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Monday, January 07, 2008
Thoughts on the Clemens Defamation Suit

As everyone probably knows, Clemens today filed a defamation action in state court in Harris County, Texas (which includes Houston). Story (including a link to the Complaint) here. ESPN's Outside the Lines will have a program on Clemens at 2:30 E.S.T. and Clemens will hold a press conference at 5 p.m. E.ST..

My take on several things about this suit:

1) Three new things I learned from the Complaint:
a) McNamee was a suspect in a rape investigation in Florida in 2001. Although no charges were filed and McNamee explained the situation away to Clemens, it allegedly lead to his termination from the Yankees. The Complaint also alleges that Clemens agreed to continue training with McNamee only after McNamee complained that the investigation was preventing him from getting other work.
b) In 2001, McNamee wrote a piece in The New York Times decrying the assumption that steroid use was rampant and arguing that players' improved physiques and performance could be attributed to training harder and eating smarter.
c) The Complaint suggests that McNamee named Clemens to federal investigators only after they pressured him to identify Clemens, particularly by threatening to move him from "witness" to "target" status in the investigation. It further alleges that McNamee's interview with the Mitchell Commission consisted of federal agents reading his prior statements and McNamee being asked to confirm those statements.

2) The Complaint clearly lays the groundwork for attacking McNamee's credibility (prior inconsistent statements, sleazy guy, alleged sex offender). That being so, it is interesting that Clemens has not sued Mitchell and/or Major League Baseball. If McNamee is as disreputable a character as the Complaint makes it seem, that could call into question whether Mitchell acted with actual malice in believing and repeating McNamee's claims in the Report.

3) The Complaint makes no mention of actual malice or Clemens's status as a public figure, issues that will be in the case and on which Clemens will bear the burden of persuasion. I guess it is implicit that because McNamee knew first-hand everything he was talking about, he knew his statements were false.

4) Look for McNanmee to remove the case to federal district court based on diversity jurisdiction (Clemens is a Texas citizen, McNamee New York). McNamee cannot want to have a local Texas juror on this one. It is unclear whether McNamee will file either a separate lawsuit or a counterclaim for defamation.

5) The blog received an e-mail today looking for commentary on the following proposition: That Clemens filed this lawsuit so that when he goes before the House Committee on Oversight and Government Reform next week, he can decline to answer any questions, citing pending litigation. Mike said that pending civil litigation is not a valid basis for refusing to answer questions under oath. Geoff agreed, but added that, seeing as how government officials are the ones who always assert this as a basis for refusing to answer questions, the committee was unlikely to use that as a basis for a contempt citation.

I agree with both of my cohorts, but would add two points. First, to Geoff's point, I never have seen a member of the government refuse to answer a question under oath citing pending litigation/investigation. Second, it does not matter one way or another. If we learned anything from the 2005 hearings, it is that the committee will do nothing to a player who bluntly refuses to answer questions for any valid or invalid reason (see McGwire, Mark). So if Clemens cites pending litigation rather than take the Fifth next week, the committee would not move against him in any event.

6) I give Clemens credit. I still am not sure I believe his denials. But he now has put himself out there and placed the question of whether he used steroids squarely before a court of law for resolution. And even before trial, bad things happen to plaintiffs (and their attorneys) if they file complaints containing false statements.


From a litigator's POV, I think making public statements while in litigation, especially before giving a deposition, are a bad route because you have no control over the context in which any statements will be used or the line of questioning.

I think that Clemens pursued this interview despite his legal team's advice.

Blogger qtlaw24 -- 1/07/2008 2:55 PM  

Clemens must have consulted with his attorneys before doing the Wallace interview. If anything is clear, it is that Clemens has orchestrated a campaign to clear his name.
As to the public figure standard of actiual malice, I think this is one case where it really does not matter. McNamee is either lying or he is telling the truth. Negligence is not one of the options. And if he is lying, Clemens surely has suffered great injury to his reputation.
So this is an unusual public figure libel case because it is really a slam dunk if Clemens is telling the truth. But that is a big if.
I do find it hard to believe that Clemens would do what he was doing if he had in fact taken the steroids. That would be serious chutzpah.
Two last thoughts. If Clemens had been on the juice, surely he would have told someone about it like his good friend Pettitte. If Pettitte backs Clemens, I would believe Clemens is telling the truth.
Finally, I cannot imagine why they did not sue Mitchell and DLA Piper, if Clemens is to be believed. While absence of malice would be a defense for the legal team, a judgment against them would be true vindication.
Alan Milstein

Anonymous Alan Milstein -- 1/07/2008 4:48 PM  

I think if one had to identify Clemens's realistic goal it would be first year election to the Hall of Fame. That would go a long way in clearing his name.
I find it interesting that a pole published in the NY Times claims 59% of the electorate would vote for his induction.

Being an Israeli journalist, I am not a baseball expert, but to the best of my understanding in a drug allegation free world Clemens is 100% HOF vote.

I think being prepared to take the case to court makes some ground in his attempt to reach the 75% threshold. He has 5% - so it is doable.

Anonymous -- 1/07/2008 4:53 PM  

At the press conference today, Clemens's lawyer said they asked him to wait before going on TV. Apparently, Clemens disagreed.

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