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Tuesday, August 14, 2007
Bonds to Sue Schilling and others for Defamation?

A story from KPIX in San Francisco reports that Barry Bonds has retained two local civil rights attorneys "in connection with legal issues arising from the myriad of false statements attributed to him by players, the media and others," which the attorneys suggest "are defamatory and have legal consequences." Good reports here and here; H/T to TortsProf Blog.

According to Steroid Nation, the first target of legal action likely is the Red Sox' Curt Schilling, who has frequently criticized Bonds (and others) for reported steroid use and other misdeeds, most recently on HBO's Costas Now.

Then there are the following, seemingly contradictory statements from Bonds' new lawyers:
"Those who attempt to profit on false and misleading statements are on notice that we will protect Mr. Bonds' rights to the full extent of the law."
But Then:
"This is not an effort to sue newspapers or book publishers," but he said, "we will be looking at past and future statements attributed to him (Bonds)."
The second disclaimer to one side, this certainly sounds like a shot across the bow of Mark Fainaru-Wada and Lance Williams, authors of Game of Shadows.

In addition, Bonds's attorneys repeatedly refer to concerns about "statements that have been attributed to [Bonds] that are false and go to alleged criminal conduct." I take this as a reference to published and repeated reports that Bonds, in fact, admitted using steroids to several people (notably Kimberly Bell, his former mistress), and that these people testified to Bonds's statements before the grand jury. Game of Shadows is based on grand jury testimony and evidence; it also seems to be the source for many of Schilling's comments.

I previously have argued that we cannot interpret Bonds's failure to sue the Williams and Fainaru-Wada (or anyone else) for defamation as an admission of anything, although this is exactly what Schilling claimed in talking to Costas. But this is too simplistic, because
In order to prevail on a defamation claim, Bonds must do more than prove the statements in the book were false (a substantial burden in itself). Under the First Amendment, a public figure (which Bonds surely is) also must prove (by the elevated standard of "clear and convincing evidence") that the false statements in question were published with actual malice--that is, with knowledge that they were false, or with reckless disregard for whether they were true or false.
In other words, even if some of the testimony before the grand jury was false and even if published reports based on that testimony are false, Bonds still cannot prevail. As a public figure, he must show by clear and convincing evidence that the speaker knew or had subjective belief that the statements were false. Given that extremely high standard, the decision not to sue makes sense and should not be taken as an admission of the truth of the statements.

That high legal standard also means that, if his attorneys follow through on these threats, defamation claim is going to fail. This all strikes me as a lot of bluster from Bond's lawyers. And not the first time. Recall that Bonds previously made an ill-conceived and unsuccessful effort to seize profits from the book when it first came out. This all sounds like warnings to Schilling, the press, and (perhaps) witnesses before the various grand juries to watch what they say.

Ultimately, though, I think Barry Bonds is libel-proof, at least with respect to steroid use. Even if it turns out that Bonds is clean, the evidence hinting at use is such that it would be difficult for him to prove that anyone knew their statements were false.



There has been SO MUCH written and spoken about Bonds and his alleged steroid use that I don't think we can make a determination that Bonds is libel-proof with respect to statements made about steroid use. It depends upon the individual statement that was made, who said it and the context in which it was said. There are many statements about Bonds that would constitute non-actionable opinion, i.e. "Bonds had to have been juicing." There are also factual statements, i.e. "Bonds juiced," but that no reasonable recipient of those factual statements would take as being true based upon who said it.

For example, in an interview a few weeks ago, Bob Costas made a factual statement that his home run numbers were affected "when Bonds started juicing..."; he did not say "in light of all the speculation surrounding Bonds' steroid usage." Now, does the recipient of that statement by Costas think, "wow, there must be something that Costas knows that others don't or else he wouldn't have said that"? I don't know the answer to that. What if a major league player, like Schilling, or a San Francisco Giants trainer says it? Most recipients would reasonably believe that a player or trainer who is on the field and in the locker room with Bonds would be privy to information that others are not. I think one thing is clear, if you and a co-worker are standing by the water cooler and your co-worker says "Bonds juiced," that you would not take his statement as being true.

And the more detailed information that is provided in a statement, the more likely it is that the recipient is going to take it as being true. For example, many of the statements in Game of Shadows contain detailed and explicit information about what precise drugs Bonds took, precisely how and when he took them, how Bonds reacted in certain situations, etc. etc. Those statements will be viewed differently by the recipient than a generalized statement that Bonds juiced.

Also, Bonds does not need to prove that the maker of the statement KNEW it was false, but that the maker acted with reckless disregard as to whether it was true or false. The authors of the book have not revealed many of their sources, so I don't think you can automatically conclude that the authors didn't act with reckless disregard. If their only source is somebody with vengeful intentions (like a former mistress), maybe that would constitute reckless disregard on their part.

Blogger Rick Karcher -- 8/15/2007 8:01 AM  

How the recipient of a statement receives it is not part of the inquiry. The question is whether the speaker knew or had strong reason to believe the statement is true at the time he made it. This is all about the speaker's subjective state of mind, not what a reasonable person should have known.

In practice, reckless disregard has come to mean that the speaker knew about information calling his statements into question and made his statements anyway without doing anything to check that information or to determine whether other information outweighed it. The practice of good journalism, if followed, usually can avoid actual malice. Even if Fainaru-Wada and Williams knew that some sources (say, Kimberly Bell) had axes to grind, there can be no actual malice if they did their jobs and looked for corroborating witnesses or other information suggesting the truth of her statements (e.g., she was testifying under oath to a grand jury).

Blogger Howard Wasserman -- 8/15/2007 8:19 AM  


While I think such a lawsuit is a bad idea and will likely fail, I don't think I can go all the way and say that Bonds is libel-proof. First, these allegedly defamatory statements involve his career, so they would be libel per se, where damages are presumed in most states(assuming that malice is shown). I think, but am not sure, that California and Massachusetts stil adheres to the per se rule. While showing knowledge of falsity or reckless disregard is extremely difficult, a clever argument that the rumors and allegations have become a "trash Bonds" cottage industry, it could be a hook, especially if Bonds does not get indicted.

Just think: what is Bonds was a nice guy and a trial was held in San Francisco?

Blogger Mark Conrad -- 8/15/2007 9:17 AM  

Howard, to the contrary, how the recipient receives it is in fact relevant to the inquiry of whether it's a factual statement (i.e. not opinion, hyperbole, etc.). A factual statement is a prerequisite for defamation liability and if nobody would take the statement literally, then there is no defamation claim.

Blogger Rick Karcher -- 8/15/2007 6:32 PM  

Rick: Oh, ok; crossed signals. I was not focusing on whether the statements were factual, where you are right, they must be factual or be based on underlying facts to be actionable. I focused my post on actual malice. I think even if the statements were factual and false, Bonds still loses.

Blogger Howard Wasserman -- 8/15/2007 10:02 PM  

Come on, if Bonds were to sue everyone who has ever said anything about him, the only people on the planet who would be safe are Benedictine Monks

Anonymous Anonymous -- 8/16/2007 12:23 PM  

I think you all might be missing just who the likely targets of these potential law suits are. I think Kimberly Bell and Barry's former friend and baseball collectables partner are the likely targets. To date these figures have not said much publicly but they have implied much (said much to the grand jury and the feds) and Kimbery is about to say much to all of us in October when here Playboy spread and interview is published.

I don't think Barry is going to take the position the authors of the Game of Shadows or the publisheers of the to be released playboy ariticle knowing libaled Barry. But rather he is going to take the positon that these two (Kimberly Bell and his former business partner and friend) libaled him. To win this case Barry only has to prove the the proponderance of evidance shows that the lied about their converstations with Barry. If their are others that heard and participated in these conversations and they support Barry's contention that Kimberly and company are lying then Barry just might be able to pervail in these law suits.

Anonymous Mark Raines -- 8/17/2007 7:43 AM  


1) Bell and Bonds's former business partner have absolute immunity from defamation liability for false statements made before the grand jury. (Calif. Civ. Code ยง 47). My quick research has not revealed whether the immunity also applies to non-sworn statements to federal investigators, although my guess is it does.

2) As for the interview Bell gives to Playboy: Assuming that Bell tells Playboy substantially the same things she told Fainaru-Wada and Williams, any defamatory statements from Bell already are out there and already actionable.

3) In any event, First Amendment protections still apply because Bonds still is a public figure--so he must prove falsity and actual malice by clear/convincing evidence. So suppose, as you suggest, Bell's tells Playboy "Barry told me he took steroids" and Barry did not, in fact say that to Bell. In order to prove his case, Barry must show that he was damaged by Bell's false statement. Any damages result not from the front end of the statement (Barry and I talked), but from the back end of the statement (Bonds took steroids) being false. So that is going to require Bonds to prove, in court, by clear and convincing evidence, that he did not take steroids.

Blogger Howard Wasserman -- 8/17/2007 10:32 AM  


Bell's Grand Jury Testimory is indeed protected. Game of Shadows did not specificly identify Bell as the source of any of their information and therefore she is also protected here. But, Bell is not protected for anything she says in her soon to be published Playboy interviews. If Bell says anything about any conversation with Barry that Barry believes he can prove is false (others were present when conversation occured). Barry has all that he needs to go after Bell.

Anonymous Mark Raines -- 8/17/2007 11:08 PM  

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