Does it mean anything if Clemens and Pettitte don’t sue?

The multi-sport steroids scandal of 2005-200? has involved a considerable amount of tea-leaf and between-the-lines reading. For instance, journalists (and occasionally bloggers) compare “before” and “after” photos of suspected users to make the case that they are scientifically enhanced. Mark McGwire—though he never admitted steroid use—is presumed guilty based on his pleading what has been called the “fourth and a half amendment” while testifying before Congress. Barry Bonds’s decision to sue the authors of Game of Shadows for illegally leaking grand jury testimony signaled to some that Bonds did not want to face a defamation trial where “substantial truth” would constitute a defense. Some have speculated that Lance Armstrong’s failure to denounce former teammate Floyd Landis even after Landis was proven a liar signaled that Landis had “the goods” regarding Armstrong’s own possible past use.

Yesterday, in the latest twist on L’Affair du Grimsley (see previous posts here, here and here), the New York Times reported the list of names that had earlier been “blacked out” of a report that included statements attributed to caught-red-handed HGHer Jason Grimsley. Among the names were some surprises. Pitchers Andy Pettitte, Roger Clemens, and former MVP Miguel Tejada were named by Grimsley. Pettitte and Clemens immediately denied the allegations; many have rushed to Pettitte’s and Clemens’s defense, although to some, the pitchers’ denials will no doubt ring as hollow as those of Landis or finger-waggerer Rafael Palmeiro.

Clemens has already threatened legal action “if it affects sponsorship of his charitable foundation”; so far, no similar threats from Pettitte or Tejada. But accused steroid users have explored suits before. Now laugable, Rafael Palmeiro made noises about suing Jose Canseco after being accused of steroid use. Marion Jones, the most prominent accused athlete really cleared of steroid use, is also noteworthy for having filed a defamation suit against her accusers (and obtained a presumably favorable settlement). Bo Jackson also filed suit against a newspaper that accused him of steroid use. If Pettitte and Clemens don’t sue, is there anything we can safely conclude? That is, could we “read” into a failure to sue the kind of confession we have all read in to McGwire’s non-denial?

The answer is no. At first blush the two seem to have an open-and-shut case for “defamation per se” against Grimsley, assuming Pettitte and Clemens, as they have claimed, never used steroids. A false statement concerning another’s capacity to adequately perform at his trade or profession or an allegation of criminal misbehavior involving moral turpitude are both defamation per se – per se in the sense that the plaintiff need not show actual damages (i.e., loss of a job, inability to get into the hall of fame). It is therefore a bit odd that Clemens threatened legal action only if his charitable foundation is threatened, since damage would not be a required element for a defamation per se suit.

The problem for Clemens and Pettitte? First, as public figures, they can only recover for defamation if the defendant had actual “malice” or reckless disregard as to the truth of a statement. In addition, some courts have found an absolute privilege bars defamation suits regarding statements made to law enforcement officers. So, given that their suits are likely losers (not to mention that Grimsley will likely be close to judgment proof after he pays his own legal bills), it will be hard to read much into a decision not to sue.

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