January 7, 2008

Clemens Sues McNamee - The Law and the Prognosis; McNamee Responds to CNNSI

Roger Clemens followed through on this prior threats and filed suit against former trainer and steroid accuser Brian McNamee. You can read the suit here, though it is rather formulaic (like most complaints) and adds little to the discussion except from a procedural standpoint, which will be discussed below.

Roger has sued McNamee for defamation of character, specifically slander, based upon statements made to the Mitchell Commission and later repeated in the Mitchell Report. Roger alleges that McNamee made false statements which damaged his reputation.

In order to succeed on a slander claim, the plaintiff must prove the following:

1) A false statement about the plaintiff
2) Made to third parties ("published")
3) Damaging the reputation of the plaintiff.

These are the elements under Texas state law, which is the law applicable to this suit. Unfortunately for Clemens, there is an additional element mandated by the United States Constitution. The First Amendment, which in part protects free speech, prohibits restraints on public discourse. Roger Clemens is a public figure and abuse of performance-enhancing drugs is a matter of public concern. Thus, the Supreme Court has concluded that a public figure must also prove that the false statement was made with actual malice.

It should be noted that the burden is on Clemens to prove (by a preponderance of the evidence, or 50.1% certainty) each element. That necessarily means the burden is on Clemens to prove that McNamee's statements were false. This is most likely why Clemens played a recorded telephone conversation from last Friday between him and McNamee. [Lawyer note: Don't record phone calls without speaking to a lawyer. Doing so is illegal in Maryland and other states.] McNamee does not re-affirm his statements or recant them, but he does seem especially apologetic to Clemens.

Now (literally published four mintes ago), McNamee has spoken to Jon Heyman of CNNSI. McNamee's account reeks of honesty. Heyman reports that he clearly admires Clemens. McNamee sticks to his story, and stated that B-12 and painkillers would be injected in the arm, not the butt. He implied that he didn't inject those either.

So, what happens next? The suit was filed in Harris County, Texas, in state court. Federal courts have jurisdiction over certain subject matters (federal laws, constitutional claims, maritime claims). They also have jurisdiction over civil matters involving citizens of two different states so long as the amount in controversy exceeds $75,000. This is known as diversity jurisdiction, and diversity is present here.

McNamee's attorneys will file their answer (and possibly a countersuit) and then "remove" the case from state court to federal court in Texas. From there, they likely will try to transfer the case to the Eastern District of New York, encompassing New York City. This is in the discretion of the federal court, but McNamee might win based on the fact that the defendant lives in New York, Clemens has extensive ties to New York, and certain acts took place in New York.

Once the case is settled in a venue, the process will begin. Of course, the process is almost certainly just for show. Absent an admission by McNamee, it is going to be nearly impossible to prove that something did NOT happen over half a decade ago. There will be depositions and motions and eventually an "undisclosed settlement".
Houston attorney David Rassin makes an excellent point:
In a defamation case like this one, a defendant's best defense is often a "truth" defense. "It's not defamation; it's the truth." McNamee's truth defense would be to prove that Clemens used steroids. In other words, Clemens is forcing McNamee prove that Clemens cheated. It's McNamee's only way out. If McNamee was at all reluctant to bring down his friend, Clemens's lawsuit now leaves him no choice. In a fight to the death, people hit a lot harder, and Clemens is forcing McNamee to kill or be killed. Way to light a fire, Rocket.

What I find more interesting is that we're about to see a fight to the death between two trapped rats, at least one of whom we know is a cheater. Let's see who cheats first...

6 Responses:

Dewey Hammond said...

[Lawyer note: Don't record phone calls without speaking to a lawyer. Doing so is illegal in Maryland and other states.]

Did McNamee know his call was being recorded?

J-Red said...

Recording calls is legal in Texas, according to my Houston-area lawyer friend. I don't know whether it is or not in New York, or where McNamee was during the conversation.

"ben" said...

I did not hear this recorded phone call, but McNamee did not reaffirm or recant the statements, I'm not sure what the point of Clemens playing it was. What are we supposed to assume about McNamee being apologetic? I take it to mean that he is sorry he had to sell his friend out to save his own ass, but that doesn't mean what he said is false.

Clemens is turning into Pete Rose real fast. I'm looking forward to that admission of guilt in 20 years.

J-Red said...

It might not take 20 years. As I've said before, the Feds might not have let McNamee provide ALL his evidence to Mitchell due to the ongoing prosecution. If McNamee has a smoking gun, Roger (and by proxy his attorney) will be ruined.

I looked it up. Texas and New York are one-party consent states. Since Roger consented to recording his own phone call, it's legal.

Dewey Hammond said...

Kudos to Marion Jones and Andy Pettite for being honest, despite the consequences. Too bad more athletes refuse to do the same.

Is there any chance Roger goes to jail for this?

J-Red said...

The only chance Roger has of going to jail for steroid use is if he eventually perjures himself while giving sworn testimony. For the steroids themselves, I can't imagine there is enough proof out there.

If you're wondering why Rafael Palmeiro wasn't charged with perjury, remember that his positive test in no way proved that he had taken anything PRIOR to his congressional testimony. I don't recall whether that testimony was even under oath.

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