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A Different View

By Rick Karcher, Michael McCann, Geoffrey Rapp, Greg Skidmore, and Howard Wasserman

Let me disagree with Howard. I think this week is the Super Bowl or should I say World Series of Sports Law. When Roger Clemens faces off against his accusers and testifies before Congress, all of us get to be jurors and render judgment on his guilt or innocence and on the quality of the work of the DLA Piper lawyers who served as prosecutors.

This will not be like the last Congressional hearing which was devoid of any tough questions or hard evidence. The post-Mitchell Report activity of Clemens--whether ill advised or not--has raised the stakes so that his integrity and legacy (read that Hall of Fame nomination) will be on the line this Wednesday.

For the 20 million dollars MLB reportedly spent for the Mitchell Report, it received a product that was, in my view, underwhelming. While it accused 90 or so players of taking currently banned substances, except for Clemens, most were lesser lights or already retired and hardly proved baseball and the free world were so infected by the steroid plague that a Congressional hearing was justified. And the supporting evidence Mitchell and his team gathered was embarrassingly weak, relying on the untested word of two locker room trainers, both of whom had incentive to appease the authorities and name big names.

Now Congress has had time to send out its own investigators armed with the one tool Mitchell did not have, subpoena power. If any corroborating evidence is out there, we should see it Wednesday. Whether it takes the form of documents like medical records or testimony of witnesses such as Pettitte or other confidantes of Clemens, definitive and probative evidence should exist and be available if Clemens did what Mitchell and McNamee claim he did.

What this also means is if no such evidence is produced and we are left with Clemens?s word against McNamee?s, then we should render Clemens innocent of the charges and give him back his good name. Not just because, as he said on 60 Minutes, he deserves it for his years of proving he is one of the great pitchers of all time, but because ?facts are stubborn things? such that if Clemens engaged in this activity he would have left proof of it in some form other than the word of McNamee.

With all the serious issues facing this country, Congress has chosen to conduct this show trial on what I see as a nonissue. So be it. Now either throw strikes or walk off the mound.

Full post as published by Sports Law Blog on February 11, 2008 (boomark / email).