does it mean anything if clemens and

Does it mean anything if Clemens and Pettitte don't sue?

The multi-sport steroids scandal of 2005-200? has involved a

considerable amount of tea-leaf and between-the-lines reading. For

instance, journalists (and occasionally bloggers) compare "before" and

"after" photos of suspected users to make the case that they are

scientifically enhanced. Mark McGwire--though he never admitted

steroid use--is presumed guilty based on his pleading what has been

called the "fourth and a half amendment" while testifying before

Congress. Barry Bonds's decision to sue the authors of Game of Shadows

for illegally leaking grand jury testimony signaled to some that Bonds

did not want to face a defamation trial where "substantial truth"

would constitute a defense. Some have speculated that Lance

Armstrong's failure to denounce former teammate Floyd Landis even

after Landis was proven a liar signaled that Landis had "the goods"

regarding Armstrong's own possible past use.

Yesterday, in the latest twist on L'Affair du Grimsley (see previous

posts here, here and here), the New York Times reported the list of

names that had earlier been "blacked out" of a report that included

statements attributed to caught-red-handed HGHer Jason Grimsley. Among

the names were some surprises. Pitchers Andy Pettitte, Roger Clemens,

and former MVP Miguel Tejada were named by Grimsley. Pettitte and

Clemens immediately denied the allegations; many have rushed to

Pettitte's and Clemens's defense, although to some, the pitchers'

denials will no doubt ring as hollow as those of Landis or

finger-waggerer Rafael Palmeiro.

Clemens has already threatened legal action "if it affects sponsorship

of his charitable foundation"; so far, no similar threats from

Pettitte or Tejada. But accused steroid users have explored suits

before. Now laugable, Rafael Palmeiro made noises about suing Jose

Canseco after being accused of steroid use. Marion Jones, the most

prominent accused athlete really cleared of steroid use, is also

noteworthy for having filed a defamation suit against her accusers

(and obtained a presumably favorable settlement). Bo Jackson also

filed suit against a newspaper that accused him of steroid use. If

Pettitte and Clemens don't sue, is there anything we can safely

conclude? That is, could we "read" into a failure to sue the kind of

confession we have all read in to McGwire's non-denial?

The answer is no. At first blush the two seem to have an open-and-shut

case for "defamation per se" against Grimsley, assuming Pettitte and

Clemens, as they have claimed, never used steroids. A false statement

concerning another's capacity to adequately perform at his trade or

profession or an allegation of criminal misbehavior involving moral

turpitude are both defamation per se - per se in the sense that the

plaintiff need not show actual damages (i.e., loss of a job, inability

to get into the hall of fame). It is therefore a bit odd that Clemens

threatened legal action only if his charitable foundation is

threatened, since damage would not be a required element for a

defamation per se suit.

The problem for Clemens and Pettitte? First, as public figures, they

can only recover for defamation if the defendant had actual "malice"

or reckless disregard as to the truth of a statement. In addition,

some courts have found an absolute privilege bars defamation suits

regarding statements made to law enforcement officers. So, given that

their suits are likely losers (not to mention that Grimsley will

likely be close to judgment proof after he pays his own legal bills),

it will be hard to read much into a decision not to sue.

-- Posted by Geoffrey Rapp @ 10/02/2006 03:26:00 PM -- Comments (1) --