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Thursday, March 23, 2006
Barry Bonds to Sue Game of Shadows Authors, But NOT for Libel

Attorney Michael Raines, who represents Barry Bonds, plans to file a lawsuit against the authors of "Game of Shadows" (Mark Fainaru-Wada (top) and Lance Williams (bottom)) alleging that they violated California's Unfair Competition Law by using "illegally obtained" grand jury transcripts in writing the book. The lawsuit will ask for damages at least equaling all profits generated by the book's sales. We recently discussed the book and its allegations on Sports Law Blog.

Perhaps more interesting than this lawsuit is what it isn't: a libel lawsuit. If Bonds used steroids and lied about it under oath, a libel suit would have been disastrous for him. A court would have to weigh the veracity of the book's allegations, as truth is a defense to a libel charge. In other words, and fairly or unfairly, Bonds not suing for libel might intimate an admission on his part as to the book's claims, for if those claims weren't true, then Bonds would presumably sue for libel; the fact that he hasn't seems telling (especially since he is obviously willing to sue the authors on another ground -- it isn't like he has an aversion to litigation). Granted, libel claims are extremely difficult to prove, and that is especially true for public figures, but is that really the reason why Bonds isn't suing for libel?

As to the unfair competition claim, this lawsuit will focus on how the Fainaru-Wada and Williams obtained the grand jury testimony (an ostensibly safer topic for Bonds personally). Interestingly, according to an excellent article by attorneys at the law firm of Stroock & Stroock & Lavan, the California Unfair Competition Law (California Business and Professions Code Sections 17200 through 17209) is the state's most frequently used consumer protection statute, with the number of related cases by both private and governmental plaintiffs increasing from year to year. The law is especially popular because, unlike other unfair and deceptive practices statutes, intent is irrelevant, as a "Section 17200 plaintiff" is not required to show that the defendant actually intended to injure anyone. Moreover, a viable Section 17200 claim can encompass any unlawful, unfair, or fraudulent business act or practice, and, meaningfully, a practice can prohibited as "unfair" or "'fraudulent" even if it is not unlawful. And if the practice is unlawful, a plaintiff does not even have to show that the plaintiff was actually injured. In other words, the California Unfair Competition Law is very favorable for plaintiffs.

But will it be favorable enough for Bonds? That remains to be seen, and we can be sure the attorneys for Fainaru-Wada and Williams will attempt to shape the lawsuit in a way that could force Bonds to answer the book's charges. In any event, the bigger story appears to be that Bonds has sued the authors of Game of Shadows and it isn't a libel suit.


Could it be that the suit is designed to expose the leaker? The law was broken in leaking the grand jury testimony. If the authors refuse to reveal their source, and they be sent to jail for contempt of court?

Blogger David -- 3/24/2006 8:43 AM  


Interestingly, the California Supreme Court has held that the First Amendment is not a defense to an unfair competition claim when the defendant has published statements that constitute "commercial speech," and the Cal. Sup. Ct. has articulated a 3-part test to determine what constitutes commercial speech (and Bonds has a good argument that all 3 parts have been met here). Thus, I think Bonds asserted the proper claim because he doesn't have to prove falsity and that the authors published the statements with reckless disregard for their truth or falsity (as he would be required to do in a libel suit).

Blogger Rick Karcher -- 3/24/2006 9:25 AM  

I have not read the book, and have not decided if I will. It seems by reading the excerpt in sports illustrated and listening to people talk about it in the media for weeks It is the same thing people already know, just more in depth and detailed. For instance, People heard Bonds and Giambi took steroids, this just adds who gave it to them, what they took, and how much they took. We all know the basis of the story and none of the information in the book seems like it should be shocking to anyone.

Anonymous tommie -- 3/24/2006 9:53 AM  

I may be wrong, but what the California Supreme Court considers commercial speech is relevant, but not dispositive. I say this because lower state courts need to go with this definition for the time being, but ultimately, the definition of the meaning of the First Amendment to the U.S. Constitution is something which is within the province of the federal courts.

That said, I don't think that this book is commerical speech even within the Nike v. Kasky decision to which I'm assuming rick refers. Both the California and U.S. Supreme Courts define "commericial speech" as "speech which proposes a transaction." (See page 14 of the Nike slip opinion which cites the Central Hudson opinion of the U.S. Supreme Court). In my view, neither this book nor the underlying Chronicle pieces propose a transaction. As the Nike court pointed out, one can go beyond commercial motivation and look to see whether there are product references or whether a communication is formatted as an advertisement to see, whether as a whole, speech is commercial. That still doesn't get you to commercial speech here.

My 0.02.

Anonymous JC -- 3/24/2006 2:31 PM  

Tommie, you might be correct, except that whoever leaked grand jury materials could potentially be in a great deal of trouble. For instance, would it be shocking if someone in the prosecutor's office caused these materials to be leaked in an attempt to create leverage with other witnesses?

Anonymous Anonymous -- 3/24/2006 2:46 PM  


The California Supreme Court's 3-part test is pretty broad as I read it. I see your point, but I think the authors of this book clearly have commercial motivation. They're selling this book for one single reason: $$. How can selling a product to the public, heavily advertising it, and making lots of money off it, not be commercial? I don't see a meaningful distinction between this situation and speech that "proposes a transaction".

Blogger Rick Karcher -- 3/24/2006 5:53 PM  

It is admittedly a tough distinction to explain because almost everybody who publishes has a commercial purpose. The New York Times is in the business of making $$$ plain and simply. Indeed, I posted on another site that the Federalist Papers were published as op-eds in a newspaper which cost readers to buy just like today's do. Papers sell stories about NSA spying, for instance, not only as a public service, but because it sells papers. So the question is not the pecuniary motivation of the publisher, but the content of the message itself.

Speech which proposes a commercial transaction is, to put it bluntly, advertising. If you purchase space in a newspaper or on TV to promote a product - "Miller is less filling than Bud"- such speech is not given the same protection as journalism, advocacy, or other speech. If Miller was indeed more filling than Bud, the idea is Bud should be able to sue Miller for false advertising without having to get into issues of whether Miller was reckless in putting out such a false statement.

For the record, the SF Superior Judge just denied Bonds' request for a temporary order and has cited First Amendment concerns in doing so.

Anonymous JC -- 3/24/2006 6:02 PM  

Yes anonymous and it would not surprise me if something corrupt happened. Maybe money exchanged hands somewhere for this info?
It is a good possibility. This was a pretty major leak.

Anonymous tommie -- 3/24/2006 7:13 PM  

To clarify my other post, maybe that was one of the reasons there was no libel suit as well. It may not be worth it to spend all that money on a lawsuit. I, as most people in the public, already knew the basis for their story. Our opinions probably did not change. This information had already been around. Maybe his lawyers thought the judge would determine people already had their minds made up about Barry Bonds. Even people voting for the Hall of Fame. How could this damage his career substantially more. I think his career was already substantially damaged and it is not like releasing this information will make Bonds lose a substantial amount of money worth suing for. He was damaged goods before the book came out.

Anonymous tommie -- 3/24/2006 7:19 PM  

Great comments, my thanks to all of you for responding so thoughtfully.

David, I agree, the suit may be in part designed to expose the leaker, as Bonds undoubtedly has an ax to grind with that person(s). Persons have certainly sued for less meritorious reasons, and particularly since Bonds likely has a similar ax to grind against Fainaru-Wada and Williams, this lawsuit may serve multiple purposes. As they say, “V” is for Vendetta!

Rick and JC: Both of your analyses of how the First Amendment relates to this unfair competition claim are extremely interesting. It seems as if there is significant ambiguity in California law on both application of this statute and related defenses. Aside from the sports implications, it will be interesting to see how this lawsuit might create, for lack of a better expression, "new law" in California.

Tommie: I see your point about Bonds maybe not feeling like a libel claim is worth it, but I just think that if someone writes a book of lies about you and that book threatens to destroy whatever reputation you have left, your reaction will be to sue them for libel, particularly if you are as wealthy as Bonds and can afford legal teams to represent your claims. The fact that Bonds hasn't done so seems at least suggestive of whether we should believe the book.

Blogger Michael McCann -- 3/24/2006 8:42 PM  

I'm wondering if Apple's lawsuits against rumor sites last year have any relevance.

If I recall correctly, Apple successfully argued that because the information posted were trade secrets marked for internal use only, and could only be leaked by Apple employees under non-disclosure agreements, publishing the information was not protected by the First Amendment.

The same logic would apply here, except it's not illegal for grand jury witnesses to repeat their own testimonies.

Blogger spinachdip -- 3/25/2006 12:20 PM  

It is funny how Bonds' lawsuit is based on an "unfair competition" violation. Quite ironic.

Anonymous Krikor Meshefejian -- 3/25/2006 8:57 PM  

Presumably Bonds' attorneys will take the "unfair" angle under the unfair competition law, and not the fraudulent angle. I imagine fraud (or deception) would be as hard, or harder, to prove than the libel claim.

I'm not a California lawyer, but the unfair practice still has to relate to "competition," does it not? Or at least commerce. Who is the competition here? Bonds? Bonds is not an author (yet).

How has commerce been impeded? Which market would the Act be protecting here?

I imagine the Act is designed to protect the consumer from predatory business practices and other activities that approach, but do not quite reach, the level of an antitrust violation.

It seems to me the book actually fosters competition, in that it is now more likely that Bonds will write (or someone will write on his behalf) a book contradicting the hundreds of interviews in the Game of Shadows.

I doubt the Act exists to protect the sensitive ears of a public who will snatch up the latest gossip on drugs in sports. Nor do I think the Act is designed to step in and afford protection to someone who feels libeled but cannot prove a libel claim.

Blogger ChapelHeel -- 3/27/2006 11:35 AM  

The bottom line is we all know Bonds did it. Even though he never tested positive, we know he did it. This suit is just a stab to weaken the credibility of the writers. It also takes some of the focus off of the details of the book which Bonds wants. Bonds s just trying to trap the public (particulary those of average intellect about law ,who do not understand what the lawsuit is about) into believing since he is suing he must not have done it. I think it is more to have a psychlogical affect on the general public and shift focus.
Because if he stands still and does absolutely nothing, it is much easier for your everyday American to paint the picture or connect the dots.

Anonymous tommie -- 3/27/2006 11:56 AM  

I believe the lawsuit Barry Bonds filed is the first salvo in building a civil rights case against the federal government. How else to expose the authors sources? Publishing a book with 200 unnamed sources is almost unassailable in a civil case. Question: With as much evidence as the authors of the book got directly from government sources that contradict Bond's sworn testimony, why has it been two years and no perjury charges have been filed against Barry Bonds, ala the Federal Government v. Martha Stewart? Common sense tells me that the stuff used to write this book was deemed either not credible, or not admissible by the federal government because any of it would have landed Barry Bonds in prison. They couldn't even get much the mistress' testimony admitted. We are left with a case that has no eyewitnesses, no direct evidence, and sworn testimony by Barry Bonds that remains unassailable.

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