According to reports today, Clemens' attorney, Rusty Hardin, had this to say:
"Roger Clemens did not take steroids, and anybody who says he did had better start looking for a hell of a good lawyer."
Ah, the empty threat. A cornerstone of the legal profession.
Presumably, Mr. Hardin is threatening to bring a defamation suit against anyone who publicly alleges that Roger Clemens used steroids.
The elements of a defamation claim are:
- A false and defamatory statement made against another
- The unprivileged publication/communication of that statement to a third party
- Negligence, if the defamatory matter is of public concern, on the part of the publisher/communicator (like, say, steroid abuse)
- Damage to the plaintiff, though depending on the state allegations of "drug use" are defamation per se and damage need not be proven.
In addition, one will only be held liable for defamation if they are repeating the defamatory statement of another if they knew or should have known that the original statement was false.
So basically, Clemens had better be suing MLB and George Mitchell if he is going to sue anyone at all, and even they can say they had no reason to believe McNamee was lying to them. Everyone else is repeating the allegation based on Mitchell's good faith belief that the allegations are true.blahblblaahblah Rusty "Trombone" Hardin -- The Juicer's Choice!
As if that didn't cripple any possible Clemens case enough, the U.S. Supreme Court applied the First Amendment to defamation cases nationwide that involve a public figure, which can mean a politician or celebrity. In New York Times v. Sullivan, 376 U.S. 254 (1964), the Supreme Court held that the First Amendment protects speech against public figures, and a defamation claim will only be upheld if it can be shown that the statement was made with actual malice against the plaintiff. That means the publisher/communicator must know that statement is false, or make it with reckless disregard for the truth.
All this adds up to what everyone else in the steroids era has already learned. You cannot win these cases. Any lawyer threatening them is essentially threatening just to harass people with litigation, which is borderline malpractice and is certainly against the Code of Professional Conduct for attorneys.
Much like Clemens, his attorney Rusty Hardin is already earning a reputation as a bully.
And let me be the first to say it now that Hardin has gotten his threat out there: Roger Clemens used steroids.
Read here, especially the comments, for analysis at Sports Law Blog on how suing Radomski and McNamee might be a good PR move for one of the players named in the Mitchell Report. Preferably one of the "innocent" ones with no career at stake.
[J-Red is a licensed attorney in Maryland. This blog does not purport to represent legal advice and no attorney-client relationship can be hereby created. Rusty: post a comment and I'll send you my address for service of process.]