"Baseball, Steroids, and Personal Reputations"
by Ronald J. Rychlak - February 20, 2008
Reprinted with permission.
The Mitchell Report, Major League Baseball's report on performance-enhancing drugs, makes clear that steroids and other banned substances (primarily human growth hormone, or HGH) have been widely used in the sport over the past decade. MLB and the Players' Association have shamefully turned a blind eye to this developing problem that every serious fan long knew about. Many people were, however, quite surprised by one name that appeared on the list of accused users: Roger Clemens.
Clemens is a baseball icon, with more wins (354) than any other living pitcher. Until now, he also had the reputation of being a solid citizen, a guy who got extra years and extra wins out of his aging body by working harder than the other players. That reputation, as well as his future in baseball, is now in jeopardy. If he used banned substances (he never tested positive), baseball might find its winningest living pitcher (Clemens) and its all-time home-run king (Barry Bonds, also accused of using steroids) kept out of the Hall of Fame, just like all-time hit leader Pete Rose (for gambling on baseball).
But let's play "what if" for a moment. What if "Roger the Rocket" were sitting at his home in Texas, never having used enhancement drugs, when he heard about the charges? What could he do? How could he reclaim his reputation? The assertions in the Mitchell Report, you see, have not really been tested. Clemens and his attorneys have not had the chance to cross-examine the witnesses. Legally speaking, the Mitchell Report is just hearsay.
One way to test the evidence would be to sue MLB. Of course, it's extremely difficult for someone like Clemens to win a case like that. In order for a public figure to win a defamation lawsuit, he or she has to prove "actual malice" by the speaker. In other words, the speaker must have made the statement either knowing or being reckless about its truthfulness, regardless of the harm it would cause.
Clemens would have virtually no chance of winning a suit against MLB. Right or wrong, there is evidence to support the statements contained in the Mitchell Report; it is based on the testimony of Clemens's personal trainer, Brian McNamee, who claims that he personally injected Clemens with steroids in 1998, 2000, and 2001. McNamee might be lying, but may not be. Either way, there is no reason to think that MLB knew McNamee's statements were false.
Clemens has been trying many other ways to show that he never used performance-enhancing drugs: testifying before Congress (the propriety of that hearing might merit another column), producing a statistical study of his career (designed to show that he did not have an abnormally good season after the alleged drug use), posting an online video denial, making an appearance on 60 Minutes, and releasing a recorded phone conversation between himself and McNamee. The problem is that none of the evidence Clemens has brought forth really proves his innocence. As he told Mike Wallace, it is difficult to "prove a negative."
Clemens (presumably with good legal advice) determined that the best shot to clear his name was in a defamation lawsuit against McNamee. Accordingly, he had his lawyers file suit. However, even if McNamee acted with actual malice, it won't be an easy case to win. Clemens not only has to prove that he did not use steroids; he has to prove that McNamee knew that he did not use the drugs. As the plaintiff in the case, Clemens must carry the burden of proof. That means that if it boils down to a swearing contest between Clemens and McNamee, Clemens loses.
Given this challenge, Clemens took a pretty significant risk in taking that matter to court. Denials to the press are not legally actionable. Now, however, Clemens will be asked about his steroid use under oath in court proceedings. A false statement there would mean the crime of perjury.
Perhaps more importantly, by taking this matter to court, Clemens has given McNamee the power of subpoena. McNamee can call people to court and require them to testify under oath. Of course, Clemens has more money than McNamee, and that can make a difference in litigation. The Rocket also filed his case in Houston – his home field, so to speak. Still, if Clemens took the banned substances (as former teammate Andy Pettitte has said), he's walking on very thin ice.
Legal considerations aside, it doesn't take much to smear a reputation, but requires herculean effort to overcome even a false allegation. Unfortunately, even in court, charges like that are very hard to disprove.
Ronald J. Rychlak is the associate dean and MDLA Professor of Law at the University of Mississippi School of Law. He is the author of Hitler, the War, and the Pope (2000) and Righteous Gentiles (2005).
