using performance enhancing drugs and was a norm for many of the games top stars at the time, though many continue to deny they ever used them.

While the efforts by the commissioner’s office and the players union seem like sufficient deterrents to the use of PEDs, 37 players have received suspensions since the 2013 season with Jenrry Mejia being handed the first and only lifetime ban for PED use. The relationship between the commissioner’s office and players, along with their representation, is best described as adversarial, as the lapses in transparency have lead to many up and coming players concocting new ways to cheat the system and a mutual distrust of the other sides intentions.

In an article published last week by the New York Times, authors Michael Schmidt and David Waldstein investigated this contentious relationship through the lawsuit of former ACES agency employee Juan Carlos Nunez against his former bosses Seth and Sean Levinson. The complaint, which was filed back in February, claims that while an employee of ACES, Nunez was offered payment, that he says he declined, to take the fall for covering up the PED use of former All-Star outfielder Melky Cabrera, as well as spending three years in prison for directing players to the South Florida Biogenesis clinic. After serving his sentence he went to the MLB and urged them to take action against the Levinsons.

Erik Groothuis, Nunez’s attorney in the lawsuit against the Levinsons, said Nunez originally tried to get “justice” through MLB two years before he filed it. “That didn’t happen,” Groothuis said, “and there’s ACES still getting paid for the players that Juan brought to them, while he is permanently barred from working in baseball.”

Per the Authors, “Major League Baseball turned over the information from Mr. Nunez regarding the Levinsons’ alleged conduct to the MLBPA because it is the union’s responsibility to regulate agents,” the commissioner’s office said in a statement. “Despite numerous requests, MLB was disappointed it was not given the terms of whatever settlement that was reached between the MLBPA and the Levinsons, and MLB became aware that the Levinsons would be allowed to continue to represent players.” The tension between the commissioner’s office and the player’s union has evolved into zero-sum games. Continued from the article: “The dispute has been a source of deep frustration for Major League Baseball, which sees the union as unwilling to work with the commissioner’s office on many fronts. And it has exposed a gap in baseball’s drug testing program, which is generally considered among the strictest in sports: MLB has no power to regulate the agents who work in the game or to punish any who may facilitate performance-enhancing drug use by their clients. Only the players and their union can do that.”

While the information was shared with the players union, the decision to not pursue the investigation into the Levinson’s came down to the speculation from quoted lawyer Moe Fodeman, that witnesses were not willing to sign non-disclosure agreements, thus calling into question the legitimacy of internal investigation. He continues that if a legitimate internal investigation is to take place the NDAs are most likely going to have to be waived. This would seem to be an unlikely course of action for the union whose policy is not to comment on  investigations into its players or the agents that represent them.