By Michael McCann
January 07, 2008

On Sunday, Roger Clemens spoke to 60 Minutes in his first interview since the release of the Mitchell Report.'s Michael McCann tackles the legal questions surrounding the allegations and denials by Clemens and his former trainer, Brian McNamee. He also analyses the defamation lawsuit Clemens filed against McNamee on Monday.

1) Brian McNamee has threatened to sue Roger Clemens for slander based on his comments aired Sunday on 60 Minutes. What would a slander lawsuit entail?

McNamee would argue that Clemens "slandered" him by publicly and dishonestly rebuking him on 60 Minutes. Slander is the oral version of defamation, which also encompasses libel, or defamation by written or visualized material. To establish slander, McNamee would have to show that Clemens' statements were untrue, injured McNamee's reputation, and exposed him to public ridicule.

Although many persons, including former U.S. Senator George Mitchell and his team of investigators, believe McNamee's account, McNamee would nonetheless encounter difficulty in establishing slander.

For starters, it is unclear that McNamee has suffered a compensable form, or any form, of defamation. Clemens vehemently disagreed with McNamee's statements, calling them "ridiculous, hogwash" and thus implying, though not stating, that McNamee was a liar. In and of itself, however, a disagreement is not slander. People often disagree about previous events, particularly those that occurred years ago, and each party saying the other is wrong does not immediately equate to slander.

Along those lines, slander typically requires statements that rise well above the insulting and disagreeable and approach the egregious and derogatory. Clemens' comments on national television, though emphatically contradicting McNamee, may be too restrained in both their wording and effect. After all, Clemens admitted to Mike Wallace that, like McNamee said, he was repeatedly injected by McNamee, and most people seem to believe McNamee and disbelieve Clemens as to the syringes' contents, especially since Andy Pettitte has already corroborated McNamee's take on him.

On the other hand, implying that another person is a liar could be considered "defamation per se," which refers to a statement so damaging of another's reputation that it is defamatory on its face. There is conflicting case law, however, on whether calling another a "liar" constitutes defamation per se; merely implying that another is a liar would be even less certain to qualify.

McNamee's public status would also bear on his prospects in a slander lawsuit. Courts have made it harder for "public figures" to succeed in defamation lawsuits by requiring that they prove "actual malice": the defendant knew or recklessly disregarded the probable falsity of his damaging statement. In contrast, private figures, which describe the vast majority of Americans, only must show the defendant "should have known" the probable falsity. Is McNamee a "public figure" or a "private figure"? There is no bright-line test, but one typically becomes a public figure when discussion about him becomes a matter of public concern. McNamee's recent fame would seem likely to lead a court to classify him as a public figure, thus making a slander lawsuit less poised to succeed.

McNamee also finds himself in a uniquely vulnerable position that may dissuade him from bringing a claim. In 2006, he signed a proffer agreement, which calls for a person to truthfully reveal information to prosecutors about possible illegality in exchange for any disclosures not being used against him. McNamee agreed to provide details about illegal steroids in a federal steroids investigation. If it is determined that he lied to prosecutors -- as Clemens' comments on 60 Minutes imply -- the agreement would be severed and McNamee would face serious criminal charges, including those related to his purchase and distribution of illegal steroids and to obstruction of justice.

As a final point, Clemens would enjoy several potential defenses in a slander lawsuit. The most important defense is truth. If Clemens could establish the veracity of his denial, McNamee's slander claim would fail. To do so, however, Clemens would probably have to testify under oath, and if he failed to tell the truth while doing so, he could be indicted for the crime of perjury -- just like Barry Bonds.

2) Would Clemens have to testify under oath about steroids in slander lawsuit?

No. He could invoke his Fifth Amendment privilege, which protects parties in a legal proceeding from disclosing information that they reasonably believe could be used in, or give rise to, criminal prosecutions of them. If Clemens indeed purchased and used illegal steroids, he could only answer related questions under oath by admitting as much or face the risk of a perjury charge. To avoid that scenario, he could continue to deny using steroids in media and public forums, such as on 60 Minutes and YouTube, but then take the Fifth while under oath.

The downside to that strategy is obvious: why be so talkative with Wallace but so reticent with a judge? A less obvious point relates to the law: though a defendant's use of the Fifth Amendment cannot be used against him in a criminal trial, it can be used against him in a civil trial. Courts have held that it is permissible to draw an adverse inference from a party taking the Fifth in a non-criminal proceeding, though the party cannot be held liable based solely on taking the Fifth. As a result, Clemens' taking the Fifth could make him more likely to be found civilly liable.

3) How can we be sure that Clemens has told Mike Wallace the truth?

We can't. Though Clemens should have been reluctant to lie with a national audience watching, and though 60 Minutes presumably expects good faith from its interviewees, Clemens was under no legal obligation to speak truthfully.

Thus, when Wallace asked Clemens if he "swear[s]" in his contention that he was only injected with the local anesthetic Lidocaine and Vitamin B-12, Clemens was not affirmatively swearing to any legal or governmental institution. Contrast that to McNamee, who provided prosecutors with information under the threat that any material lies could lead to criminal prosecution. Though we should not necessarily believe McNamee over Clemens, their comments were given in two very different contexts.

4) Will Clemens have to testify before Congress?

Clemens, McNamee, Andy Pettitte, Chuck Knoblauch, and former Mets clubhouse attendant Kirk Radomski have all been invited to testify before the U.S. House Committee on Oversight and Government Reform on Jan. 16. At that hearing, the Committee will examine the Mitchell Report and the broader topic of steroids in baseball. Clemens will likely have to appear, but, as in a civil trial, he could then invoke his Fifth Amendment privilege, provided, of course, he reasonably believes that answering specific questions from members of Congress could lead to him being criminally prosecuted.

Clemens did tell Wallace he would be willing to testify before Congress, and his attorney, Rusty Hardin, earlier stated, "Roger is willing to answer questions, including those posed to him while under oath." Parsing Hardin's statement, however, I wonder whether Clemens would be willing to answer every question while under oath? If not, Clemens might avoid a slander lawsuit from McNamee, whose lawyers have reportedly said that if Clemens pleads the Fifth before Congress, they would consider it an admission of guilt and no longer contemplate a slander lawsuit.

5) Can Clemens refuse to appear before Congress?

Clemens could decline his "invitation" from Congress, but could then be subpoenaed to appear. A subpoena is a written order that compels a party to appear at a particular place (in this instance Congress) and at a particular place and time. Failure to comply with a Congressional subpoena can lead to a criminal charge of contempt of Congress, which in turn can lead to incarceration. It has been reported that House Oversight Committee chairman Henry Waxman (D-Calif.) may pursue subpoenas of the invitees if any fail to show.

6) Why is Clemens suing McNamee for defamation?

Clemens' basic theory is that McNamee had an incentive to lie. As discussed above, McNamee signed a proffer agreement with prosecutors to reveal all he knew about the sale, distribution, and use of steroids in exchange for his revelations not being used against him. Arguably, the more he told prosecutors, the less likely they would pursue criminal charges against him.

There is a key difference, however, between filing a lawsuit and actually litigating it. Filing a lawsuit merely requires the statement of a claim, payment of a filing fee, and notice to the defendant. Though Clemens may genuinely believe that McNamee has wronged him, he could also be filing the lawsuit without the intent to litigate it. For instance, he and his attorneys may believe that filing a lawsuit would make his claims on 60 Minutes seem more believable. They could later drop the lawsuit before going to trial, and he would still preserve his Fifth Amendment rights should he eventually testify before Congress or a court. Of course, there are potential punishments for filing "frivolous" lawsuits, like one designed for public rather than judicial consumption, but a plaintiff can often provide ostensibly valid reasons for later dropping the lawsuit.

It is interesting that Clemens has not also sued Major League Baseball for libel, since it published and relied upon McNamee's allegedly false claims when denouncing Clemens in the Mitchell Report. Maybe he does not blame Major League Baseball for believing McNamee, especially since Clemens acknowledged his mistake in failing to speak with former Senator Mitchell. Similarly, he may believe that a legal claim against Major League Baseball would be too weakened by his failure to cooperate with Mitchell. More cynically, perhaps he and his attorneys do not want to open a can of worms that they cannot later close. Then again, since he preserves the right to later sue Major League Baseball for libel, he may be developing a legal argument or simply keeping his options open. In addition, as explained above, it is very difficult for public figures to succeed in defamation lawsuits.

Michael McCann is a law professor at Mississippi College School of Law and Chair of the Association of American Law Schools' Section on Sports and the Law.

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