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J.C. Romero files a lawsuit he's going to lose

Phillies reliever J.C. Romero is serving a 50 game suspension for testing positive for a banned substance found in an over-the-counter supplement. His defense back when this all broke in January was that he was misled by the Players' Association, the supplement retailer, and his nutionist, all of whom represented to him that there was nothing illegal and/or banned by baseball to be found in stuff you could buy over-the-counter. That didn't get him anywhere with baseball, but he's hoping it gets him somewhere in court:

Phillies left-hander J.C. Romero is being held accountable for his actions last summer.

He believes others should be held accountable, too.

Romero filed a suit Monday in Camden County, N.J., against Ergopharm, Inc. and Proviant Technologies, the manufacturer and distributor of the nutritional supplement that caused him to test positive for androstenedione. Also named in the court proceedings are retail nutrition stores Vitamin Shoppe and GNC, who sold 6-OXO Extreme to Romero and told him that the product would not cause a positive test . . . "I think it's the right thing to do, not only for myself, but for the rest of the athletes," Romero said Monday evening in a telephone interview. "I think the manufacturer has a lot of culpability in this case. It's the reason why I'm suspended in the first place.

When I'm not blogging I practice law for a living, and the lawyer in me fails to see how any of this serves as the basis for a righteous lawsuit. Romero -- like anyone else subject to drug testing of any kind -- is the person responsible for ensuring that what goes into his body is permitted under the rules. That he instead relied on the union or shopkeepers is perhaps understandable, but they are not the go-to places for baseball players seeking consultation about banned drugs. The league has a drug hotline for that, and Romero admitted back in January that he didn't use it. In the context of a lawsuit, the question that would ultimately arise will be whether it was reasonable for Romero to rely on what he heard from the supplement maker or the union or whoever when he made the decision to take the substance in question. In light of the other, more official sources available to him, I'd say no, and I think a jury will too, assuming it gets even that far.

I'm likewise hesitant to have any sympathy for Romero with respect to his suspension. Sure, we may be tempted to feel bad for Romero based on his fairly reasonable claim that he didn't set out to cheat. But once you read what Will Carroll of Baseball Prospectus had to say about it back in January, your sympathy will likely diminish:

According to multiple sources (and also reported by the Philadelphia Inquirer), Romero tested positive for 6-OXO Extreme, a product that enhances testosterone production in ways very similar to anabolic steroids. While legal and still available at your local GNC, 6-OXO Extreme* has always carried a warning that it could result in positive tests. If you look at the above link, you'll be able to find the same warning in the online information.

But it gets better, or worse, if you're Romero. 6-OXO is a product of Ergopharm. Ergopharm is owned and operated by a guy you might remember: Patrick Arnold. Yes, that one. Arnold was the source for the THG used by BALCO. Arnold served several months in jail due to his involvement and is now back in business.

If Romero didn't know what he was taking, he sure got unlucky in picking the product marked "for hardcore users only" and with a connection that baseball fans would rather forget.

To the extent I have any residual sympathy at all for Romero it's based on the fact that Major League Baseball has taken the position that it has no discretion to treat this situation -- one in which a guy was kind of dumb as opposed to kind of evil -- any differently than that of guy who bought and used illegal drugs. Fifty games either way seems kind of harsh. Maybe Romero deserves 25? It can't happen, though, because the post BALCO media overreaction to PEDs -- not to mention Congressional grandstanding -- demanded that MLB adopt a mindless zero tolerance policy, and they did so, mindlessly.