Why I Think There Will NEVER Be A Defamation Lawsuit As a Result Of the Mitchell Report (Or Anything
JackWESQ
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in Sports Talk
Listen to any sports talk radio show or read your local sports (online or otherwise), I'm sure you'll come across someone screaming defamation lawsuit as a result of the Mitchell Report. No guarantees, but I seriously doubt there will ever be a civil lawsuit filed as a result of any names "being named" for two simple reasons:
1. The player (active or otherwise) would be subject to a deposition that would last for ... (I don't know, what the longest deposition you've ever heard of? Me - 6 days)
2. Truth is an absolute defense.
Don't get me wrong, I would LOVE for a lawsuit being filed. But I just can't see any rational lawyer counseling a player to proceed with a civil action. To file suit would open that player up to a can of worms the world has never seen.
Moreover, pursuant to N.Y. Times v. Sullivan, where a public figure (arguably any baseball player ... and certainly Roger Clemens) attempts to bring an action for defamation, the public figure must demonstrate that the statement was made with "actual malice," meaning that the persons making the statement knew the statement to be false, or issued the statement with reckless disregard as to its truth. That's a pretty high burden to overcome.
Also, here are some other points to consider being filing a lawsuit for defamation:
1. The publicity that results from a defamation lawsuit can create a greater audience for the false statements than they previously enjoyed.
2. Defamation cases tend to be difficult to win, and damage awards tend to be small.
3. Most people will respond to news that a plaintiff lost a defamation lawsuit by concluding that the allegations were true.
Just my $0.02.
/s/ JackWESQ
1. The player (active or otherwise) would be subject to a deposition that would last for ... (I don't know, what the longest deposition you've ever heard of? Me - 6 days)
2. Truth is an absolute defense.
Don't get me wrong, I would LOVE for a lawsuit being filed. But I just can't see any rational lawyer counseling a player to proceed with a civil action. To file suit would open that player up to a can of worms the world has never seen.
Moreover, pursuant to N.Y. Times v. Sullivan, where a public figure (arguably any baseball player ... and certainly Roger Clemens) attempts to bring an action for defamation, the public figure must demonstrate that the statement was made with "actual malice," meaning that the persons making the statement knew the statement to be false, or issued the statement with reckless disregard as to its truth. That's a pretty high burden to overcome.
Also, here are some other points to consider being filing a lawsuit for defamation:
1. The publicity that results from a defamation lawsuit can create a greater audience for the false statements than they previously enjoyed.
2. Defamation cases tend to be difficult to win, and damage awards tend to be small.
3. Most people will respond to news that a plaintiff lost a defamation lawsuit by concluding that the allegations were true.
Just my $0.02.
/s/ JackWESQ
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Comments
You made an intelligent argument about lawsuits not being practical here. I have heard that it would take $50,000 just to get started and it may cost 1 million dollars when all is pretty much done without any guarantees. To some of these athletes, the money might be no object, but it is also costly emotionally to go through something like this. With that said, I do believe Clemens and Bonds can afford this though, but some of the others on the list most likely cannot.
However, being on this Mitchell list is damaging to a player in many ways. A libel lawsuit can be filed since no real clear cut evidence exists with some of their accusations. The reliance was on trainers and club house boys, not actual labratory tests, to make these conclusions in the report.
Your point about "malice" being hard to prove. Yes it would be hard, but malice seems like a subjective concept, not an empirical one. All you would need is a talented lawyer to conjure up a nice case and then there you have it. Proving "malice" is a work of art as one has to seek out witnesses, telephone conversations, emails, journals, etc and cite those things in an argument. The right mix of things will prove fruitful. We are not talking about a concept like Issac Newton's Laws of Gravity which can never be contested or a murder trial where either one did it or not. "Malice" is something that falls in the gray area. One can come up with arguments for either side, but the side that persists the most will win since, objectively, there really is no right or wrong answer to this. I do believe Barry Bonds can afford this type of law fight. I am sure that evidence of malice can be dug up. His scornful ex-girl friend, the frenzy of fans that constantly talk trash about him on message boards drawing further negative attention to him, etc. A malice case can certainly be built in favor of Bonds if he has the right legal team.
Jack, perhaps you brought up a bigger point in that going through a lawsuit just draws even more attention to the defamation itself, something that is counterproductive in a way. Perhaps some of these players are smart enough to just drop worrying about this and continue to get on with their lives. They know people will forget about this after a while and talk less of it too. The likes of Jason Giambi will continue to play, in the end, the list is just Ho Hum. No will get punished that's on the list. Bonds is just being punished for perjury.... not for being on the list.
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SUE THEM ALL!!
It would have helped the case if it was a well known reputable doctor who was a fine outstanding citizen of the community giving the shots vs. a an attendent slipping a vile to a player. These guys always come out looking like O.J.'s new friends. I would love to see these guys file a suit. It would put the Mitchell report to shame. I'm calling you out Roger,.... I DARE YOU!!!!!! File!!!
that is my point....the Mitchell Report is backed mostly by anecdotal evidence, so the armor is pretty weak. I wonder what a lawsuit by Bonds or Clemens may do. They can easily fork over 4 million dollars without blinking if they wanted to.
BST: Tennessebanker, Downtown1974, LarkinCollector, nendee