If the Mitchell steroid report is wrong, Where are the lawsuits?

Kevin James
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Posted: Dec 20, 2007 7:41 PM
If the Mitchell steroid report is wrong, Where are the lawsuits?

Actions speak louder than words, and legal actions often speak loudest of all – which is why the absence of lawsuits from certain major league baseball players is louder than the fireworks after a Fourth of July game.

On Thursday, December 13, the Mitchell Report was finally released, the result of a 20-month investigation by former Maine Senator George J. Mitchell (also a former federal judge) into the alleged use of performance-enhancing drugs by Major League Baseball players. The revelations – particularly the list of more than 80 names of present and former players who have been implicated in the scandal – were pounced on by journalists and bloggers looking for an excuse to ignore another dull Democrat primary debate in Iowa.

The Mitchell Report was worth the wait to many, naming big names. Roger Clemens. Eric Gagne. Paul Lo Duca. Andy Pettitte. And, of course, Barry Bonds, the only man to go through puberty at age 35!

These are not faceless journeymen or minor leaguers gulping their cups of big league coffee (although plenty of those were mentioned in the report). These are the pros whose names sell tickets and ad time. These are the men with tens of millions of dollars in salary, endorsements and personal appearance fees to lose if their names become sullied by false accusations of drug abuse and cheating.

Fortunately, our legal system provides a method of clearing a person’s name. If someone makes a false statement in public which causes injury or damage to the good reputation of another, the injured person can sue for defamation. If someone defames you in writing, it’s called libel, and if someone defames you by talking, it’s called slander. Whatever the terminology, the purpose of the law is to protect your reputation from false statements.

Our legal system has recognized this right for more than 1,000 years. Back in medieval England, a bad reputation in a tiny village could have devastating economic and social consequences, so the law allowed a man to set the record straight and reclaim his standing in the community.

Yet, as I finish writing this column late on the afternoon of Monday, December 17 (after the courts have closed in California), my research has confirmed that not one of the professional athletes named in the Mitchell Report has filed a defamation lawsuit (and the press has reported on none).

We live in a society where people sue over spilled coffee and torn pants, yet millionaires experiencing the worst publicity of their lives are contenting themselves with statements through representatives or with media silence, not with a visit to the courthouse. Makes you wonder, doesn’t it?

There is nothing about the Mitchell Report which protects its author from a defamation claim. It’s not a government document. It’s not being filed with a judge in the course of litigation. It’s not a speech made by a congressman from the floor of the House. If George Mitchell knew that statements in the report were false or if he were reckless in his regard for the truth, even public figures with Most Valuable Player titles and World Series rings could successfully sue.

In my opinion (and opinions usually cannot be defamatory), there’s one overriding consideration which would protect Mitchell, his law firm and Major League Baseball from being served with a summons: the TRUTH!!

Under U.S. law, truth is an absolute defense to a defamation claim. If a person prints something unsavory about you that’s true, a judge will look at you sternly and say, “Case dismissed.”

In my professional judgment (based on my years as an Assistant U.S. Attorney and a litigator in private practice), the cases laid out by the Mitchell Report are good but not great. (I am ignoring statutes of limitation and other procedural matters which are more boring than a Democrat debate.)

Much of the evidence was obtained from two witnesses, Kirk Radomski, a former New York Mets clubhouse employee, and Brian McNamee, a former New York Yankees bullpen catcher and batting practice pitcher. Both men provided evidence under agreements with the Justice Department, Radomski in return for a lenient sentencing recommendation on his guilty pleas to steroid distribution and money laundering and McNamee in return for immunity.

Men such as these are not ideal witnesses, and a good lawyer for the defense could impeach their credibility. One of the unpleasant realities of the criminal justice system is that the people who know the most about drug dealing are the drug dealers themselves, and sometimes you have to cut a deal with a bad person to build a case. Juries, understandably, are reluctant to believe such people.

The witnesses’ stories were supported by documentary evidence that the defense would argue is ambiguous at best. The prosecution, however, would paint a much more damning picture of what the documents depict. Appendix D of the Mitchell Report produced 91 personal checks or money orders which allegedly facilitated the purchase of banned substances. The report also reprinted airbills from courier services allegedly used for shipment. These documents could be incriminating, or they could be innocuous. In other words, if a player felt that he was falsely accused by the Mitchell Report of violating federal and state controlled substance laws he could file a defamation claim and challenge Mitchell’s evidence.

Yet not one of the named players has done so, and I am predicting that not one will. Until they do, denials through lawyers and spokespeople ring hollow!

I wonder how many players called their lawyers over the last few days and heard the phrase “truth is an absolute defense to a defamation claim.”