A-Rod’s Cousin Gets Deposition Delayed In MLB Drug Suit

This article was originally published by Law360.com.

Law360, Miami (August 21, 2013, 4:58 PM EDT) — The Florida state judge presiding over Major League Baseball’s lawsuit accusing a Miami health clinic of providing performance-enhancing drugs to Alex Rodriguez and other players granted 10-day stays Wednesday to Rodriguez’s cousin and another nonparty the league wants to question.

Attorneys for Yuri Sucart, who is Rodriguez’s cousin, and Jose Gomez asked Circuit Judge Ronald Dresnick to stay depositions requested by MLB until after they appeal his previous denials of protective orders for them.

“We think if discovery is granted, it would essentially make moot the appeal. The sole goal of baseball at this point is to get discovery and subpoena third parties,” Sucart’s attorney, Jeffrey Sonn of Sonn & Erez, told Judge Dresnick on Wednesday.

If Sucart’s appeal, which has already been requested in the Third District, is successful, it would result in a dismissal of MLB’s case, Sonn said, because Judge Dresnick had issued his order based upon a finding that Sucart lacked standing to assert that the circuit court lacked subject matter jurisdiction over the underlying case.

Gomez’s attorney, John Lukacs, said he plans to file a similar appeal with the Third District.

Sucart and Gomez sought longer stays to cover the duration of the appeals process, possibly 60 or 90 days if it is expedited, they estimated.

But Judge Dresnick said that in the interest of not stepping on the Third District’s toes, he generally grants a stay simply to allow the party time to file an appeal, then leaves it up to the appeals court to stay the case further, if it wants to do so.

“That’s all for me. Any other stays you want, go to the Third District,” he said to conclude Wednesday’s hearing.

Sucart and Gomez, as well as several other defendants and nonparties in the case, have argued that MLB’s claims of tortious interference against Biogenesis of America LLC and others affiliated with the clinic are preempted by the Labor Management Relations Act and cannot be adjudicated by a state court.

Because federal law does not allow suits against a nonparty to a collective bargaining agreement, the case would then have to be dismissed, they said.

Judge Dresnick ruled against these arguments, most recently at a July 29 hearing. Sucart had put forth a motion to dismiss at that time, having had his motion for protective order already denied on June 26.

The primary argument for preemption focused on a debate over whether the court would have to interpret the collective bargaining agreement in order to determine whether it had been breached, as required under Florida state law for a claim of tortious interference.

MLB holds, however, that the policy of its drug prevention and treatment program — which prohibits the use of performance-enhancing drugs — is explicitly clear and needs no interpretation.

MLB also argued that because the defendants and nonparty movants in the case are not subject to the collective bargaining agreement, the league does not have alternative recourse to address its tortious interference claim by means of the agreement’s grievance process or through the National Labor Relations Board.

The league filed suit in March, accusing Biogenesis clinic program director Anthony Bosch and others of making performance boosters available to players and providing them with instructions on how to avoid testing positive for the drugs, according to the complaint.

According to the complaint, which was amended Aug. 5, Biogenesis provided several players, including former All-Stars Manny Ramirez, Melky Cabrera and Bartolo Colon, with prohibited performance enhancers.

The suit also cites reports from the Miami New Times, Yahoo Sports and ESPN.com from earlier this year, which printed documents from the clinic that name former most valuable players Rodriguez and Ryan Braun and other ballplayers as patrons of the facility.

MLB in the past month has issued suspensions of 211 games for Rodriguez, 65 games for Braun, and 50 games apiece to 11 other ballplayers, including 2013 All-Stars Nelson Cruz, Jhonny Peralta and Everth Cabrera in connection with the Biogenesis scandal.

All of the players are currently serving their suspensions, except for Rodriguez, who has filed an appeal with the Commissioner’s Office and is considering other actions against MLB.

In addition to the named defendants in the case, MLB has also pursued information from several nonparties, including Sucart, who worked as Rodriguez’s assistant and was connected to Rodriguez’s 2009 admission of prior PED use.

Major League Baseball is represented by Howard L. Ganz, Neil H. Abramson, Adam M. Lupion, Allan H. Weitzman and Jurate Schwartz of Proskauer Rose LLP and Matthew I. Menchel, Andrew C. Lourie, John D.Couriel and Adriana Riviere-Badell of Kobre & Kim LLP.

Biogenesis is represented by Emil Infante of Infante Zumpano LLC.

Yuri Sucart is represented by Jeffrey R. Sonn of Sonn & Erez PLC.

Jose Gomez is represented by John C. Lukacs.

The case is Office of the Commissioner of Baseball v. Biogenesis of America LLC, case number 2013-10479-CA-20, in the Eleventh Judicial Circuit Court of Florida.

–Additional reporting by Sean McLernon and Carolina Bolado. Editing by Jeremy Barker.

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