Players' legal options look unpromising
Burden on plaintiff would be to prove libel, with malice
NEW YORK -- If Roger Clemens or any of the other 88 players whose names appear in the Mitchell Report are seeking legal redress, the grounds on which to file a civil lawsuit may be shaky, according to a legal expert.Clemens, a seven-time Cy Young Award winner who has more wins than any active pitcher with 354, was the most noteworthy player to be included in former Sen. George Mitchell's 311-page report, which investigated and analyzed the use of performance-enhancing drugs in Major League Baseball during the past decade. Clemens, currently a free agent and most recently a member of the New York Yankees, denied the accusations contained within the report (pages 167-175). His attorney, Rusty Hardin, said that Clemens had been "slandered," but also said that Clemens "is left with no meaningful way to combat what he strongly contends are totally false allegations." Hardin didn't threaten to sue. If Clemens wants to go down that road, said one leading Chicago-based attorney with knowledge of such legal actions, his case would be for defamation against all the parties -- Mitchell, his law firm (DLA Piper), MLB, which funded the report, and Brian McNamee, Clemens' former personal trainer, who supplied first-person testimonial evidence about him. "First, since truth is a defense to a defamation suit, Clemens would have to hope that they can't substantiate the claims," said Chicago attorney Keith Scherer, responding to an e-mail message. "The trainer can substantiate the claims all by himself if a jury believes his testimony. If they have anything else on him, or can get anything else by digging deeper, that would be the ballgame. As a public figure, Clemens would also have to prove that they acted with malice. There doesn't appear to be any malice here." In the report, Mitchell said that McNamee was handed over to his committee by the U.S. Justice Dept. as part of its investigation into the Bay Area Laboratory Co-Operative. McNamee, then a strength and conditioning coach for the Toronto Blue Jays and later the Yankees, was identified as a customer "and possible sub-distributor" of drugs purchased from Kirk Radomski, a former Mets clubhouse employee who pleaded guilty in the case and was one of the primary sources for Mitchell's report. Under an agreement with the U.S. Attorney's Office in San Francisco, McNamee disclosed information to the feds about Clemens, Andy Pettitte, Jason Grimsley and Chuck Knoblauch. He also provided the same information to Mitchell. Under McNamee's federal agreement, Mitchell wrote, "No truthful statements can be used against McNamee in any federal prosecution by that office; if, however, he should be untruthful in any statements made pursuant to that agreement, he may be charged with criminal violations, including making false statements, which is a felony." Thus, McNamee had a lot to lose by lying to the feds, who sat in on his three interviews with Mitchell and was advised "that he could face criminal charges if he made any false statements during these interviews, which were deemed by the prosecutors to be subject to his written agreement with the U.S. Attorney's Office." Under those circumstances, grounds for a civil lawsuit become even more challenging.
"There is a more pragmatic reason a player might not pursue a defamation suit," Scherer said. "Civil suits lead to depositions and the exposure of all kinds of private records -- phones, e-mails, text messages, financial records and travel records. It's hard to imagine a baseball player who would want to let that kind of information out of the can."According to Mitchell, McNamee told the feds and his committee this about Clemens: In 1998, when both were with the Blue Jays, the trainer injected Clemens with the steroid Winstrol "approximately four times in the buttocks over a several-week period with needles that Clemens provided." In 2000, when both men were with the Yankees, McNamee told Mitchell that he "injected Clemens four to six times with testosterone" and later multiple doses of human growth hormone, which is injected into the abdomen.
"On each occasion, McNamee administered the injection at Clemens' apartment in New York City," Mitchell wrote.These statements leave Clemens little wiggle room, legally, because he must prove that McNamee was lying with malice for a jury to find that he was defamed by any of the parties in the law suit. "These cases are not easy to win," Scherer said. "Let's say a player had a righteous defamation case and loses because he can't prove the other side acted with malice. If he loses the case, the public will read that as 'he did steroids.' And even if he wins, damage awards tend to be small in this kind of case. "Clemens' denials are probably the best he can do to rebut these allegations without exposing himself to much greater risk."
Barry M. Bloom is a national reporter for MLB.com. This story was not subject to the approval of Major League Baseball or its clubs.