UPDATE: 6/10/13, 9:32 a.m. EDT. ESPN.com’s Darren Rovell reports via Twitter that Alex Rodriguez has added Gordon & Rees’s David Cornwell to his legal team, noting that the latter is no longer working with Ryan Braun.
Major League Baseball’s long-running performance-enhancing drug saga took another turn this week, with ESPN.com reporting that the league is poised to suspend dozens of players—including such stars as Milwaukee Brewers outfielder Ryan Braun and New York Yankees third basemen Alex Rodriguez—over their ties to the defunct Miami anti-aging clinic known as Biogenesis.
An MLB spokesman told The Am Law Daily on Wednesday that the league is in the midst of an ongoing investigation related to Biogenesis and declined to comment further. And while other media outlets have subsequently reported that league officials have not yet made a final decision on whether suspensions will be handed down, the union representing MLB players is taking the issue seriously enough that it has hired its own outside counsel in connection with the matter.
The Am Law Daily has learned that the New York–based Major League Baseball Players Association has retained San Francisco’s Altshuler Berzon and partner Michael Rubin—whom sibling publication The Am Law Litigation Daily named a Litigator of the Week last month for his role representing former college athletes in an appellate win against video game company Electronics Arts—for legal representation related to the league’s Biogenesis probe. (The MLBPA is one of a handful of professional sports players unions that have backed athlete plaintiffs suing EA and other video game makers for profiting from their likeness.)
Biogenesis made headlines in January after the Miami New Times published a story based on internal records it obtained showing that the Coral Gables, Florida–based firm had sold banned substances to more than a dozen MLB players. After unsuccessfully attempting to gain access to the Biogenesis records obtained by the New Times, the league initiated litigation in March against the company and its founder Anthony Bosch. Filed in Florida state court, MLB’s 14-page complaint claims that the actions of Bosch and Biogenesis damaged the league’s reputation. Proskauer Rose sports law cohead Howard Ganz, labor and employment partner Allan Weitzman, and Kobre & Kim litigation partners Matthew Menchel and Andrew Lourie are representing the league in the suit.
Proskauer also has a connection to MLB’s ongoing internal investigation into whether players publicly linked to Biogenesis violated a joint drug agreement contained in the league’s latest collective bargaining agreement with the MLBPA, in which Ganz had an important role negotiating for the league. Former Proskauer partner Daniel Halem—who was hired in 2007 to succeed Frank Coonelly as the league’s general counsel for labor—is heading up an in-house team on that inquiry that includes senior labor relations counsel Steven Gonzalez, Patrick Houlihan, and Paul Mifsud, according to those briefed on the matter. Both Gonzalez and Mifsud also once worked at Proskauer. (MLB’s general counsel is Thomas Ostertag, while executive vice president for economics and league affairs Robert Manfred Jr. is a former labor and employment partner at Morgan, Lewis & Bockius.)
The latest twist in the Biogenesis matter comes a month after the Florida Department of Health referred a potential criminal case against Bosch—a self-described biochemist who has long proclaimed his innocence—to the Miami State Attorney’s Office and Florida Attorney General’s Office, according to news reports. Bosch was not immediately available for comment Wednesday. Susy Ribero-Ayala, a Coral Gables–based solo practitioner representing him, did not return The Am Law Daily‘s request for comment.
ESPN.com reports that the proposed settlement calls for MLB to drop its case against Bosch and indemnify him against any future litigation resulting from his cooperation with the league, which will put in a good word on his behalf with any law enforcement agencies that could decide to prosecute Bosch as a result of his alleged actions at Biogenesis. The league itself, which is in the process of conducting interviews with those caught up in the Biogenesis case, is prepared to issue 100-game suspensions to both Braun and Rodriguez as a result of both players being linked to a second drug offense.
Several players linked to Biogenesis, meanwhile, have hired their own counsel to cope with a probe by the league that appears poised to cut a deal with an alleged drug kingpin to obtain evidence against underlings that utilized his services.
Braun, a former National League MVP, has been advised by Gordon & Rees sports, media, and entertainment partner Wm. David Cornwell Sr. in Atlanta, who joined that firm last year after helping his client successfully scuttle a 50-game drug suspension. Barry Boss, cochair of Cozen O’Connor’s criminal defense and investigations practice, is counseling Detroit Tigers shortstop Jhonny Peralta. And Jay Reisinger, a Dreier LLP refugee and founder of Pittsburgh’s Farrell & Reisinger, a small firm known for its star sports clients, is representing Rodriguez, Seattle Mariners catcher Jesus Montero, and Texas Rangers outfielder Nelson Cruz. (Earlier this year Rodriguez also reportedly hired famed Miami litigator Roy Black of Black, Srebnick, Kornspan & Stumpf.)
The Am Law Daily has previously reported that Farrell & Reisinger and Cozen have both handled work for the MLBPA, which has retained a litany of lawyers in recent years to advise it in cases related to the alleged use of performance-enhancing drugs by certain players. In December 2007, DLA Piper chairman emeritus George Mitchell Jr. released the results of a massive MLB–mandated investigation into the use of illicit drugs in baseball. The so-called Mitchell Report reaped millions in fees for DLA, according to a subsequent feature story on the investigation by The American Lawyer.
The MLBPA spent nearly $5 million in legal fees between the start of its last labor pact in 2006 and December 2010 dealing with federal investigations, books, magazine stories, and leaks leading to newspaper reports emanating from the league’s so-called steroids era. The union’s most recent U.S. Department of Labor filing, which covers its 2012 calendar and fiscal year, shows that the MLBPA’s legal bills have continued to pile up.
Altshuler Berzon, for instance, was paid $129,681 for its work on behalf of the union last year, while Farrell & Reisinger received $75,198 during the same period.
Other outside firms receiving payments from the MLBPA in 2012 include Baker Botts ($29,966); Boston’s Hemenway & Barnes ($38,735); Columbus’s Carpenter Lipps & Leland ($49,222); Dewey & LeBoeuf ($12,977); Keker & Van Nest ($21,050); Los Angeles’s Law Office of Robert S. Giolito ($50,000); McCarter & English ($9,100); New York’s Cohen, Weiss and Simon ($37,428); Polsinelli ($41,926); Sidley Austin ($26,331); Washington, D.C.’s Bredhoff & Kaiser ($22,850); White & Case ($22,521); Winston & Strawn ($7,875); and White Plains, New York–based Yankwitt & McGuire ($46,859).
New York–based forensic investigation firm Stroz Friedberg received $57,431, while the union paid $50,995 to Washington, D.C.–area lobbyist Kevin McGuiness. Steven Panagiotakos, a former Democratic state senator from Massachusetts turned strategic policy adviser for consulting firm Greenwood & Hall, received $19,000, and Bedford, New Hampshire–based government relations firm Legislative Solutions was paid $7,650.
The MLBPA’s longtime lead outside lawyer and labor adviser, Kansas City, Missouri–based Steven Fehr, was paid $116,446 by the union in 2012. The figure represents a steep drop from the $526,594 Fehr received in 2011, according to a federal nonprofit tax filing by the MLBPA for that year, one in which the union was busy negotiating a new collective bargaining agreement. (Fehr is the brother of former union executive director Donald Fehr, who resigned from the MLBPA in 2009, was paid $112,221 in retirement income by the union last year, and since late 2010 has headed the National Hockey League Players’ Association.)
The MLBPA’s in-house attorneys include senior executive advisor Richard "Rick" Shapiro (who earned $682,468 last year, according to the latest Labor Department filing), general counsel David Prouty ($584,780), senior labor counsel Ian Penny ($522,137), senior counsel for business affairs and licensing Timothy Slavin ($520,678), and assistant generals counsel Robert Lenaghan ($440,762), Matthew Nussbaum ($307,404), Doyle Pryor ($282,221), Robert Guerra ($163,530), and Michael Stival ($86,042).
Pryor left the union in September 2012 and is now a neutral arbitrator and mediator with his own practice. Arbitration, which has always been unique to baseball’s collective bargaining history, even giving rise to its own legal definition, is the means by which the current Biogenesis saga could eventually be resolved. The MLBPA’s Labor Department filing reveals payments to roughly a dozen arbitrators picked by the union and the league, which also pays them, to adjudicate disputes between teams and players.
Those arbitrators receiving payments from the union in 2012 were Daniel Brent ($5,154), Margaret Brogan ($6,209), Mark Burstein ($8,149), Shyam Das ($16,770), Robert Herzog ($9,454), Fredric Horowitz ($17,359), Elizabeth Neumeier ($9,870), James Oldham ($5,448), John Sands ($6,119), Sylvia Skratek ($7,480), and Gil Vernon ($5,475). MLB fired Das in May 2012 after he cast the deciding vote overturning a 50-game suspension sought by the league against Braun.
MLB commissioner Allan "Bud" Selig has been a key crusader in cleaning up the league’s image after being criticized for turning a blind eye during the steroids era. But MLBPA executive director and attorney Michael Weiner, who was elected in late 2009 to replace Donald Fehr as the union’s leader, urged the public not to act too hastily in condemning certain players.
"[The league] is in the process of interviewing players and every player has been or will be represented by an attorney from the [MLBPA]," Weiner said in a statement issued by the union. "The commissioner’s office has assured us that no decisions regarding discipline have been made or will be made until those interviews are completed. It would be unfortunate if anyone prejudged those investigations."
Weiner, who received roughly $1 million in compensation last year, has said publicly that tougher drug penalties might not necessarily be the best way to combat the prevalence of illicit drugs. He has also been battling inoperable brain cancer for over the past year and as a result has relinquished some of his duties at the MLBPA. In February, Prouty was promoted from chief labor counsel to general counsel, a position previously held by Weiner.