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.”