list credit card numbers names cvs prepaid credit card does credit card debt settlement affect my credit score how soon to apply for credit cards after bankruptcy barclay us credit card login can pay my taxes credit card turbotax amazon credit card canada review pay your american airlines credit card paying credit card late new credit cards for bad credit unsecured get abc warehouse credit card cell phone cover with credit card holder red mango credit card citi credit card one time use how do i apply for a credit card chase circuit city credit card log low interest rate credit cards ontario canada how to redeem air miles on hsbc credit card how does credit card work credit card with the best cash rewards pink leather credit card holder statute of limitations new york credit card debt hbc credit card balance online discover credit cards for fair credit credit card mileage bonuses suntrust bank credit card application credit card numbers starting 5466 pay credit card bill online icici hdfc aspire credit card payment card numbers and security codes that work test credit invalid free vector credit card icons ge capital credit card services exxon credit card payment advanta business credit cards pay off car loan vs credit card card guard rfid blocking aluminum credit card holder credit card delinquency definition best credit card for rebuilding bad credit how to stop credit card offers from coming in the mail stop junk mail credit card applications how to get credit cards with high limits us bank visa credit card flexperks credit card payment gateway how to answer your credit card debt lawsuit and win fast will pay off my credit card how do i cancel chase credit card does us bank have secured credit cards acm auto credit card organizer manager holder wallet kohls charge credit card small business credit card cash rewards low interest business credit cards budget car rental debit card credit check overseas credit card class action make apple account without giving credit card details racetrac credit card online credit card reader home use travel credit card canada quik trip credit card application credit cards issued different banks india credit card mobile payment secured credit card companies activate bofa credit card online ielts credit card payment form credit cards from retail stores virgin american express credit card benefits bancorpsouth credit card login what are the advantages and disadvantages of using debit and credit cards which credit card is best for balance transfer how to pay irs tax bill with credit card restaurant credit card processing fees first credit cards uk fixed rate credit cards for balance transfers credit cards with frequent flyer miles rewards hsbc online banking credit card payment samba bank credit cards dubai best air mile credit card canada hdfc credit card balance transfer rates offshore credit card approval credit cards how do i stop credit card offers compare miles rewards credit cards letters to credit card companies uk visa credit card car rental insurance best united airlines credit cards lost chase slate credit card how do you change credit card info on psn iphone square credit card hack safe credit card online 5/3 optimum credit card login the best unsecured credit cards for bad credit american aadvantage credit card 75000 student credit cards to help build credit hsbc hp credit card login what is credit card processing job standard chartered credit card bill payment first premier bank platinum credit card ge money low rate credit card login chase slate credit card any good can u pay off a credit card with another credit card make credit card payment online bank america hdfc credit cards status credit cards with no credit history for students debt consolidation credit card debt credit card applications for bad credit canada list of banks offering credit cards in india gemoneybank credit cards citibank college credit card credit card finder au balance transfer cards ps3 credit card details leaked pottery barn kids credit card promotion make premier credit card payment top travel credit cards online credit card services sturbridge ma pay ally car payment credit card american express credit card account sign in paying off hsbc credit card which points credit card is best best 0 apr purchase credit cards first financial credit card application can you use your walmart credit card at the vision center amex platinum credit card india does sephora accept jcpenney credit cards kay jewelers credit card phone number credit card reader for windows phone 7 credit card payments applied highest interest world capital bank credit cards canceling credit cards hurt credit score negotiating credit card debt yourself 2010 capital one credit card minimum payment good credit cards young people good credit requirements applying credit card rcbc visa hilton hhonors credit card login credit card dispute charge time limit free credit card logos images apply for apple credit card juniper credit card terminals not pci compliant using credit card machine on cell phone does pnc bank offer secured credit cards potterybarn kids credit card login make apple id without giving credit card number which are the best credit cards to use abroad cash back credit card gasoline does canceling credit cards hurt credit how do you get a credit card if you have no credit can i pay off my credit card with another credit card getting a co-signer for a credit card credit card regulations 2010 uk sears credit card online pay bill credit card letter opener prepaid credit card improve credit rating how to find routing number on credit card create your own visa credit card credit card reader/writer usb living social credit card stolen credit cards that rebuild credit score bank rate credit card rewards apply credit card online international credit card address verification credit card companies marketing college students costco merchant credit card processing services easy store credit cards to get approved for 2012 picture credit card reader accept credit card payments windows mobile hsbc credit card internet banking registration card usb flash drive price products credit hulu plus no credit card pay taxi credit card singapore online hdfc credit card registration form mobil exxon credit card 2 cash back credit card no annual fee chase credit card payment customer service credit card processing companies reviews credit card processing app iphone canada credit card signup bonus miles hong leong credit card easy payment plan best credit cards for international students credit card processing digital phone line wellsfargo credit card online payment schwab bank credit card bank of america silver plated credit card holder union workers credit card offer tinker federal credit union secured credit cards saga platinum credit card line hsbc india credit card rewards program online application for credit card of axis bank avenue credit card statement liberty bank credit card services gold credit card uk usc credit union credit card login international travel credit card chase good credit card earn miles mileage plus credit card rental car insurance icici credit card bill payment through icici net banking emblem credit card verification code numbers on credit card aspire credit card account login visa premier credit card purchase prepaid credit card usa exxon mobil credit card pay on line banco popular credit cards puerto rico difference between best buy credit cards no interest credit cards 24 months purchases virgin credit card contact details south africa can you add prepaid credit card paypal credit card reform act 2009 wikipedia list banks provide credit card india capital one login credit card how to get a credit card with no credit history yahoo average credit card debt per person usa low rate credit cards pay credit card bill halifax online lowest interest rate credit card uk make dcu credit card payment pay your ann taylor loft credit card capital one bank credit card mailing address wells fargo platinum credit card hello kitty credit card backgrounds m and t credit card application apply jcpenney credit card online ivy tech credit card what is a pre approved credit card paying credit cards with credit cards credit card security code invalid on itunes reestablish credit card canada hsbc credit card offers 2011 india paying off your credit card early best credit card college student have type of credit card american express qantas credit card travel insurance good credit card apr bmw credit card center paypal plus credit card application national city credit card member services credit card issuer identifier links of london leather credit card case is there government help with credit card debt stay at home credit card rule king size credit card application start your own prepaid credit card business why was my credit card application denied southwest skymiles credit card how can i apply for a sams club credit card can you pay old navy credit card in store non profit credit card debt solutions great credit building cards best credit cards with cash rebates can pay kohls credit card online student credit card debt high prestige credit cards unsecured credit cards rebuild your credit avoid aer lingus credit card charges opt out credit card offer mailings debt consolidation loans credit card debt will applying for a secured credit card hurt my credit personal loan for credit card consolidation transfer loan interest free credit card best cash back credit cards clark howard credit card balance transfer fee 0 pay my credit card bill with paypal what is the best united credit card pay steinmart credit card meaning csv credit card barclays business credit card login chase united visa credit card free lounge access credit card singapore charles schwab visa credit card log check icici bank credit card statement online free credit card terminal software credit card interchange fees gao accepting credit card payments through iphone consolidate my credit card debt without affecting my credit union plus credit card payment phone number citibank credit card settlement process in india best credit card offers for bad credit credit card generator 2011 - valid cvv number what is the issue number on a solo credit card credit card processing form commerce bank credit card bill pay bank of america business credit card no personal guarantee british airways credit card offer uk how to get a black american express credit card pc richard and son credit card payment online federal government credit card counseling sallie mae credit card usage study chase visa credit cards walmart credit cards make payment contact lowes credit card services gas credit cards good idea british airways miles credit card offer credit cards payment online how to change credit card on iphone best credit cards for college grads shell credit card payment online com national city bank credit card login credit card capital one review hsbc indonesia credit card newsletter first saving credit card website chase credit card sapphire preferred does maxing out credit card hurt credit score african bank credit card application transfer credit card debt to loan paypal confirm your credit or debit card number can credit cards garnish wages california credit card benefits comparison hsbc online credit card application interest free credit card transfer with no transfer fees best hotel reward credit card 2011 0 balance transfer credit card deals fat wallet schwab credit card credit card declined on amazon chevron credit card online 100 guaranteed approval credit cards for bad credit credit card rewards comparison uk 0 business credit cards capital one prepaid credit card reviews iphone 5 cases with credit card storage best secured credit cards for poor credit credit cards rate reduction hdfc bank credit cards payment hp credit card processing credit card cash advances at banks generate a credit card number from paypal home depot consumer credit card account hilton credit card uk mbna credit card ppi complaints address best buy credit card bill pay hsbc pay credit card online citibank first premier credit card log in access chase credit card customer services phone number generate credit card numbers online with cvv chase credit card continental american express currency exchange credit card asiana airline credit card compare iphone credit card apps credit card rate increases 2009 best zero cash advance credit cards chase credit card apply phone number credit card with best benefits in india bank of america zero percent interest credit card sam ash credit card pay online apply bloomingdale credit card benefits of debit cards vs credit cards credit card offers 0 apr balance transfers no transfer fee pier 1 imports credit card how to pay citibank credit card bill using axs machine southwest airlines rapid rewards business credit card from chase first bank of delaware credit card phone number do you need a bank account for a prepaid credit card barclays visa credit card login does achieve card report credit bureau us airways credit card no annual fee anz overseas credit card charges apply for victoria secret credit card credit card accountability responsibility disclosure act 2009 outlawed credit card lock pick best gas card credit card business credit card american airlines small business credit cards no credit check mastercard secured credit card canada american express credit card uk login citibank credit card advance cash need pay walmart credit card bill credit cards offer air miles office depot online credit card payments foreign credit cards in japan prestige credit cards uk huntington credit card log phone number for chase credit card application credit card sized usb flash drive ultra visa credit card payment service spirit airlines credit card customer service phone number credit card problems in india cash from credit card without interest victoria secret credit card payment in store credit card declined but still charged do visa debit cards build credit southwest credit card offers wachovia credit card login icici bank credit card payment options furniture credit cards approved financing credit card number length maximum chase credit card cash advances jcpenney rewards credit card lowering credit card interest rates 2008 advantages of using credit cards online is 5000 in credit card debt bad guaranteed approval credit cards with $10000 limits for bad credit best credit card get flight miles nfl bengals barclays bank credit card login 0 interest credit cards halifax song-beverly credit card act wiki amazon credit card benefits fastest way pay down credit card debt what is a good first credit card hello kitty prepaid credit card standard chartered online payment credit cards india square credit card reader credit card surcharge regulations credit card debt lawyer letter register credit card hdfc site business credit cards 0 interest 12 months blank credit card order form what credit cards are offering balance transfers at 0 do prepaid credit cards work paypal is the amazon credit card good or bad fossil credit card holder money clip student no credit credit cards hsbc best buy credit card + telephone number free online credit score no credit card needed worst credit card offers reclaim credit card repayment cover iphone 4 credit card reader reviews cancel lloyds tsb credit card payment protection cover best ways cut credit card debt capital one venture credit card application credit card billing address wrong first premier bank credit cards for people with bad credit secured credit cards capital one the best store credit cards to have should i pay off my credit card and close the account southwest rewards credit card free flight best prepaid credit card online shopping credit card account login new chase freedom balance transfer credit card bank rakyat best interest rates for credit cards in canada instant online credit card approval canada chase united plus credit card purchase credit card reader amazon credit card bank of america charge free credit cards abroad travel rewards credit cards 2012 bank america business credit card services credit card services telemarketing calls credit scores without credit card needed cancel barclays credit card india afscme credit card payment applying for store credit cards online top credit cards with frequent flyer miles store cards for people with poor credit citizens bank credit card login rbs credit card imprint machines illegal can i pay a credit card with a credit card credit card bonus mile offers credit card template illustrator credit card debt relief companies reviews marshalls tj maxx home goods credit card why does apple need my credit card phonenumber for free apps walmart payment online credit card bank of america - us airways visa signature credit card secured credit cards no deposit the best secured credit card credit cards below 600 credit score orchard bank credit card pay bill online toll free number pnb global credit card mobil credit cards login chase bank credit card for students small retail stores that offer credit cards citibank indian oil credit card offers number digits diners club credit card citibank credit card bill payment cheque singapore citibank credit cards malaysia calculate monthly interest payment on credit card most popular credit cards in australia credit card cost to merchants how to make credit card primary account on paypal real credit card numbers work 2012 hdfc credit card rewards points bank america visa signature credit card worldpoints rewards get debt relief credit cards can pay my bill me later credit card amazon store credit card make payment consumer rights credit card debt what are the major banks that offer credit cards in the philippines verizon credit card phone credit card default rate statistics free credit score no credit card chase visa customer credit card services do student credit cards build credit credit report without debit card online debit and credit card processing first national bank credit card review first bank of delaware credit card mailing address what is the best credit card with the lowest apr tire credit card for bad credit pay rent with credit card best place apply first credit card total visa credit card mid america bank trust better pay off credit cards pay down kotak mahindra bank credit card apply priority club credit card 80 000 points is it bad for your credit to cancel a credit card no fee credit card transfer how do i change my credit card on me amazon account best credit card purchases abroad apply for visa credit card online pay boa credit card phone thomas cook credit card ppi claims credit card numbers use websites credit card search canada how to get a credit card with bad credit and no job
Home All Articles The Clemens Defamation Lawsuit: Proving the Case

Like Shoot to Thrill - An AC/DC Tribute on Facebook!

An authentic tribute of AC/DC that covers the best of the Bon Scott era and the best of Brian Johnson's material

Who's Online?

We have 524 guests online

Atom RSS

The Clemens Defamation Lawsuit: Proving the Case PDF Print E-mail
User Rating: / 16
PoorBest 
Articles & Opinion
Written by Patrick K. Thornton   
Wednesday, 09 January 2008 07:03

A Biz of Baseball OriginalContrary to what most legal experts believed, Roger Clemens has now filed a defamation lawsuit against his former trainer and friend Brian McNamee.  Lawyers for both sides had been posturing for weeks with McNamee’s lawyers stating several times that McNamee was actually contemplating suing Clemens for defamation.  McNamee’s lawyers have already indicated they will object to jurisdiction in the recent lawsuit filed by Clemens and will attempt to move the case to federal court in Brooklyn.  Where the trial is actually held could prove the deciding factor if the case ever makes it to a jury.

Clemens has repeatedly denied steroid use.  He appeared on 60 Minutes the same day the lawsuit was filed and denied that he has ever used steroids.  The next day he held a press conference where he once again angrily denied any steroid use.  Clemens’s preemptive act of filing a defamation lawsuit has clearly shown he is not going to sit idly by and wait for this matter to resolve itself. He clearly drew a line in the sand when he filed the lawsuit.  McNamee will now have to answer the Clemens lawsuit and will most likely fill a counter-claim against Clemens alleging Clemens defamed him.  Once the parties have filed the initial pleadings McNamee’s lawyer will attempt to have the case moved to New York to be heard by a New York jury.  The discovery phase of the lawsuit should produce some interesting results.  Both parties to the litigation will have to give a deposition which is sworn testimony but not in the presence of a jury or judge.  Deposition testimony is treated just as the same if the witness is testifying in front of a judge or jury.  Clemens will be questioned by the lawyers for McNamee and Clemens’s lawyers will question McNamee.  Both parties to the lawsuit will certainly be subject to hours of intense questioning by opposing lawyers in the lawsuit.   

A trial may be more than two years away and they are many possible land mines for both parties along the way. Litigation always has surprises for the parties in the form of a new found witness or document.  Whatever court the case ends up in will certainly require the parties to attempt to mediate their dispute and try to settle the case.  Most plaintiffs in a defamation case seek damages to recover for loss of reputation but it is uncertain and probably doubtful if McNamee is a collectable defendant if the matter ever ended in a verdict for Clemens for money damages.  If McNamee files a counter-claim and a jury finds in his favor then he might be able to collect damages from Clemens.  Other likely deponents during discovery could include former Yankees manager Joe Torre, Andy Pettitte, former Clemens’s teammates and anyone who may have knowledge about whether Clemens allegedly used steroids.  Former Senator George Mitchell might even be required to give a deposition if the matter is not settled prior to the discovery phase of the lawsuit. 

(Select Read More to see the rest of this original article on The Biz of Baseball)

Richard Emery, one of McNamee’s lawyers, has clearly stated he thinks the lawsuit has no merit:

"I think it's dismissible on its face. I think it's a press release for Clemens and his career.  The case is shoddy at best. The prosecutors acted completely professionally in this case…”

It is strategic that Clemens filed the lawsuit on the same day he appeared on 60 Minutes.  Filing a lawsuit does not necessarily mean however, that he will pursue it to a jury verdict.  He could always agree to dismiss the lawsuit at later date or the parties could settle their dispute and agree that the terms of any agreement be kept confidential.  Interestedly, Clemens did not sue Major League Baseball only McNamee.  He might have argued that MLB published the report and therefore, damaged his reputation as well.  Maybe Clemens’s thought better of it.  Clemens’s lawyer Rusty Hardin was very clear in stating in the press conference on January 7, 2007 that the lawsuit in no way reflected poorly on George Mitchell or his investigation.  He stated several times that the former Senator’s credibility and character was impeccable. 

The fourteen page lawsuit alleges that McNamee’s statements that he injected Clements with steroids are “false and defamatory per se because they are not true, and they injured Clemens’s reputation and exposed him to public hatred, contempt, ridicule, and financial injury.  McNamee made the allegations with actual malice, knowing they were false.”  (Plaintiff’s Petition Paragraph 34). 

The Clemens lawsuit has summarily stated:

“Though McNamee’s allegations comprise only eight pages of a 409-page report, they captured the attention of the nation, fueled rampant speculation, and irreparably tainted the reputation of one of baseball’s hardest working and most talented pitchers.” (Plaintiff's Petition Paragraph 7).

The lawsuit lists fifteen alleged statements made by McNamee to federal investigators all of which Clements claims are “untrue and defamatory.”  The lawsuit alleges that during an interrogation by federal law enforcement authorities in June 2007, “McNamee told others that he repeatedly denied that Clemens had used steroids or HGH.”  (Plaintiff's Petition Paragraph 26).  The lawsuit further alleges that McNamee was facing the threat of federal prosecution so he agreed to speak with the Mitchell Commission.  He then stated he injected Clemens with steroids.

Interestedly, Clemens also notes in his lawsuit that McNamee was once a suspect in a rape investigation in Florida.  (Plaintiff’s Petition Paragraph 20). This will certainly present itself as a credibility problem for McNamee in the Clemens lawsuit.  Lawyers for Clemens will clearly want to note that McNamee has difficulty telling the truth during that investigation. Clemens says he stopped training with McNamee after the 2001 season when he learned McNamee was a suspect.  No formal charges were ever brought against McNamee although Clemens alleged in his lawsuit that McNamee lied to the police in Florida and “refused their requests for evidence in a situation when he denied any wrong-doing…” (Plaintiff’s Petition Paragraph 20).  Sports Illustrated has reported that the St. Petersburg Police has stated McNamee lied to them during the rape investigation.  Sports Illustrated, Police say McNamee lied in 2001, January 8, 2008.  Clemens states that McNamee’s dismissal from the Yankees organization and from Clemens as well left him “embittered”.  (Plaintiff’s Petition Paragraph 20).  Clemens further alleges in his lawsuit that although “McNamee’s explanation was totally at odds with the conclusion of the police officers conducts the investigation,” {sic} Clemens did not know any of these facts so he re-hired McNamee once again. (Plaintiff’s Petition Paragraph 21).

The tort of defamation consists of both libel, defamation by words written or print, or slander, communication by spoken words.  Defamation of character involves wrongfully hurting a person’s good reputation.  The law does improve a general duty on all persons to refrain from making false, defamatory statement of facts about others.  In Texas, where the case is currently pending, to prove a case for defamation a plaintiff must prove:

  1. That the defendant published a statement.  In this case publication would mean communication to a person other than the defamed party.
  2. That the statement was defamatory.
  3. That the defendant acted with “actual malice.”

An individual who is deemed a “public figure” under the law must prove “actual malice” to prevail in a defamation lawsuit.  Public figures generally have some access to a public medium for responding to defeat false statements; private individuals generally do not have such access.  Clemens would most certainly be considered a public figure under the law. To prevail he will have to prove that McNamee “acted with a knowledge of falsity or with a high degree of awareness of probable falsity of the publication at issue”, to prevail on his claim.  New York Times, Inc v. Isaacks, 146 S.W. 3d 144, 165 (Tex. 2004).  It will be a difficult burden for Clemens to prove.  McNamee’s defense will be that he is telling the truth.  If a jury believed he was telling the truth then Clemens’s lawsuit against him will fail. 

In a rather odd twist between the two old friends and new litigants, a seventeen minute phone conversation occurred between Clemens and McNamee on Friday, January 4, 2007.  During the rather emotional conversation McNamee asks Clemens several times “what do you want me to do.”  Clemens noted during the guarded conversation between the two that he just wanted the truth to come out.  Clemens’s lawyers were in the room during the conversation and he was being very careful not to tell McNamee what to say. 

The Mitchell Report was a bombshell and linked many baseball stars to steroid use.  Some stepped forward and admitted use including Clemens’s good friend and teammate Andy Pettitte.  Clemens chose to take the offensive and file a lawsuit.  He has demanded he is innocent and says he should get the benefit of the doubt.  Clemens has now become the face of the Mitchell Report.  Add to the Mitchell Report and the lawsuit a congressional investigation.  Clemens has said he will voluntarily testify in front of Congress.  Andy Pettitte’s lawyer, Jay Reisinger recently said it is “premature” to say whether Pettitte will testify in front of Congress.  McNamee has also said he will testify before Congress as well.

Where does this existing lawsuit go from here?  Could the lawsuit actually end in a jury trial with a parade of star witnesses such as Clemens, Pettitte, George Mitchell, and Barry Bonds testifying?  It is highly improbable that the lawyers or the parties to the lawsuit desire such an outcome.  Lawsuits however have ways of getting a life of their own and when pride becomes a factor for the parties or the lawyers they tend to drag on with no resolution.  The next move is McNamee’s.  It is certainly a tormented dilemma for two very close friends who are now locked in a legal battle in the midst of one of baseball’s ugliest scandals.


Patrick K. Thornton is a Professor at Houston Baptist University where he is the faculty advisor for the MBA in Sports Management.  He also teaches “Baseball and the Law” at the University of Houston Law School and Sports Law at Rice University and South Texas College of Law.
 
 
Banner

Poll

Should MLB Force Jeffery Loria to Sell the Marlins?