brand name mircette online order aldactone online no prescription with a mastercard doxycycline hyclate malaria instructions how long does it take strattera to start working brand levitra sale 100mg online pharmacy health benefits of aspirin topamax where to buy sale tretinoin 0,025 donepeil cardizem in the uk buy zyban patch cheap amaryllis bulbs uk buy vpxl online usa online mexican pharmacy hydrocodone does propecia work on receding hairlines billig clozaril online kaufen how to import dramamine realo discount drugs kinston nc what is zestoretic pills used for canadian drug laws what is triamterene hctz 37.5 25 mg myl amsa fast orlistat funcion best place to buy imuran us online pharmacy no prescription xeloda tricor online bestellen buy minocin 10 finpecia rx viagra mail order prescriptions levitra professional pct buy cost of alligator what does lotensin treat buy avodart online no prescription cheap price how long does it take for ceftin to work on a sinus infection periactin without prescription miami cloridrato de sertralina para emagrecer do you need rx haridra what types of nizagara are there buy cheap aceon pills power pill 100 head to head football stats fastest torsemide uk delivery acheter alphagan orlistat brands india viagra free sample canada trazodone 100 mg recreational keflex price australia wellbutrin dosage adhd naprosyn max dose is generic cipro available in usa ordering suprax here in canada get discount abilify neurontin medicine online to buy dulcolax in uk anti anxiety drugs for cats who spray puerto rico restaurant puerto rico buy over the counter actos online buy cafergot tablets us tadalafil 5 mg online what is amantadine medicine generic drug for actonel 35 mg buy antibiotics online overnight capoten bonus pills zolpidem 5mg tab motrin 800 no prescription safe propecia buy dapoxetine in the uk eu pharmacy online lisinopril hctz 10 12.5 picture low cost retin-a 0,05 low dosage levitra zofran melt 4mg order viagra online in canada unisom tablets us online erexor online usa no prescription lansoprazole nhs purchase actos 1 diabetes online canadian pharmacy buy cleocin gel long term side effects of taking mobic diclofenac cheapest online overnight little blue pill m 100 drugs for depression and anxiety list toradol im crestor 40 mg pharmacy dipyridamole in the uk now can take keflex urinary tract infection buying ciplox in manchester seroflo over counter uk augmentin mexico companies only buy hydrochlorothiazide 50 xenical spain in the uswhere can i buy the cheapest alli tinidazole woldwide shipping lamictal without prescription canada zenegra tablets for sale zetia without rx printable propecia coupons i pill clozaril website pharmacy zofran orally disintegrating tablets dose plendil generic release date rogaine 5 sublingual dosage suppliers of zyvox in us safe buy alesse online nexium 100 review diclofenac sodium side effects symptoms buy acai for daily use where is alli trippy from clomid trusted online drug stores in canada minocycline tablets purchase on line i pill mevacor website pharmacy cialis 50mg uk cheap kamagra supplier review sildenafil can you buy prevacid over counter canada generic revatio no prescription paroxetine consumer medicine information nexium generic equivalent zanaflex 4 mg price goodrx inc get valtrex prescription online can i get lopid mylan generic advair renagel tablets from buy tinidazole buy usa beat way to order rumalaya how to purchase procardia online finast in the uk now over the counter medicine that acts as tinidazole ranitidine liquid price stromectol rxlist what is thalidomide for zestoretic no prrescription acai sales crestor woldwide shipping online rocaltrol india cheap genuine dilantin online order allegra online no prescription with a mastercard discount coupons voltaren gel 2mg xanax high cheap bupropion 100 mg cheap viagra or cialis cymbalta discount plan confido women buy peut on acheter fucidine sans ordonnance india pharmacies online that sell actoplus met lexapro cheap uk seroquel cheap online viagra jelly fast usa tretinoin generic canada no prescription cheap proventil hfa meclizine and compazine buy cheap actoplus met online drug metoclopramide generic for buy metronidazole caps uk coreg suppliers overseas acivir pills maximum dosage long term side effects of keftab depo provera 100mg endep coupon code lipothin tablets for sale letrozole femara sale buy brand advair diskus in ireland order generic dulcolax diltiazem price buy eurax 40 erythromycin online order colchicine for sale is wellbutrin xl better than bupropion where to buy rythmol ceftin prices at costco cuanto sale orlistat argentina order retin-a 0,05 canada purchase generic diflucan how long do citalopram take to work to buy himcolin oral erythromycin dose acne buy risperdal 2mg what is cialis medicine used for acai berry diet cost why does viagra stop working benemid prices at costco rx all pills shop does micardis hct cause weight gain genuine viagra pills buy levothroid with no rx cialis voucher phone number overseas pharmacy no prescription indocin bactroban precio mexico cordarone drugs online purchases glycomet ordering no prescription where can i purchase tinidazole lamictal dose pack green dulcolax legal us can you only get snovitra super power on prescription valtrex herpes simplex treatment asacol 800 mg spc buy canada no prescription for rosuvastatin cheap gasex accepted low cost pills celadrin drug schedule forum buy deltasone online mg prednisone for cats dipyridamole weight gain provera online usa buy decadron boots pharmacy generic trileptal side effects buy brand aldactone rxlist valtrex dosage voveran gel price safe buy voveran online lov cost nizoral exelon employment chicago seroflo over the counter overnight buy amaryl generic relafen get you high leukeran drug classification unisom wiki target pharmacy amsterdam ny allegra 180 mg uses lotensin dosage route buy evecare online india order actos 5 mg avapro by mail order amaryl where to purchase viagra coupon free revatio health canada plavix costco cheapest betoptic tablets uk uroxatral online bestellen proventil inhaler for sale online nimotop mail order buy citalopram 20mg uk high-dose baclofen for suppression of alcohol dependence one guy one jar video como comprar ephedraxin vente de carafate au quebec best professional prices discount viagra 100mg what pain medicine does not contain aspirin para que se usa femara half price metformin aciphex us sales mail order meclizine ocean blue pillar candles prednisone 10mg dose pack dosing directions prednisone legal in england plendil delivery uk methotrexate shortage pills buy comprar haridra hong kong prescription phone in order for dulcolax generic lozol for sale on line doxycycline acne reviews discount sell amantadine online buy abana mg how to buy differin online long time side effects imitrex where can i buy mevacor epivir-hbv drugstore.com bentyl mg buy wellbutrin sr pharmacy tenormin order in the us amlodipine besylate 10mg cost prescription allegra canada fucidin h buy toradol order on web overstock drugstore free shipping code without a transcript order desyrel online pharmacy no prescription needed zovirax research grade carbozyne tinidazole buy online buy doxazosin online usa cipro 50mg tablets brand cipro buy what is viramune pills used for apcalis sx online ordering arjuna usa cialis cheap generic spironolactone hirsutism mechanism amoxil lawsuit blopress online cheap buy terramycin hong kong pharmacy that sells lozol trileptal side effects long term use cost of clomid privately buy lopressor without prescription from canada how to take finax mg reglan canadian pharmacy where is lapland located on map para que sirve el omifin 50 mg what is the drug pyridium used for best place to buy v-gel genuine claritin best price lithium battery florida vermox dose for tapeworm famotidine calcium carbonate magnesium hydroxide generic how to get lipothin on line clomid over counter medicine can i buy advair diskus in canada legal buy lamisil online canada where can i buy zanaflex tablets use of chloroquine phosphate tablets cymbalta reviews for fibromyalgia salep elocon untuk ibu hamil generic from phexin efeitos colaterais do cloridrato de sertralina probalan without insurance pletal drug schedule legitimate canadian online pharmacies buspar lowest price can order risperdal online adalat for sale buy generic skelaxin online midamor online usa costco pharmacy proscar price risperdal reviews ocd tricor price increase clozaril over counter canada buy topamax without prescription lithium social media monitoring reviews buy vpxl without a subscription tetracycline side effects on teeth why is there a shortage of finpecia albendazole reviews how to use minipress orlistat without perscription uk order phenergan on line canada prednisolone medicinenet cabergoline during ivf how to import pravachol digoxin tablets purchase on line what is mobic 7.5mg tablets cialis soft tab review buy diamox 100 i pill tadapox website buy nexium australia rosuvastatin how to buy buy grifulvin online safely before and after pictures of viagra use pilex medication online best drugstore liquid foundation for combination skin what is pariet taken for diflucan online ordering online relafen india can get accutane over counter cheap genuine rogaine 5 online is there a generic form for cymbalta cheap advair diskus mg medrol over the counter australia order levitra online discount pulmicort tablets uses propranolol drugstore.com diflucan 150 mg during pregnancy pramipexole dihydrochloride side effects z pack side effects itching edpills neurontin dose in renal failure buy yasmin canada generic pulmicort budesonide zantac tablets in pregnancy order suhagra from mexico without prescription online generic alesse buy ponstel tablets online cytotec prescription drug are canadian pharmacies online legitimate best vasodilan prices alavert d-12 reviews us pharmacy online brand levitra generic seroquel paypal lotensin generic substitute how to order deltasone online where to get exelon pct buy isoptin 200 buy sildenafil south africa indian generics online acticin where to buy cheap generic nolvadex buy trental uk donde puedo comprar cytotec sin receta en puerto rico generic viagra sold in canada to buy zithromax discount drugstore coupons salbutamol guaifenesin side effects where can i buy valium online uk premarin shortage 36 hr cialis dosage buy online cheap generic aciphex generic valacyclovir good valtrex buy fluoxetine with e check to buy lamisil what dose of clomid should i take for pct robaxin uk online buy tretinoin cream 0.05 cytotec canada prescription the online drugstore albendazole order seroquel online in usa buy zaditor online pharmacy buy generic flomax online diclofenac during breastfeeding cost of zithromax with insurance order vpxl from canada without prescription clomid to buy in australia propecia pl 1mg czy 5 mg zoloft without a prescription from canada discount prescription store is mail order alesse safe cialis vs levitra reviews leukeran uk buy buy rumalaya gel online reviews can i buy diclofenac over the counter do i need a prescription for lamisil lariam + price + australia buy cordarone discount how to use terramycin eye ointment gyne-lotrimin for sale penegra 50 mg india pharmacies online that sell albendazole claritin d 12 hour dosage instructions order avapro pill zofran coupon code mail-order voveran sr bringing prescription drugs back from mexico viagra for sale in ireland best place to buy cialis online uk side effects of long term prednisone use for asthma what does hyaluronic acid do order generic ampicillin where to buy orlistat mg buy evista boots pharmacy yasmin pill side effects australia order abilify 2mg canada aripiprazole flexeril side effects driving pantoprazole 40 mg natural over the counter viagra substitute how to import differin pharmacy mexico nootropil what is accutane therapy cheapest flomax in the uk buy feldene in australia advair diskus to buy in the usa without a prescription revatio online coupon code buy pain pills online cheap imitrex for migraines dosage tinidazole tablets 500 mg synthroid pills wiki buy amantadine capsules do you need rx beconase aq new alliance for food security and nutrition monsanto diarex buy no prescription where can i buy acai berries fruit online pharmacy tadalafil accutane no prescription uk 100 mg betnovate how to use viagra spray for men buy actoplus met online amazon can you buy nizoral at walmart safe place atarax online forum cheap prescription keppra negative reviews where can i buy zyrtec in the uk toprol xl perth australia costco pharmacy alphagan price bony acai usa clomid success rates for women who already ovulate speman tablets from buy neurontin discount pravachol on line purchase order amitriptyline uk doxycycline and ambien online what is adderall metformin australia pharmacy lithium medicine bipolar perfect image minoxidil 15 how to use clomid after a steroid cycle does zanaflex get you high didronel over the couter lanoxin where to purchase what types of topamax are there avodart on the internet buy pariet pills online propranolol with no prescription motrin tablets uk where can i buy alli in south africa buy topical diltiazem ointment pariet noprescrition needed uk online pharmacy best price nymphomax buy pravachol paypal accepted buy arimidex online india the online drugstore diclofenac grifulvin v 40mg how long does it take for ranitidine to start working buy diclofenac 100mg online generic zyvox 600 mg available finast online coupon code buying feldene mail order pharmacy jobs in maryland buy minipress new zealand online common side effects of levaquin abortion pill cytotec side effects donde comprar serophene en venezuela order allopurinol all rights canadian myaarpmedicare com pharmacy directory artane dublin 5 map what is the prescription protonix used for western drug baclofen generic lexapro not the same aciclovir.com how to import brand cialis bactroban ointment dosage and administration allegra without food erexin-v discount voucher oral isotretinoin acne canadian drugs online no prescription nike 95 air max black what is endep drugs iv cordarone dosage is zantac available over the counter in canada actos sales 2010 ginseng online forum female cialis pharmacy coupons order glucotrol xl 10 mg floxin best price testosterone cream for women dosage cialis soft online usa no prescription is motilium available in the usa buy voveran 200 buy amitriptyline usa bystolic buy cheap best place buy septilin pct should i take lexapro for anxiety estrace drugs for sale order online meds clonidine strattera side effects children how to use aciphex what is the dosage for zithromax to treat gonorrhea quickest delivery cheap benicar cod online maxaman india generic metformin zydus vitamin d and erectile dysfunction bactroban pediatric dose no rx zebeta online ventolin delivery london original keftab online sinemet for sale australia diclofenaco 50mg prescription metformin hydrochloride can you buy rhinocort in ireland flomax generic cost without prescription safe online pharmacy no prescription needed norvasc para que se usa biaxin no prescription needed canadian online pharmacy buy unisom from canada can i make zofran mircette for sale philippines wellbutrin side effects anger hostility order viagra super active online no prescription with a mastercard escitalopram online non prescription uk what is a prednisone dose pack can you buy azithromycin over the counter in australia ce parere aveti despre viagra revia order online buy chloramphenicol usa diprosone 0.05 pommade side effects prednisone medication lasuna medicine children decadron woldwide shipping generic metformin pictures birth control pills decadron aciclovir 20 mg better than retin-a 0,025 Purchase cephalexin 250mg capsules generic motrin called medicare viagra 2012 fosamax purchase get extendaquin las vegas prednisone visa buy alphagan eye drops prescription ordering ciplox buy vasodilan with paypal suppliers of yagara in us zestril generic for voveran order on web what does synthroid 100 mcg look like buy diclofenac 40 canada drug service of greenfield llc buy micardis from india ditropan over the counter canada purchase betapace online ic metronidazole 0.75 lotion lov cost retino-a cream 0,025 fucidin online forum luvox buy on line buy bactrim ds online no prescription can you get addicted to dramamine where to get lexapro cheap order allies what is a toxic reaction to chloromycetin cipla pharmaceuticals indore what types of lasix are there betnovate n cream for face acticin order insulin pen instructions cheap finasteride australia where can i buy furosemide in the uk fastest aldactone uk delivery acheter requip generic voltaren eye drops safe order cialis online amaryl uk brand name elocon generic name apcalis sx online coupon code reviews on brahmi amla hair oil what is the dosage for cytoxan revatio 20 mg tid buy online flomax generic suppliers of digoxin in us buy actoplus without prescription lipothin to purchase without a prescription avodart discount program differin reviews acne.org aristocort phone orders lowest price artane brand oxytrol buy zoloft dose can you drink on erythromycin tablets zoloft online ship worldwide buy tretinoin 0,025 bulk colospa lowest price buy aldactone tablets canadian proventil canada overnight delivery
Home

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 856 guests online

Atom RSS

The Clemens Defamation Lawsuit: Litigation Marches On PDF Print E-mail
User Rating: / 9
PoorBest 
Articles & Opinion
Written by Patrick K. Thornton   
Tuesday, 13 May 2008 23:46
Clemens v McNamee

The following is a detailed analysis of the Clemens defamation lawsuit by Patrick K. Thornton. Thornton is a regular contributor to the Business of Sports Network. -- Maury Brown, Founder and President, Business of Sports Network

Baseball season has started heating up and as the national pastime heads for the all star break the Roger Clemens defamation lawsuit keeps plodding right along. Although there has been speculation that Clemens would drop his lawsuit against his former trainer Brian McNamee, no dismissal has been forthcoming. The lawsuit was filed in January and McNamee has not yet filed an answer to the petition filed by Clemens but instead chose to file a motion for summary judgment to have the case dismissed in its entirety and additionally a motion to disqualify Clemens lawyer, Rusty Hardin from the case.  The motion to disqualify Hardin was based on the premise that he also represented Clemens’ former teammate, Andy Pettitte.  The motion to disqualify was recently denied by the court so Hardin remains as counsel for Clemens.  The motion for summary judgment is still pending.  The defamation lawsuit is just beginning and could go on for as long as 2-3 years at the pace it is proceeding.

There has some who have called upon Clemens to drop the lawsuit against McNamee but there has been no indication he will do so.  Clemens lawyer, Rusty Hardin, has said, “Absolutely, there’s been no action to dismiss the lawsuit.”  In response, attorney Richard Emery, has stated: "First of all, I'm highly skeptical that Rusty and Roger will be smart enough to drop the suit, because they have not been smart enough to realize that was the best course,” "So I don't know why all of a sudden they would do what's best for themselves” Lawyers: Clemens not Dropping Defamation Suit, Houston Chronicle, May 2, 2008. Emery has given no indication he will back down from his continuous assault on Clemens character:

“We're preparing for a trial,"… "We will follow every lead concerning Roger's rather questionable reputation, including deposing all the women who claimed they have slept with him and members of his family and his wife as to their knowledge of his use of steroids…

"There have been a number of reports that Debbie knew about Roger's dalliances. And we certainly have to inquire whether that was the case.” id.

Hardin admitted his client was going through some rough times but noted the decision whether to drop the case rests with Clemens and not his lawyer.

Select Read More to see the rest of the analysis on the Clemens defamation lawsuit

Defendant McNamee’s Motion for Summary Judgment

McNamee has asked that the court dismiss the lawsuit filed by Clemens based on the following:

1. The court lacks personal jurisdiction over the defendant, (McNamee);

2. The present court is not the proper venue for Mr. Clemens’ lawsuit; and

3. The complaint fails to state a claim for defamation under the law.

The first two reasons are procedural in nature while the third is substantive and goes directly to the defamation lawsuit itself.  The motion for summary judgment filed by McNamee is twenty-five pages in length and can be viewed in its entirety (Defendant Motion to Dismiss (PDF)).

McNamee first asserts the U.S. District Court for the Southern District of Texas has no jurisdiction over him personally because he is from the State of New York and does not have “sufficient contacts” with the State of Texas to allow the court to exercise personal jurisdiction over him.  If the court did grant McNamee’s motion to dismiss for lack of personal jurisdiction, Clemens would then be forced to re-file the action in a New York Court if he wanted to continue the lawsuit. 

Secondly, McNamee argued that even if the court does not dismiss the action for lack of jurisdiction, the U.S. District Court for the Southern District of Texas is the wrong venue for the lawsuit.  McNamee argues the case should be moved to New York because he does not reside in Texas and the facts which give rise to the lawsuit occurred in New York.  If the court fails to dismiss the action based on lack of personal jurisdiction, McNamee argues the case should be transferred to a New York court to continue the litigation. 

Finally, McNamee’s lawyers argued the case should be dismissed in its entirety based on several factors:

1.  The complaint fails to state a claim because the allegedly defamatory statements are absolutely privileged;

2.  The complaint fails to state a claim because it does not provide Defendant (McNamee) with sufficient notice of the allegedly defamatory statements, nor does it allege special damages; and  

3.  The complaint fails to state a claim because it asserts that McNamee was coerced to defame Clemens.

The court has several options when contemplating the motions.  It could dismiss the case on the basis of lack of personal jurisdiction.  This would again force Clemens to have to re-file the case.  The court could merely pass the case to a New York court and allow the case to be tried in Federal Court in New York.  Finally, the court could decide that Clemens does not have a case and dismiss all or a part of his complaint against McNamee.  This would be a major decision by the court and if the court dismissed the case on substantive grounds, Clemens could still appeal the court’s decision.  

The Admissibility of the Clemens Alleged Extramarital Affairs

Several interesting issues had popped up in the last few weeks and none more public than Clemens alleged affairs with several women.  What do these alleged affairs have to do with the defamation lawsuit he has brought against his former trainer?  Plenty, asserts Richard Emery, McNamee’s lawyer.  As the motion for summary judgment hangs in the balance, McNamee’s lawyers have made it clear they are going to pay “hardball” with Clemens. The recent allegations concerning Clemens’s alleged multiple affairs have been brought to light by McNamee’s lawyer Richard Emery.  (See Emery’s biography).  Emery has clearly indicated that he believes that the alleged affairs are “fair game” in the defamation lawsuit because Clemens has placed his reputation in controversy when he filed the lawsuit.

In a civil lawsuit, unlike a criminal case, an individual cannot assert their constitutionally protected Fifth Amendment privilege against self-incrimination.  The plaintiff must give testimony in the form of a deposition prior to trial if requested by the defendant and it will most certainly be requested by McNamee’s lawyers in this case.  Clemens will be subject to questioning by McNamee’s lawyers in a deposition prior to trial and during the discovery phase of the lawsuit.

The recent allegations that Clemens had an affair with country star Mindy McCready beginning when she was fifteen years old, certainly did not help the Clemens lawsuit or his public persona.  McCready did not acknowledge the allegations as true but merely stated she could not deny the allegations.  After the McCready allegations, next came the allegations concerning an affair with Paulette Daley, the ex-wife of PGA Golfer John Daly, and finally an alleged affair with a former stripper from Detroit.  The Clemens camp was relatively silent on most of the allegations, only issuing a statement saying Clemens had known McCready for a long time but there was no sex.  Clemens lawyer, Rusty Hardin has stated:

"At no time did Roger engage in any kind of inappropriate or improper relationship with her. It is unfortunate that the Daily News has chosen to report anonymous allegations that are completely unfounded, have no basis in fact, and have nothing to do with Roger's baseball career or the issue of steroid use in baseball” Clemens involved with Daly's ex-wife, NBC Sports, May 1, 2008.

Paulette Daly has stated: "I know Roger, I consider him a good friend. That's all I'm comfortable saying” id.

Can all these allegations be admitted into evidence at the trial of the defamation case?  McNamee attorney, Richard Emery stated in an email to the Associated Press with regard to the alleged affairs, "If the case heads to trial and is not dismissed, as we feel it should be, we will be calling (McCready) as a witness”. id. Clemens did apologize without any specific references to the affairs stating:

"I believe my personal life has nothing to do with the accusations of steroid and HIGH use,"…"I have already made clear that I did not use them. Now, I have been accused of having an improper relationship with a 15-year old girl. Nothing could be further from the truth. This relationship has been twisted and distorted far beyond reality. It is just one of many, many accusations that are utterly false.

"I realize that many people want me to simply confess and apologize for the conduct that I have been accused of, but I cannot confess to, nor apologize for, things I did not do. I have apologized to my family for my mistakes, and having offered this apology to the public, I would ask that you let me and my family deal with these matters in private”. Clemens 'Sorry' For Mistakes In Personal Life, 13 WJZ-TV Baltimore, May 5, 2008.

Even if proven to be true, does cheating on your wife translate to a person lying about whether they took performance enhancing drugs?  If the case resulted in a trial would evidence of Clemens alleged multiple affairs be admitted into evidence at a trial?  Not necessarily, but McNamee’s lawyers has show every intention of connecting the two in the court of public opinion and in the courtroom as well. 

Before the case proceeds to trial Clemens’ lawyers would most likely file motions in limine to attempt to have the evidence excluded and deemed not relevant to the defamation claim brought by Clemens against McNamee.  The judge would be guided by the Federal Rules of Evidence which define relevant evidence as follows:

Rule 401. Definition of "Relevant Evidence"

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence” .

If the danger of unfair prejudice from the affairs would outweigh the probative value in examining Clemens defamation claims against McNamee then the evidence would most likely be deemed inadmissible. 

It would be within the discretion of the trial judge whether to allow the admission of such evidence into the trial. 

According to most public opinions polls, the reputation of Clemens has been tarnished.  It was recently reported that Clemens was not welcome on the U.S. Olympic team for the 2008 Olympics in Beijing.  U.S. general manager, Bob Watson has stated: “From my viewpoint, we didn’t need that type of distraction” Clemens Not Welcome on US Olympic team, NBC Sports, May 7, 2008.

This lawsuit is barely underway.  If Clemens continues to move forward there will be numerous depositions taken of individuals involved in the lawsuit including, Roger Clemens, Debbie Clemens, Mindy McCready, Paulette Daly, Brian McNamee, Jose Conseco, Andy Pettite, and most likely many more high profile individuals.  The lawsuit could take 2-3 years to resolve.  The overwhelming majority of lawsuits settle, so what are the prospects for some type of settlement of this lawsuit?  If the judge dismisses the lawsuit Clemens would then have to appeal the court’s decision.  Whether he would do so or not is still a mystery.  The pre-trial discovery phase of the litigation could take 1-2 years to complete.  Of course, settlement discussions can occur at any time and federal courts are known to coerce parties to the settlement table.  The question now is, what does Clemens have to gain by pursuing the case further?  His prospects for winning seem rather dim considering the “public figure” requirement under defamation law which he would have to overcome.  See New York Times v. Sullivan, 376 U.S. 254 (1964).  If a plaintiff in a defamation case is considered a “public figure” as defined by the law then the plaintiff would have to meet a higher burden of proof, that of “actual malice” to prevail in a civil lawsuit. It is a virtual certainty that Clemens would meet the test for public figure status under defamation law.  

McNamee does seem to be collectable for any damages Clemens might be awarded and Clemens is certainly in need of money.  With his reputation tarnished and a long tough road ahead for the civil lawsuit it seems unlikely Clemens would continue the case against McNamee for an extended period of time.  However, if Clemens never took performance enhancing drugs as he asserts, then just maybe, he wants to prove that in a court of law. 

Clemens approached his baseball career with an aggressive style and was known to throw a “brush back” pitch or two, just ask Mike Piazza.  Maybe he has a piece of evidence that would show his innocence and he is just waiting to deliver the “smoking gun” at the right time.  However, considering the beating he has taken in the press he most likely would have come forward with that evidence by now. 

It is rudimentary to state that the reputation of Roger Clemens is hanging in the balance and his reputation has always been something he has treasured and monitored.  If he voluntarily dismisses the case then he will certainly look “guilty” and giving up is something Roger Clemens has never been very good at.  Pressure is something he is always thrived upon.  Never before has he been in a pressure cooker such as this one.  One of his closest friends swearing under oath that Clemens discussed performing evidence drugs with him, a pending federal investigation into whether Clemens lied to Congress, allegations of marital infidelity and a very public lawsuit which has been the main focus of the media in the last few months.  All those factors together are troubling for Clemens.    

Clemens has never wilted under pressure on the diamond but he has never faced such long odds either.  It is difficult to believe he will sit idly by and do nothing.  That seems against his very nature.  McNamee’s attorney seems bent on embarrassing Clemens into dropping the lawsuit.  McNamee has not filed a counter-claim against Clemens for defamation but there are court deadlines that parties must follow and a counter-claim by McNamee could raise the level of the intensity of litigation by the parties. Maybe Clemens is hoping fans have had enough and will shift their focus to the Boys of Summer and as the season goes on, forget all about the Mitchell Report, Roger Clemens and the cast of characters which have been on display for the last few months.  In the meantime, the litigants weigh their next move.


Patrick K. Thornton is a regular contributor to the Business of Sports Network . He 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. He may be contacted at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .


REFERENCES

  • Accusation of Affair Erodes Clemens’ Credibility. Yahoo Sports. April 28, 2008.
  • Clemens’ Alleged Affairs Could be Part of Suit. Houston Chronicle. May 9, 2008.
  • Clemens Apologizes for ‘Mistakes,’ Continues to Deny Steroid Use. ESPN.com. May 4, 2008.
  • Clemens involved with Daly's ex-wife, NBC Sports, May 1, 2008. http://nbcsports.msnbc.com/id/24350727/
  • Clemens 'Sorry' For Mistakes In Personal Life, 13 WJZ-TV Baltimore, May 5, 2008. http://wjz.com/sports/Roger.Clemens.apology.2.716168.html.
  • Defendant’s Motion to Dismiss the Complaint in its Entirety . United States District Court Southern District of Texas, Houston Division. 4:08-cv-000471.
  • Defendant’s Opposed Motion to Disqualify Rusty Hardin , ESQ. and Rusty Hardin & Associates, P.C. United States District Court Southern District of Texas, Houston Division. 4:08-cv-000471.
  • Federal Judge Says Clemens Can Keep Hardin as Lawyer.Sl.com. May 6, 2008.
  • Hardin Files to Remain Clemens’ Lawyer.  Silver City Sun-News. March 25, 2008.
  • Hardin Stays as Clemens’ Attorney. Houston Chronicle. May 7, 2008.
  • Judge Allows Clemens to Keep Lawyer in Defamation Suit. Houston Chronicle. May 6, 2008.
  • Lawyers: Clemens not dropping defamation suit, Houston Chronicle, May 2, 2008. http://www.chron.com/disp/story.mpl/sports/5750706.html.
  • Lawyer Says McNamee Defamation Suit Stands. Chron.com. May 2, 2008.
  • McNamee Asks Lawsuit be Tossed. Chron.com. March 5, 2008.
  • McNamee’s Lawyers Seek Ouster of Hardin. The New York Times. March 5, 2008.
  • McNamee Wants Clemens Lawsuit Dismissed. ABC News. March 5, 2008.
  • McCready Unlikely to be Tipping Point in Clemens’ Defamation Suit. SI.com. April 29, 2008.
  • Memo to Roger and Rusty: Show Us the Lawsuit. ESPN.com. May 1, 2008.
  • More Roger Clemens Affairs Alleged, KHOU.com. May 3, 2008
  • Motion Would Take Aim at Clemens’s Top Lawyer. The New York Times. February 26, 2008.
 
 
Banner

Poll

Should MLB Force Jeffery Loria to Sell the Marlins?