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Defamation and Clearing Your Name

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

One constant question in the wake of the Mitchell Report has been whether named players could or would sue Mitchell, MLB, or one of the sources--Kirk Radomski or Brian McNamee--in an effort to "clear their names." Such a lawsuit is a risky proposition. First, even if a player could prove the accusations were false, he still might not win if he cannot establish the requisite state of mind. Second, any defamation lawsuit would inevitably turn into a formal judicial inquiry into whether this player did or did not use steroids, with the player bearing the burden of persuading the jury that he did not use performance-enhancing drugs. Both considerations, I have suggested, likely will deter most players from following that course. In fact, Roger Clemens, the only one thus far to make such noise, quickly backed off.

Absent such a lawsuit, the player's best weapon is public proclamations of innocence. The hope is to win a PR battle in the "court of public opinion," helped by the good-will built up with fans, over somewhat dicey characters such as Radomski or McNamee, without having to formally convince a judge or jury that he never used drugs. But that weapon might lead into the courtroom, as well. Clemens will appear on CBS' "60 Minutes" this Sunday, presumably to proclaim that he never used steroids--and thus that McNamee is a liar. McNamee now says he might sue Clemens for defamation if Clemens calls McNamee a liar in the interview. In suing, McNamee would have to prove the statement that Clemens's assertion that McNamee is a liar is false--because Clemens did use steroids.

The point being that a player only can "clear his name" if the issue is fully presented to a court for a finding of fact.

Full post as published by Sports Law Blog on January 03, 2008 (boomark / email).