Should Roger Clemens Sue George Mitchell for Defamation?

 by Aaron Goldstein  

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In reading the Mitchell Report’s account of Clemens’ activities, I am troubled by the lack of diligence by the former Senate Majority Leader's investigative team in uncovering any meaningful corroboration whatsoever.

Thanks to George Mitchell, the legacy of Roger Clemens’ 24-year major league baseball career has been destroyed in less than 24 hours.

Clemens was amongst 89 current and former major league baseball players named in The Mitchell Report that was released on December 13th.  Nearly ten pages of the report are devoted to Clemens (pages 167-175 to be exact).  His former trainer, Brian McNamee, has alleged that he injected Clemens with steroids and human growth hormone on several occasions between 1998 and 2001.  During this period, Clemens pitched with the Toronto Blue Jays and the New York Yankees and McNamee was on the coaching staff of both clubs specializing in strengthening and conditioning. McNamee has also made similar claims concerning Clemens’ fellow Yankees pitcher and friend, Andy Pettitte, as well as their former Yankee teammate Chuck Knoblauch.

Through his attorney, Rusty Hardin, Clemens has denied the allegations.  “Roger has been repeatedly tested for these substances and he has never tested positive," said Hardin, “There has never been one shred of tangible evidence that he ever used these substances and yet he is being slandered today.”

Much of McNamee’s claims are uncorroborated. It is also worth noting that he is cooperating with the U.S. Attorney’s Office for the Northern District of California in order to avoid criminal charges for distributing steroids. Yet many in the sports media are taking Mitchell’s report and McNamee’s claims against Clemens at face value.

Bill Madden of the New York Daily News writes, “The problem I have with wanting to believe Clemens and not McNamee is that the trainer’s accusations are far too detailed as to have been made up.  And why would he make them up?” So according to the gospel of Bill Madden, if there is too much detail in a claim it thus must be true?  Evidently Madden doesn’t think avoiding prison is sufficient motivation to lie or at the very minimum to stretch the truth. Let’s also remember that Clemens indicated that he severed his association with McNamee earlier this year. That would also provide one with considerable motivation to grind one’s axe.

Peter Gelzinis of the Boston Herald hits Clemens at home – literally. Gelzinis wonders aloud if the Rocket had a heart to heart with his eldest son, Koby, who is currently a catcher in the Houston Astros minor league system:

I’m wondering if Dad ever took the time to explain how it was that he kept getting bigger and bigger later and later in his storied career.  When they worked out together, did the Rocket decide to clue his boy in to the kind of “training supplement” that was disclosed in the pages of George Mitchell’s report yesterday?

Richard Justice of the Houston Chronicle was direct and to the point:

No matter what happens now, Roger Clemens is forever tainted.  Every accomplishment is diminished, and no amount of bluster by his attorney can change that basic fact. Even if Clemens can somehow refute the dozens of details and prove his innocence, the suspicion will linger. He will never be viewed the same way by many of the fans who once adored him.

Prove his innocence? Are major league baseball players now formally excluded from the principle of innocent until proven guilty? Ladies and gentlemen, Mark McGwire was right. While much maligned for not wanting to talk about the past when he appeared before Congress, the former slugger had his reasons.  “If a player answers ‘No,’ he simply will not be believed,” said McGwire, “If he answers ‘Yes,’ he risks public scorn and endless government investigations.” Indeed, Henry Waxman will be getting a lot of airtime next week as the House Government Reform Committee will be holding hearings into the Mitchell Report.

In reading the Mitchell Report’s account of Clemens’ activities, I am troubled by the lack of diligence by the former Senate Majority Leader's investigative team to find any meaningful corroboration whatsoever. As such I am troubled by the allegations against Clemens presented in the Mitchell Report for three reasons.

First, I am troubled by the lack of corroboration of McNamee’s claims by other witnesses. McNamee’s claims begin during a party at the home of Jose Canseco, then a Blue Jays teammate of Clemens, in Miami somewhere between June 8 and 10, 1998. The Blue Jays were in Miami playing a three-game series against the Florida Marlins. McNamee claims he saw Clemens, Canseco and an unknown third participant meeting with each other but was not present at the meeting. The Mitchell Report states that Canseco informed his investigators that he spoke with Clemens about steroids on numerous occasions, specifically about the benefits of Deca-Durbolin and Winstrol, and notes that he also made these statements in his 2005 book Juiced. Yet the Mitchell Report does not specify whether Canseco spoke to Clemens and this mystery third person about steroids during this party at which McNamee was present.

McNamee then claims that Clemens approached him about using steroids either towards the end of the road trip in Florida or shortly after returning to Toronto. So let me get this straight. McNamee remembers Clemens approaching him about using steroids yet he doesn’t remember what country he was in when this happened?

Second, according to the Mitchell Report, McNamee claimed that after injecting Clemens with Winstrol in the summer of 1998, his “performance showed remarkable improvement.” Now, it is true that Clemens was named the American League Pitcher of the Month in August of that season. However, Clemens had been on a roll long before August. It is worth noting that in 1998 Clemens had a won-loss record of 20-6. Clemens would win his final 15 decisions that season en route to his second consecutive AL Cy Young Award and fifth overall in his career. His last loss of the 1998 season came on May 29th in a game at Sky Dome against the Cleveland Indians. In Clemens very next start, on June 3rd at Sky Dome against the Detroit Tigers, he pitched a complete game, striking out 10 batters and allowing only one run en route to a 5-1 victory. These two games I have mentioned occurred before the road trip to Florida. 

Finally, there is simply no money trail, much less a paper one, that connects Clemens and McNamee where it concerns steroids.  This goes back to the lack of corroboration. McNamee claims that Clemens approached him about steroids in 2000 and again in 2001 when they were both associated with the Yankees. In both seasons, McNamee claims to have injected Clemens with either Sustanon 250 or Deca-Durbolin on several occasions. He also claims to have injected Clemens with human growth hormone in 2000, but disliked it and did not repeat the procedure in 2001. Unlike 1998, where McNamee claims that he injected Clemens with steroids that Clemens himself supplied, this time it was McNamee who obtained the steroids from Kirk Radomski. Yes, the same Kirk Radomski, the former New York Mets batboy and clubhouse attendant, who is Mitchell’s principle source of information in this report. 

Yet McNamee never actually told Radomski that Clemens was using steroids or human growth hormone but conveyed it to him by “dropping hints.” Yes, dropping hints is a sure means for a DA to get a conviction in a criminal case. Moreover, the only banking records between McNamee and Radomski available to Mitchell occurred in 2003-2004. The Mitchell Report acknowledges that Clemens never provided McNamee with funds for the specific purpose of buying steroids or human growth hormone. This is notable because the Report does provide copies of cancelled checks by other players named in the report to Radomski. There is also no record of telephone conversations between McNamee and Radomski prior to 2004. All of this activity occurred after the period McNamee claims to have supplied and/or injected Clemens with steroids and human growth hormone. 

Let’s be absolutely clear. There are no witnesses that can corroborate McNamee’s claim that he injected Roger Clemens with steroids. There is no paper or money trail that links Clemens and McNamee nor McNamee and Radomski in the distribution or consumption of performance enhancing drugs where it concerns Roger Clemens. It is also clear that McNamee’s memory is faulty in claiming that Clemens “performance showed remarkable improvement” in 1998, as Clemens' remarkable improvement that season began before Clemens was alleged to have approached McNamee for steroids.  Furthermore, it is reasonable to assume that absent McNamee’s cooperation he might now be sitting in a jail cell. 

So it is with this flimsiness that one sets about to sully a man’s reputation?  By virtue of seeing his name in print, Clemens might never be elected to the Baseball Hall of Fame much less ever pitch in another major league game.  It will also severely ruin his chances of obtaining endorsements or other business opportunities that might normally be enjoyed by a professional athlete of his caliber after his career. 

With this in mind what does Roger Clemens do? Obviously that will be a decision between him and his attorney. But if I were in Clemens’ shoes and knew I had done no wrong I would call a press conference not only to deny the charges, but also to announce the filing of a lawsuit against George Mitchell as well as Brian McNamee for defamation. I am well aware that defamation is extremely difficult to prove in an American court.  Yet a lawsuit would at the very minimum accomplish two things.  It would first demonstrate that Clemens is willing to stand up to Mitchell. Second, it would force public scrutiny on the Mitchell Report and expose its shortcomings. It would go a small way in restoring Clemens' personal and professional reputation.

Of course, there is always the possibility that Brian McNamee is telling the truth and Roger Clemens isn’t. I would hate to see in fifteen years from now an aging Clemens on a primetime news magazine tell the world he should have been more forthcoming sooner while promoting a book he has just written. Can anyone say Pete Rose? It also isn’t to say there aren’t legitimate objectives in trying to change the culture of Major League Baseball, where the use of performance enhancing drugs is as verboten as gambling.  However, so long as American justice is guided by the principle of innocent until proven otherwise, I am giving Roger Clemens the benefit of the doubt. The “evidence” presented against Roger Clemens in The Mitchell Report is insufficient to warrant public ridicule and ruin to which he is now being subjected.

Culture: Sports

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