Barry Bonds to Sue Game of Shadows Authors, But NOT for Libel

Attorney Michael Raines, who represents Barry Bonds, plans to file a lawsuit against the authors of "Game of Shadows" (Mark Fainaru-Wada (top) and Lance Williams (bottom)) alleging that they violated California's Unfair Competition Law by using "illegally obtained" grand jury transcripts in writing the book. The lawsuit will ask for damages at least equaling all profits generated by the book's sales. We recently discussed the book and its allegations on Sports Law Blog.

Perhaps more interesting than this lawsuit is what it isn't: a libel lawsuit. If Bonds used steroids and lied about it under oath, a libel suit would have been disastrous for him. A court would have to weigh the veracity of the book's allegations, as truth is a defense to a libel charge. In other words, and fairly or unfairly, Bonds not suing for libel might intimate an admission on his part as to the book's claims, for if those claims weren't true, then Bonds would presumably sue for libel; the fact that he hasn't seems telling (especially since he is obviously willing to sue the authors on another ground -- it isn't like he has an aversion to litigation). Granted, libel claims are extremely difficult to prove, and that is especially true for public figures, but is that really the reason why Bonds isn't suing for libel?

As to the unfair competition claim, this lawsuit will focus on how the Fainaru-Wada and Williams obtained the grand jury testimony (an ostensibly safer topic for Bonds personally). Interestingly, according to an excellent article by attorneys at the law firm of Stroock & Stroock & Lavan, the California Unfair Competition Law (California Business and Professions Code Sections 17200 through 17209) is the state's most frequently used consumer protection statute, with the number of related cases by both private and governmental plaintiffs increasing from year to year. The law is especially popular because, unlike other unfair and deceptive practices statutes, intent is irrelevant, as a "Section 17200 plaintiff" is not required to show that the defendant actually intended to injure anyone. Moreover, a viable Section 17200 claim can encompass any unlawful, unfair, or fraudulent business act or practice, and, meaningfully, a practice can prohibited as "unfair" or "'fraudulent" even if it is not unlawful. And if the practice is unlawful, a plaintiff does not even have to show that the plaintiff was actually injured. In other words, the California Unfair Competition Law is very favorable for plaintiffs.

But will it be favorable enough for Bonds? That remains to be seen, and we can be sure the attorneys for Fainaru-Wada and Williams will attempt to shape the lawsuit in a way that could force Bonds to answer the book's charges. In any event, the bigger story appears to be that Bonds has sued the authors of Game of Shadows and it isn't a libel suit.

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