Roger Clemens, 60 minutes, and you. A lesson in defamation.
January 4th — BREAKING UPDATE: The “ish” is hitting the fan. Roger Clemens has been “asked” to testify before Congress. Clemens response? “uh, I have to check my schedule”. ESPN has the details.
January 7th — UPDATE: Clemens has filed a defamation suit against McNamee, which will be all but impossible to win. McNamee also plans to countersue…which will be all but impossible to win. So, basically, both parties are working at making themselves more credible in the eyes of people who might not know enough to know they aren’t doing anything.
Yeah…anyone else remember when that Roger Clemens guy was mentioned in the Mitchell Report? I’m sure most of you have already seen this video, where the Rocket steadfastly denies his usage of steroids and HGH (albeit 10 days after the report came out…Rocket, I know it doesn’t take 10 days for the spin doctors to come up with a one and a half minute speech, that clearly looks like its been spliced together), but I will link to it anyway.
Pretty straightforward, right? Now, here’s where it gets sticky. The New York Times is reporting that Roger Clemens will face a lawsuit IF he says anything in the interview denying that Brian McNamee, his former trainer, injected and provided Clemens with performance enhancing drugs. Yes, you read that right. What you’ve just witnessed is the very rare “defamation suit for making me out to be better than I am”. Details from the Times,
The “60 Minutes” interview was taped Friday at Clemens’s home in Katy, Tex., and is scheduled to be broadcast Sunday at about 7:30 p.m. Eastern, after the conclusion of an N.F.L. playoff game. The lawyer, Richard D. Emery, said in a telephone interview that Clemens should try to keep the segment off the air or face a lawsuit for damaging McNamee’s livelihood.
“He’s got a chance to protect himself,” said Emery, who is based in New York and specializes in libel and defamation actions. “We’re not going to sue him if he doesn’t do it. But if he does it, we’re going to sue him.”
The idea that Clemens could bring a defamation suit against McNamee and the other people involved with the Mitchell Report has already been covered (he probably would be unsuccessful), but what about the other way around? Does McNamee have any leg to stand on if Clemens mentions him in the 60 minutes interview? Lets review the elements of a slander (spoken defamation) suit, shall we?
A slander suit requires defamatory language, of or concerning the plaintiff, publication of that language to a third person, and damage to the plaintiff’s reputation. If the defamation involves a matter of public concern, the plaintiff must also prove falsity of the language and fault on the part of the defendant. Pretty easy, right? Lets see…
McNamee would easily meet the first requirement as Clemens statements would adversely affect McNamee’s reputation
(he’d be looked at as a liar). The statement also concerns McNamee, so the second element is met. The fact that Clemens is on 60 minutes; a show that is viewed by millions of people every week, allows the publication element to be met. Now, we come to the fourth element…damages. In normal slander cases, the plaintiff must prove special damages (pecuniary or monetary). Now obviously, I’m not privy to all of the facts surrounding this situation, but I don’t really see how McNamee would be able to prove any special damages…its not like Clemens’ defaming of him on 60 minutes is preventing him from signing an endorsement deal or lost wages…it doesn’t look very promising. Ah, but wait! There is a special type of slander, called slander per se, which allows a plaintiff to bring a slander suit without proving special damages if one of four categories are met:
- Adversely reflect on one’s conduct in a business or profession;
- One has a loathsome disease;
- One is or was guilty of a crime involving moral turpitude (gross violation of a standard of moral conduct); or
- A woman is unchaste.
Okay, lets cross numbers 2 & 4 off the list immediately. Some people might think that giving performance enhancing drugs to athletes is a crime of moral turpitude, but McNamee wasn’t found guilty of anything…In fact, he plea bargained with prosecutors to not be charged with any crime in exchange for his testimony. So, that leaves us with number 1, adversely reflecting on one’s conduct in a business or profession. Well, I’m not really convinced that Clemens attempts to prove McNamee a liar would necessarily adversely effect McNamee in his profession (I mean, he did just turn in half of baseball to George Mitchell), but for the sake of argument, we’ll go with it. The Mitchell Report is a matter of public concern, so McNamee would also have to prove falsity of the statement (which may be difficult as it seems to just be Clemens’ word against McNamee’s). Finally, McNamee would have to prove fault on the part of Clemens (since fault would be easy to prove under any standard, if McNamee was actually able to prove all of the other elements of defamation, I won’t bother going into the details).
In the end does Roger Clemens have to worry about a defamation lawsuit? Eh, I doubt it. I’m sure that Clemens has an above average legal team, and McNamee would have a shaky, defamation suit, at best. He apparently doesn’t even have any hard evidence implicating Clemens; he only has his word that he gave to George Mitchell. So, I would say that Clemens can “deny away” on 60 minutes. If I was Mike Wallace, my only question would be, “What took so long?”
Sports Agent Blog: Can the Rocket Sue For libel?
New York Times: Clemens Interview Could Lead to Lawsuit
Update: Clemens is saying that the injections he received were lidocaine and B-12
This entry was posted on Thursday, January 3rd, 2008 at 9:15 am and is filed under Baseball. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.
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It will be fun watching Roger give his “testimony” but the court of public opinion already has cast a fair amount of ballots and in the end it really doesn’t matter what he says now or in the future to most people, unless he’s giving a legal deposition or testifying under oath. I think even the most avid Clemens supporter has to believe his length of service to MLB was not just God-given. I don’t believe it would serve either party to sue, regardless of what’s said from here on out.
I like your detailed examination of whether the Clemens interview can give McNamee enough ammunition for a credible defamation suit, and I agree with your conclusion. McNamee’s camp made the defamation threat to make their guy look more credible. It’s much more likely that the Clemens/McNamee controversy will play out in the media and not in court. At least that’s the angle I was interested in when I wrote about Clemens’ media strategy. If you’d like another take on the issue, I blogged at http://www.beaupre.com/blog/index.cfm/2008/1/3/The-Rockets-steady-glare.