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And that’s our country, isn’t it? Guilty before innocent. That’s the way our country works now. And then everybody’s talking about sue, sue, sue. Should I sue? Well yeah, let me exhaust … let me just spend. Let me just keep spending. I’m going to explore what I can do and I want to see if it’s going to be worth it, worth all the headache.
Roger Clemens

In his interview with Mike Wallace, Roger Clemens looked at his most uncomfortable while responding to the suggestion that he should take legal action against his Mitchell Report accuser, former personal trainer and major league strength coach Brian McNamee. Some found it risible that an athlete who was paid an eight-figure salary for half-season’s work last year should cite the expense of a suit as a reason not pursue legal action; many considered the lack of legal action as an admission of guilt, not only by Clemens, but by all the athletes named in the Mitchell Report and other sources as PED users.

What many of Clemens’s critics didn’t know was that by the time the 60 Minutes interview was broadcast, the pitcher’s attorneys had already filed a defamation lawsuit against McNamee, alleging that every single allegation made by McNamee against Clemens in the Mitchell Report was false. The press conference scheduled for yesterday-originally billed as a follow-up to Clemens’s interview with Wallace-would actually center on the legal action against McNamee, and would include a 17-minute audio recording of a bizarre phone conversation that allegedly took place between Clemens and McNamee late last week. It was a full-court press, complete with Clemens announcing that he was accepting Congress’s invitation to testify before the House Committee on Oversight and Government Reform, with no apparent restrictions on his testimony.

Now that Clemens and McNamee seem locked on a collision course, not only before Congress but in a Texas court as well, we’re going to take a look at the litigation, its pitfalls, and its prospects of success.

This is not a legal proceeding. That’s for others to decide. Let’s be clear about that. This is a private investigation, without any power to compel cooperation or participation. It is not a judicial proceeding. It is not a trial.
–Senator George Mitchell, describing the contents of his report to the Associated Press.

First, let’s step back. With all the accusations of steroid use that have been made in recent years, only one other current or former player took the initiative to sue: Barry Bonds. However, Bonds’s suit, brought against Mark Fainaru-Wada and Lance Williams shortly after the release of Game of Shadows didn’t actually dispute the truth of the allegations the authors made against Bonds, but rather sought to have the book’s profits withheld from the authors on the theory that those profits were based on illegally-obtained grand jury testimony. The case was voluntarily dismissed by Bonds after a judge denied his request for an injunction and expressed doubts about the suit’s ultimate chances of success.

The Clemens suit is different. A claim of defamation (usually broken down into slander for spoken statements and libel for statements made in writing) accuses someone of saying or writing something untruthful that is then “published” to a third party, for the purpose of injuring the reputation of the person making the claim. Because a statement can’t be defamatory if it’s true, the truth of the allegations McNamee made against Clemens is the main issue of the suit. The question is simply whether or not McNamee injected Clemens with steroids and HGH in 1998, 2000, and 2001. The Clemens complaint calls McNamee’s statements in the Mitchell Report “defamation per se,” which isn’t just the egregious use of Latin to make things sound fancy. Defamation per se is a legal term which refers to certain kinds of defamatory statements that are so bad that the person bringing the lawsuit can skip the step of proving that their reputation was harmed by the statement-such as an accusation of criminal conduct, or of giving someone a venereal disease. Claiming that an athlete used illegal performance-enhancing drugs certainly seems to fit.

Defamation is a notoriously hard case to prove. In this situation, the allegations are all about the actions of two men alone in a room together with no other witnesses, and likely no physical or documentary evidence to connect or divorce them from what McNamee says they were doing. Clemens will face an uphill climb making his case, both because he bears the burden of proof and because he has to prove a negative-that an event that McNamee doesn’t tie to a specific date and time didn’t happen.

In many ways, Clemens’s case might have been easier if, as threatened last week, McNamee were the one suing him for defamation. In that scenario, the burden to prove steroid use would be on McNamee, and Clemens would be in the improved position of poking holes in McNamee’s case rather than trying to present his own. However, there are other considerations that favor the Rocket’s taking the initiative. By bringing a suit before McNamee could, Clemens was able to ensure that his case will be heard by a court in Texas, where a jury might be more likely to look favorably upon him. If McNamee had filed suit on his home turf, on Long Island in New York, Clemens would’ve had to worry about a jury pool full of Mets fans who might still be sore with him for beaning Mike Piazza.

Aside from securing home-field advantage, Clemens also gets a significant public relations advantage from being the guy that’s doing the suing, rather than the one that’s getting sued. By acting first, Clemens is going to court voluntarily, and issuing his denials in the format of a sworn statement (his petition) and will presumably follow that up with sworn testimony in depositions and at trial. It’s the kind of move that creates the impression that he’s genuinely aggrieved.

I’m angry that what I’ve done for the game of baseball and as a person, in my private life, what I’ve done, that I don’t get the benefit of the doubt, the stuff that’s being said…. Twenty-four, 25 years, Mike, you’d think I’d get an inch of respect. An inch.
–Roger Clemens

The merits of Clemens’s case against McNamee are likely to come down to the testimony of the two men and a judgment as to which one of them is more credible. The pitcher’s appearances on 60 Minutes and at yesterday’s press conference have already been analyzed in microscopic detail, with people studying posture, demeanor, every nuance and inflection of his wording. The result has largely been an empty canvas-where people are inclined to think he’s guilty, they find his performances fake and evasive; where people are inclined to defend him, his righteous anger rings true.

Regardless of these preconceptions, by the standards that are usually applied, Clemens makes a pretty good witness: to all appearances he’s a solid citizen who’s visible in his community, and he’s consistently denied steroid usage in the press. In contrast, McNamee’s an admitted lawbreaker who was writing strident letters to the New York Times about how steroids weren’t the answer for improved athletic performance around the same time that he now claims he was injecting Clemens with testosterone and introducing him to HGH. That’s a pretty large inconsistency, and one Clemens’s lawyers seem determined to exploit.

In regard to his credibility, the fact that he apparently made a deal with the federal authorities to keep himself out of jail won’t help. The Mitchell Report has stood common sense on its head on this issue, claiming that McNamee is credible because the feds told him he would face prosecution if he lied to Mitchell. The question is, under what terms did McNamee come to initially cooperate with the government, and were those terms contingent on McNamee naming Roger Clemens? Generally, when a witness is testifying under a deal in which he’s exchanging his testimony for a reduced punishments or forbearance of prosecution, he becomes less credible, not more, because of the transaction.

Another detail from the report that might not aid McNamee at trial is Andy Pettitte‘s admission that the trainer administered HGH to him in 2002. In the sports world, this is relevant because of Clemens and Pettitte’s reputation for being joined at the hip; in a court, the only thing it proves is that McNamee had access to HGH and that he actually injected pro athletes-both points that Clemens is likely to concede. It’s possible that testimony of McNamee’s activities with Pettitte after the period in which McNamee claims to have provided steroids for Clemens would not be admissible at trial.

Now, before the emails start coming in accusing me of being a Clemens apologist, I want to emphasize that I don’t, at this point, believe or disbelieve either side’s case-I’m just presenting the arguments. After all, witnesses who make deals with the government-even those who have a history of lying or criminal conduct-regularly give truthful testimony in court; people who don’t have previous criminal records sometimes get caught lying. There isn’t enough information yet to make any sort of judgment. Before this matter reaches trial, there would likely be months, perhaps years, of preparation, discovery, and depositions. If you give skilled litigators enough time to dig through someone’s life and financial records, all sorts of interesting and unexpected things can happen.

If it goes to trial, the Clemens/McNamee litigation could be the Mitchell Report’s one stop in a court of law; the results of such a trial could define its legacy more than any number of press conferences or congressional hearings. Because so many of the accusations in the report were regurgitated from press sources, and many of those that weren’t (such as the accusations based on the testimony of Kirk Radomski) were supported by some documentary evidence, we’re not likely to see many more defamation claims based on the Mitchell Report-unless Clemens succeeds against McNamee. In that case, all bets would be off.

Arguments are to be avoided; they are always vulgar and often convincing.
–Oscar Wilde

However, let me offer a final cautionary note for Clemens. When I was in practice, and someone threatened one of my clients with a defamation claim, the warning to the would-be litigant was often, “Remember Oscar Wilde.” In 1895 Wilde brought a criminal defamation suit against the Marquis of Queensberry (the same one who promulgated the rules of boxing) because of an insult the Marquis made about Wilde’s sexuality. At trial, the defense was able to produce witnesses to Wilde’s lifestyle, who proved that the insult was actually truthful and not defamatory. As a result of the inquiry he initiated, Wilde wound up being convicted of “gross indecency” and sentenced to two years’ hard labor. The lesson? If you sue for defamation, you well better have the truth on your side-otherwise, it might be more than your reputation that gets hurt.

Thank you for reading

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