Comments like these from Schilling, however ill-advised, are what makes me genuinely believe that he's PED-free. Therefore, if he were to be outted as a PED user it would be hilarious.

Make it so.

BTW, I really enjoy Schilling's take on Canseco. Yet again, the old blowhard does a better job of understanding and summarizing the guy than 95% of sports journalists.

One players take on the Mitchell Report, Canseco, Clemens, records

I was hoping he'd just say "Wheew that was a close one!"

I'd like to suggest that all fans including Schilling ask a competent lawyer with experience in matters like this (i.e., probably not Lucchino, and definitely not Epstein or George Mitchell) for a serious opinion rather than a talking head reaction as to whether, assuming Roger is being truthful, he is or is not more likely than not to win a lawsuit given the burden of proof and legal standards for a case like this.

Without analyzing that, it is shortsighted to suggest that is what needs to be done.

The funny thing is Schillings blog is the only one I know of that quantifies every article at the start with something like "these are my opinions and mine alone and if you don't like them then stop reading"

Isn't the point of a blog to put forward the opinion of the blogger? Sorry, I just think its odd that he always has that at the start.

Personally I like the fact that he just sticks that big fat neck out there. I hate his politics, his god and his declining fastball, but I do respect his gumption.

I thought that was a really nice post. Schilling is a standup guy.

That next year we were playing against SF and he hit a home run in the bottom of the 9th inning off of me to tie a game (1993), and stood at home plate for about 3 days

As near as I can tell, From BB-REF pitcher-batter index, St. Barry had more RBI against Schilling than anyone else he batted against (21), and only Maddux and Smoltz gave up more than the 8 dingers that Schilling did.

Sounds like a clear case of bias to me.

I'd like to suggest that all fans including Schilling ask a competent lawyer with experience in matters like this (i.e., probably not Lucchino, and definitely not Epstein or George Mitchell) for a serious opinion rather than a talking head reaction as to whether

I imagine finding a lawyer with experience in handling libel cases is not terribly difficult. But finding a lawyer with experience in handling this case's idiosyncrasies (e.g. false statements in a report sanctioned by the the sport's commissioner and tied to a federal investigation into illegal activities) is probably limited a handful of people in the US... if that. I wouldn't be surprised if there are a good number of posters here with a JD, but I doubt any of them have the legal experience to offer a serious opinion in the complexities of handling a libel suit against Mitchell.

"In at least one of those years, enough steroids users would be disallowed from Cy consideration that I'd win one. Looking at my contracts from then, there's money to be made..."

Mitchell is not the only potential target here. The owners and McNamee himself might be, no?

the 4 Cy Youngs should go to the rightful winners and the numbers should go away if he cannot refute the accusations

Well, absolutely. I mean, I'm sure Curt can prove he never used PEDs either, right?

I must say, this was an unusually good piece from Schilling (despite my distaste for Schilling).

Scream all you want about the testing program in MLB but there isn’t a test in existence that can identify the the presence of HGH with any amount of accuracy."

I don't believe Schilling is right, here. The World Anti-Doping Agency (WADA) has this on its website:

Does a test for hGH exist?
􀂃 A test for hGH was first introduced at the 2004 Summer Olympic Games in Athens, Greece. The test to detect hGH abuse is a blood test.

Is the hGH test reliable?
􀂃 The current test is reliable.
􀂃 Another test, in its final development stage, will be combined with the current test to further enhance the detection window for hGH abuse.
􀂃 The concepts and development of both hGH tests have been systematically reviewed by international independent experts in such fields as hGH, endocrinology, immunoassay, analytical chemistry, etc. In addition, these tests are the outcome of nearly US$6 million in research over the course of more than 10 years.

WADA also outlines some of the health consequences which may result from HGH:

What are the side effects of hGH abuse?
􀂃 Commonly reported side effects for hGH abuse are: diabetes in prone individuals; worsening of cardiovascular diseases; muscle, joint and bone pain; hypertension and cardiac deficiency; abnormal growth of organs; accelerated osteoarthritis.
􀂃 In untreated acromegalic individuals (known for pathological over-production of hGH), many of the symptoms described above are observed and life expectancy is known to be significantly reduced.
􀂃 Because of the role that hGH plays in stimulating IGF-1 secretion, excessive use of hGH may also lead to metabolic dysfunction, including glucose intolerance and other side effects associated with excess levels of IGF-1.

"And don't get me started on the time Barry used loaded dice to beat me at ASL."

I agree with about 90% of his post. "Erasing" records is the height of silliness, and he makes Jose without roids sound like Ozzie with less talent. Other than that, pretty spot on. In fact, one of the best takes on McNamee's motives I've read. Probably the best.

This is not really my blog and not really my opinion so, whatever:
I'm surprised that this has not been full of more of the vehement hatred for Schilling. Must have been a SoSH Bot that recreated all your answers.

Hey, I heard The Met has landed more talent this winter than the Mets...

They didn't raise prices either.

The owners and McNamee himself might be, no?

Yeah, Robothal mentioned going after McNamee instead of Mitchell. He said, "Such a strategy, though, could backfire because Mitchell and MLB, bound by a common interest with McNamee, might resist Clemens' attempt to disconnect them from the trainer and help pay for McNamee's defense."

WADA has a blood test for HGH, but it only detects it if it was taken within a few hours of the test, according to the quotes by Christiane Ayotte (head of the WADA-certified testing lab in Montreal). That could be why no athlete has ever tested positive for HGH in any sport.

New York Times article:
http://tinyurl.com/yum3vm

I'd like to suggest that all fans including Schilling ask a competent lawyer with experience in matters like this (i.e., probably not Lucchino, and definitely not Epstein or George Mitchell) for a serious opinion rather than a talking head reaction as to whether, assuming Roger is being truthful, he is or is not more likely than not to win a lawsuit given the burden of proof and legal standards for a case like this.

Somewhat an aside, but two of these guys are not like the others...

Lucchino is a top-tier lawyer who was a partner at one of the top litigation firms in America and extraordinarily successful at it. If he can't unravel a complex litigation question, there's close to no one in America who can. Mitchell is not quite as accomplished a lawyer but was a very well-regarded one (and was a US Atty) before getting into politics full-time. Doing something later outside of litgation, as each of them has done does not change that these are very serious, and well-regarded, litigators.

Epstein, I think, you have correctly categorized as not really having signficant legal experience.

Look, Clemens would be an idiot to hire someone like me because of my relative lack of experience, but it's not as if we're dealing with a complex legal standard here.

Potential causes of action: defamation against Mitchell and/or MLB over the report or against McNamee for the statements to Mitchell/MLB for what went in it.

Required showing: that the statements are false and that, because Clemens is a public figure, were made with actual malice. Some damages would be nice too, but that shouldn't be too hard to figure out.

Prognosis: pretty piss poor. Mitchell is reporting what others have said under circumstances which gave rise to an indicia of credibility (threat of false statements charges). There is no prima facie basis for malice here. Sure, I suppose you could concoct one (let's see; MLB is looking to torpedo salaries and smear players to help them with collective bargaining or something, so they intentionally and maliciously commission a report with the intent of generating false statements in an effort to smear Rocket). Good luck with that.

Against McNamee: better than with Mitchell (motives for his statements murkier) but highly unlikely to get anywhere.

So even if Roger could prove the negative (i.e. that he did not use), he's going to have a near impossible task to satisfy the actual malice standard. The smart play: simply realize that all that exists at the moment are one man's allegations and the inability to prove them either way and thus deny them with equal authority (i.e. one man's word).

That's what Clemens has done. It's over.

Nice opinion Mr Shilling IMO.

People may hate the fact he's a blowhard but at least he stands up(unlike many Pro Athletes and just plain ole Americans) for his friend, his fellow ballplayers, his convictions (whether we agree with them or not is irrelevant), readily admits his bias and statements as opinion (or that he doesnt yet have all the facts).

Yes, hes a multimillionaire so he get a better, bigger soapbox than us. As a fan, gamer, former gamestore owner (Sell me some loaded ASL dice!!!) the only thing I can attest to IMO, is that when I've met him he's seemed genuine and honest, his blog is spot on for this topic.

Its is actually a good read (except for his type formatting on occasion), more athletes should attempt blogging

Thank you for spelling that out, Craig. Now let's see who groks that, who decides it's more fun to ignore it and continue making much ado about nothing anyway, and who prefers to continue blustering about imaginary defamation suits with little understanding of what defamation, legally, actually constitutes.

For the record, I'm inclined to believe McNamee/Mitchell about Clemens, but I have no factual basis for that, and I certainly don't think that even if it turned out to be flat bold lies, Clemens could sue for defamation.

Scream all you want about the testing program in MLB but there isn’t a test in existence that can identify the the presence of HGH with any amount of accuracy."

Oooh, kevin can email him, or post at his blog to "lay a trap" for him on what he thinks the problems witht eh test are.

Awesome.

I agree nearly completely with Schilling. His was a bold and well-put statement. Good for him, and good for baseball.

I agree nearly completely with Schilling. His was a bold and well-put statement. Good for him, and good for baseball

Well, I was in some degree of agreement with him for awhile, before I realized I was only about a third of the way through and moved on to something else.

actual malice

Remember, actual malice in the defamation context has precious little to do with malice as it is currently understood.

Here "malice" does not bad motive or evil intent. It means that the speaker has actual knowledge that the statement he is making is false, or has published it with reckless disregard for whether it is true or not -- a higher standard than negligence.

For Mitchell, unless he either (a) totally fabricated the fact of an interview with McNamee or (b) had good reason to believe that McNamee was deliberately blowing smoke, I do not see how it would be possible to state a claim against him. The first did not happen, and as to the second, he would seem to be pretty thoroughly shielded by the concept that McNamee was under pressure to tell the truth by the Feds

For McNamee, it is a much clearer picture. If he is lying, he knows he is lying.

For McNamee, it is a much clearer picture. If he is lying, he knows he is lying.

So just to be clear - you're saying that if Clemens sues McNamee, all he would need to do would be to prove that McNamee lied (even once?) and that would prove libel?

Clemens must be glad that he helped to turn Schilling's career around. Nice of Schilling to give him the benefit of the doubt.

As Craig demonstrates very well above, this mediafanboy fantasy that if Clemens is telling the truth then he must sue and win is idiotic at best.

WADA has a blood test for HGH, but it only detects it if it was taken within a few hours of the test, according to the quotes by Christiane Ayotte (head of the WADA-certified testing lab in Montreal). That could be why no athlete has ever tested positive for HGH in any sport.

So, in other words, all baseball players should have to hire a team of testers to be with him at all times and test his blood every 4 hours, 365 days a year.

It's the only way we can protect the sanctity of the records of amphetamine users who probably didn't use steroids to the extent of later players and players who had the benefit of not having to play against dark-skinned players baseball's greatest players.

Don't forget bat corkers, Dan. Why won't you think of the children?

One interesting tidbit: Schilling wrote this after A-Rod's denials, right? He says that Canseco never accused anyone who didn't later turn out to be dirty: I wonder if Schilling thinks A-Rod cheated?

If you plan on writing some idiotic off the cuff rant slanted one way or another feel free to close the page now, it will be deleted. The opinion I am offering is mine and mine alone. Regardless of whether you view it as right or wrong it’s my opinion from what some might call an insiders perspective.

"Hey, listen, this is my opinion, so don't go messing it up by sharing your opinion." Does he have a warning like this is every one of his posts?

Everyone is entitled to my opinion.

Please remember this. At a Congressional hearing you are sworn in and any and everything you say can be used for future actions against you or someone else unless you are granted immunity, even with immunity if you lie you lose that right. Everything I had as an opinion to that point, and for the most part now, was thought, opinion, conjecture. Having to this day never seen anyone inject steroids or HGH, I was in no position to speculate, nor would I.

Hey, remember when I said that I would pat guys on the butt and they would tell me that I shouldn't do that because they had just shot up steroids? That was "conjecture."

The two men that fingered multiple players, from my understanding, both testified with immunity, but only if they told the truth.

Yes, only if they told the truth... or said something that no one could possibly disprove. Do people even think for a second before they write something like this?

Keep in mind that it's not a certainty these guys are public figures, and that changes the standard tremendously (it's a lot easier to win a defamation case if you aren't a public figure). Many are perhaps most likely to be limited purpose public figures (for baseball purposes, e.g. will still likely have to satisfy actual malice standard) and some perhaps not even that. Clemens is, I agree, almost surely a public figure though himself.

The proof problem isn't quite as bad as proving he never used; you can show a very poor process in developing the facts (such as William Westmoreland showed in his case, ultimately settled for a reported big dollar number, or Carol Burnett who actually won one). It's actually kind of rare for a defamation defendant to rely on truth as a defense, because proving it either way is so difficult. The cases are generally about process. If you can prove truth, obviously, that's an absolute defense but keep in mind that 'truth' includes all the subparts and elements of a report about someone, and those often are all hard to prove conclusively.

Which leads one to the likely same conclusion that post 19 made: the prognosis for such a suit is very, very poor. The chances that Mitchell's process wasn't reasonable is pretty darn low and thus, the chances you can make actual malice and the rest of the standard for defamation is pretty darn low.

If I were going to represent one of the accused I'd spend more time on the other privacy torts (public disclosure, maybe false light) than I would on defamation.

So as a fan my thought is that Roger will find a way in short order to organize a legal team to guarantee a retraction of the allegations made, a public apology is made, and his name is completely cleared. If he doesn’t do that then there aren’t many options as a fan for me other than to believe his career 192 wins and 3 Cy Youngs he won prior to 1997 were the end.

I'm sorry, this really annoys me. Someone as smart as Schilling obviously knows that he has many more options. The most obvious one being to decide that he'll never know the truth.

The chances that Mitchell's process wasn't reasonable is pretty darn low and thus, the chances you can make actual malice and the rest of the standard for defamation is pretty darn low.

I agree, it seems like a defamation case would be a non-starter against Mitchell, but from what Srul said, is the same true of McNamee? Now, granted, McNamee probably can't pay anything, but if Clemens sues, I would think that the point isn't about the money - he's surely a wealthy man and he's almost certainly retired so how much in monetary damages could there realistically be? If Clemens sues, the point is to get a court to declare that McNamee lied and/or to make his case that he's never used.

I agree with the idea that a failure by Clemens to sue shouldn't be held against him as any kind of evidence that he used, but it does sound to me like a decent case could be made in favor of Clemens suing - assuming, of course, that McNamee's lying.

First, defamation law is not terribly complex, and there is nothing about the factual circumstance that adds levels of complexity. I imagine what Srul does on a daily basis is much much more complex. Also, he's not going to toot his own horn, but he has handled litigation that is far more complex, would be financed way higher, has much more press coverage and much more expensive than any potential defamation suit.

I am less familiar with any specific actions that Nieporent handles, but I'm highly certain his current matter list has more complex items than a defamation case.

Second, Srul is correct on the standard regarding malice. Its a bonus if you show animosity or grudges, but its the standard of the speaker's knowledge of the falsity of the statement that is used as the basis of proof.

Third, Clemens does not:

(a) have to prove a negative (and that phrase has become a bad cliche like "luck");
and more importantly
(b) does not have to prove he never juiced.

In most jurisdictions, he just has to show that one of McNamee's statements is false by a preponderance of the evidence.

Thanks, BL.

There's a couple issues with going after McNamee.

First, you have a serious proof problem...you can't really go after the process with him as you do with a typical media defamation defendant since there is no process---he's the person making the statement. Thus, you are left basically with proving that what he said was false. Whether he injected TCM is effectively a he said/she said situation and that won't be enough....what set of information (especially given Pettitte's admission) could you possibly put forward to meet the standard against him? You'd pretty much need to record McNamee telling someone that he made it up out of whole cloth.

Second, it's possible that the statements being made as part of an official criminal investigation will shield McNamee himself, e.g. that in the context McNamee made them a privilege may apply. This also opens him up to a 1001 charge if you can convince the feds he lied, but presents a challenge to the defamation claim. Statements made in court have an absolute privilege from defamation, IIRC, and there's some caselaw suggesting that statements pursuant to a criminal investigation do as well I believe. Someone else probably is more current on that stuff than i am, but at one time that was the thinking at least.

Backlasher is understating defamation law a bit, I think, but I agree it's far from the most complex thing going, too. There are more things going on than just proving one fact by a preponderance though, and that's why Clemens' situation here is pretty unappealing from a litigation perspective.

In most jurisdictions, he just has to show that one of McNamee's statements is false by a preponderance of the evidence.

While I agree with (a) and (b), I would think that it would be damn hard even to show that these particular statements are false with even a lesser requirement. McNamee's statements in the Mitchell report aren't all that specific with details that can really be rebutted with anything more than denials.

Let's turn it around. If we assume that McNamee's lying in his specific statements about injecting Clemens, what conceivable evidence could reasonably exist that could clear Clemens? At least of the Mitchell report statements, there's only one instance that's even pinned down within a time frame of less than a couple of months, nobody else witnessed any of these events, and McNamee is established as being in contact with Clemens.

All I can see that could possibly exist is a denial from Clemens and the fact that McNamee's story changed dramatically from his previous recitation of events.

I essentially agree with Schilling. If a player cheated by taking PEDs, he should lose his awards, stats, and I think he should be banned for at least a year. That would be a real deterrant from cheating.

With Pettitte's confession, it is getting harder and harder to believe Clemens.

If someone was digging through his garbage the way they were digging through Bonds' for all these years, they'd probably have some more proof by now.

First, everyone in the report accused of juicing is going to be a public figure. They may be an involuntary public figure, but the nature of the accusation is going to make them a public figure, and not a limited public figure. Regardless, this is pretty moot to anything for any of the people under discussion. Even if they are not a public figure, its still a matter of public interest.

Second, Mitchell is not an officer pursuant to any executive or judicial investigation. As discussed elsewhere, there may be a qualified privilege on statements made to Mitchell, but said privilege requires the same level of intent of the speaker on the falsity of a statement as "actual malice."

Third and most important, as discussed elsewhere, you do not need a recorded statement by McNamee saying he is lying. You are correct that my statement about Preponderance may not be true. You may have to bring clear and convincing evidence based on the nature of these statements. Still, you need to bring forward facts that show what he said is false. If you have said recording, you don't even need a lawsuit, you can just play the damn tape on the news to get the relief you want.

Fourth, no one, at any time, said that it would be easy. Its going to be near impossible if McNamee told the truth.

Fifth, a privacy tort is going to be next to impossible to make AND HARDER THAN DEFAMATION. With false light, you are going to have to prove that there is a misleading IMPRESSION. With public disclosure you are going to have to prove that a felony crime and the biggest event in baseball since the Black Sox is not newsworthy.

i wonder if a defamation case, even one likely to be ended in failure at the summary judgment state, wouldn't be good for a players public image. if the entire thing is entered into with the notion that it's a nigh unwinnable case, but your integrity needs to be satisfied, why not do it? it's not like someone such as Clemens is hurting for cash and can't afford it.

also, re: people posting rants on his blog- he never says they can't do it, he just says not to do it in his comments section. that's eminently reasonable.

i like schilling. i think he can leap before he looks too often once in a while, but he seems like a genuinely decent guy who i can respect despite my drastic disagreement with him on some issues. that he ####### pwn3d the yankees in the postseason a couple times doesn't hurt at all.

Szym,

I think you are on the right track. One of the first things you can use is any contradictory statements. (Clemens does have the benefit of being consistent). I mentioned this in the other thread, but:

(a) Any medical information Clemens may have that shows he was not taking steroids during this time;
(1) MLB Test reports;
(2) If he was injured, lab work that suggests the lack of steroids
(3) any medicines or treatments that have contraindications and the lack of those contraindications
(4) Medical records showing lack of anabolic effects (no increase of lean muscle)
(b) Any information that shows McNamee did not have the access
(1) Other trainers (e.g. late night massage guy)
(2) Statements about any individual schedules

(c) Any information showing he lacked supply
(1) Compare supply amounts with Radomsky
(2) Use through other assinjenctions to other

etc.

Its not an easy case, but it can be made.

Also, remember, if you sue, YOU GET DISCOVERY. YOU GET TO DEPOSE THE PARTY, YOU GET INTS; YOU GET RPDs. You can nail him to more specificity and show the more specific statements are false. I linked the Murphy case, but that's how the reporter was dissected:

(a) Couldn't list times when things occur
(b) Alleges certain actions that others contradict

Enough of those and the person can look like a lying sack of sh1t. The problem here with most is that proof to most of you means BEYOND ANY DOUBT WHATSOEVER. And that's not how it works. Moreover, no plaintiff's lawyer is ever going to empanel someone if they even have a soft clue that is what the person is thinking.

The vast majority of society believes liars lie, and if you make the defendant a liar, you then only have to put enough of a case to meet the minimum standard. Once the hearts and minds are won, its clear sailing.

Like Jose, Barry was represented by Beverly Hills Sports Council and I was invited to a dinner along with Gary Sheffield to celebrate Barry’s 2nd or 3rd MVP. By the way that was just about the only time I’ve ever interacted with Sheff and he was the kindest, most polite guy I had ever met. Incredibly well spoken and incredibly respectful and kind.

Schilling must not watch the news if he doesn't know that it's a no-no to call a black man "well-spoken."

Whether he injected TCM is effectively a he said/she said situation and that won't be enough...

Why won't it be enough - at least potentially? Civil cases come down to he said/she said all the time, and the witnesses tell their stories and get cross-examined and the jury make up their mind as to where the balance of probabilities lies.

Hey Schill, since when is it guilty until proven innocent? Roger doesn't have to sue them to prove anything. People can think whatever they want, but in order to take away his awards and 'make his numbers go away' MLB is going to need more of a case than McNamee's uncorroborated testimony and circumstantial evidence.

Note to 47: I'm not saying Clemens should sue (even if the statements are false). It would obviously be very risky in a lot of ways and maybe there's very little gain for him. And I wrote it before I saw 43 and if it's not a mere balance of probabilities then obviously it becomes harder. But I think BL points out nicely in #45 that there's no reason Clemens can't win (assuming the statements are false and/or there isn't other damaging material about Clemens that would come out).

Schilling must not watch the news if he doesn't know that it's a no-no to call a black man "well-spoken."

Haven't you heard? Well spoken is ok, just don't call him humble.

Thanks BL, I knew you could think of more. Not sure all of those are really practical for this particular case, but I'm definitely underestimating the value of deposition.

Still damn hard, though, for Clemens! Another hard part is that if Clemens can prove McNamee is lying, the general public widely suspected Clemens of being a loser before anybody ever heard of Brian McNamee. Even if McNamee is lying, it might be better for Clemens to wait out the hoopla rather than keeping it alive.

Unless, perhaps, if Clemens won a case against McNamee, the general public is stupid enough to think that it was proof he didn't use steroids? After all, we're already seeing some people think that the Mitchell report also concludes who <I>wasn't<i> using steroids.

If Roger Clemens (or Barry Bonds for that matter) reacted to the allegations the way Bo Jackson reacted when he was falsely accused, I would have a tendency to believe the Rocket Roider. But his first coming out with some crap from his agent and then publishing a paragraph which reads like it was written by his PR team makes me even more doubtful. Clemens has denied all requests for interviews. Rather than shouting from the mountain tops that he is innocent and threatening to sue anyone who claims otherwise, he has reacted like a man who has something to hide.

The same goes for Bonds. He never threatened to sue over the content of Game of Shadows when it came out. He threatened to sue to stop it from being published in the first place. Definitely not a Bo Jackson moment for Barroid.

CHICAGO -- Bo Jackson filed a defamation lawsuit Wednesday against a California newspaper that quoted a dietary expert who said the former two-sport star used steroids.

The lawsuit was filed in Cook County against the Inland Valley Daily Bulletin, MediaNews Group Inc., MediaNews Group Interactive, Inc., sports writer Jim Mohr, who is now sports editor, and three other employees of the newspaper.

"I've got nothing to hide," Jackson said at a news conference before the White Sox's game against the Cleveland Indians. "If anyone wants to check into my medical past, go get blood tests, go check up on those blood tests and see if there was any anabolic steroids in it. You're more than welcome."

Jackson is suing for unspecified general and punitive damages. His lawyer, Dan Biederman, also said they want the newspaper to print a retraction.

I don't believe Bo. I played Tecmo Bowl and feel that Bo must have been on every drug known to man, including drugs not invented at the time.

"Whether he injected TCM is effectively a he said/she said situation and that won't be enough..."

What is TCM?

Turner Classic Movies? Traditional Chinese Medicine? Teledyne Continental Motors? Training Christians for Ministry? Toomre Capital Markets? Trinity College of Music? Teaching Children Mathematics? Topographic Change Mapping? Transportation Control Measures? Thomas Crosbie Media? Tech Council of Maryland? Technology Costing Methodology? Texas Chainsaw Massacre? Toolkit for Conceptual Modeling? Theory of Condensed Matter? Total Credit Management? Transport Company of Macau? Total Colon Makeover? Theory of Chewy Macaroni? Tasty Cold Manure? Thick Chocolate Milk? Turd Colored Mangoes?

Let me get this straight, there are two possible scnarios:

1) scenario 1: Clemens actually used, but he could still actually WIN the lawsuit?
2) Scenario 2: Clemens is clean, but he'd still lose the lawsuit?

I assume that if they pull Clemens' Cy Youngs, Schilling will be just as happy to return all the financial and other benefits he received from playing with Lenny Dykstra?

I'm sure that as a fan of the game, Schilling is in fact concerned with the effect of PEDs on the legacy of the sport. That being said, this does feel a little calculated and deliberately over-simplistic, in a "I want to have sound bites ready for when I run for office" sort of way.

So just to be clear - you're saying that if Clemens sues McNamee, all he would need to do would be to prove that McNamee lied (even once?) and that would prove libel?

No. He would need to show that McNamee had "actual malice" as that term is used in defamation law -- that is, that McNamee knew it was false or said it with reckless disregard for whether it was true -- and that the statement was not "substantially correct."

Obviously if McNamee never injected Clemens and he says "I injected Clemens," then the actual malice is satisfied; he knows it's false. But if he says, "I injected him with Winstrol" and it was really Deca, then he's in the clear, even though the statement is false.

I think you are on the right track. One of the first things you can use is any contradictory statements. (Clemens does have the benefit of being consistent). I mentioned this in the other thread, but:

[...]

The vast majority of society believes liars lie, and if you make the defendant a liar, you then only have to put enough of a case to meet the minimum standard. Once the hearts and minds are won, its clear sailing.

Well, we do have contradictory statements here; while Clemens has been consistent, McNamee has not. In the past, he denied these precise claims, if I remember the quote someone recently posted in one of the other threads.

But I don't think that this, standing alone, would be sufficient for Clemens to prevail. (McNamee: "I lied before to protect my client, but now that I was legally obligated to tell the truth, I had to admit it.") So Clemens would need some of the other items you listed. But while all of them are good pieces of evidence in the abstract, I don't know how realistic they are to acquire. It's not clear to me that medical records -- other than the actual results of a steroid test -- would be very telling. And if he actually did dose Pettitte, then he obviously had the drugs themselves, so you can't catch him that way. What you really want is an associate of McNamee to testify that McNamee privately denied it at the time he was doing it. (Of course, if you can show that McNamee can't identify the birthmark on Clemens' ass, that would be a slam dunk.)

I think I would've read this post with less anger and more agreement if I hadn't read him demean my love of country in three previous posts.

i like schilling...that he ####### pwn3d the yankees in the postseason a couple times doesn't hurt at all.
I assume that if they pull Clemens' Cy Youngs, Schilling will be just as happy to return all the financial and other benefits he received from playing with Lenny Dykstra?

And let's not forget that Schilling was the pitcher who would have lost the 2001 World Series until he was bailed out by Randy Johnson and Luis Gonzalez, neither of whom has ever been rumored to have used anything stronger than manly determination. Now if you'll excuse me, I'm off to the Dominican to have a deliciously refreshing mystery milkshake.

when are we going to start addressing the fact, that many studies, and many players, claim the hgh doesn't even work.

if it doesn't work. how is it cheating?

the 4 Cy Youngs should go to the rightful winners

Any guess on who the rightful winners would be?

1997 - Randy Johnson
1998 - Pedro Martinez
2001 - Mike Mussina (Freddy Garcia?)
2004 - Randy Johnson

Even with PEDs, I don't think Roger deserved those last two.

My take on Schilling and steroids: he gives all kinds of mixed messages on this to me. On the one hand, he's been very vocal in being against them but, on the other, he tries his damndest to get the message out to the fans that the players are being unfairly tarred.

He's trying to have his cake and eat it too. He reminds me of Stephen A. Douglas on the issue of slavery.

I like this quote:

I would argue that most of the people calling his character into question are doing so because they can’t relate to someone possessing integrity and an unbiased opinion in his position.

Gee, Curt. Who would they be? You'll never find any of them here...

And I disagree with this:

As it pertains to this report it means absolutely nothing. These three guys were man enough to admit they were caught, made a huge mistake, and asked for forgiveness.

They really didn't. I think they lied about the reasons and to what extent they did what they did and tried to minimize what they did to a degree where they could say they weren't cheating, when they all know damned well they were.

I agree with a lot of it, but you just can't go around erasing records. The NCAA does this, and it is stupid and it doesn't work. Go ask an Ohio State fan if they have a Final Four banner up from 1992.

The Blacksox numbers are in the books, and that is a far more egregious crime. Oh, and I disagree that one must always sue for defamation if named by Jose. I don't see what ARod has to gain, for example.

1997 - Randy Johnson

If we go by McNamee's account, Roger's 1997 is safe. McNamee first got a crack at Roger's ass in the middle of the 1998 season.

(Of course, if you can show that McNamee can't identify the birthmark on Clemens' ass, that would be a slam dunk.)

Just what we need. The whole case comes down to a detailed account of Roger's butt.

30. JC in DC Posted: December 19, 2007 at 10:15 PM (#2650380)
One interesting tidbit: Schilling wrote this after A-Rod's denials, right? He says that Canseco never accused anyone who didn't later turn out to be dirty: I wonder if Schilling thinks A-Rod cheated?

This past week he made a comment publicly that he was ’shocked’ that Alex Rodriguez was not mentioned in the Mitchell report? Based on what he has said and done he was clearly saying to me that he has personal knowledge of Alex as it relates to PED’s? How can he do that? Are we at a place where people are ok with names being thrown out this callously is ok? I hope like hell Alex stops anyone from mentioning his name as it relates to this and legally shuts up Jose from mentioning his name anymore as it relates to steroids or PEDs.

As I said before, I disagree with this. I don't see what ARod has to gain by getting into a long drawn out legal battle.

McNamee first got a crack at Roger's ass in the middle of the 1998 season.

Did you really have to use the term "crack" there, AROM. Of all the alternatives you had, did you really have to pick that one? Now I'm on full bore image-purge mode.

You're welcome.

I agree with a lot of it, but you just can't go around erasing records. The NCAA does this, and it is stupid and it doesn't work. Go ask an Ohio State fan if they have a Final Four banner up from 1992.

The Blacksox numbers are in the books, and that is a far more egregious crime. Oh, and I disagree that one must always sue for defamation if named by Jose. I don't see what ARod has to gain, for example.

Strip the awards. They do this all the time in the Olympics (see Marion Jones). Strip the awards. Give Mussina his Cy Young: it makes me and DMN happy. How often can that be accomplished?

PEDs or no, wasn't Mussina better than Clemens in 2001?

I agree with a lot of it, but you just can't go around erasing records. The NCAA does this, and it is stupid and it doesn't work. Go ask an Ohio State fan if they have a Final Four banner up from 1992.


Ohio State has a long history of claiming bogus championships in football. Are they really hanging a banner after the NCAA stripped them of the accomplishment? If so, we need to alert the NCAA, so that the banner is taken down.

They can do a special broadcast, and invite their oldest living alumni, Greg Oden, to the event.

PEDs or no, wasn't Mussina better than Clemens in 2001?

Yes, but he came on late to get his numbers, which is part of why his W-L record is what it is and why fans didn't think that highly of his year, IIRC.

They can do a special broadcast, and invite their oldest living alumni, Greg Oden, to the event.

Have to admit you were right about the Oden/Bowie thing, BL. At least so far.

WADA also outlines some of the health consequences which may result from HGH:

As long as Dick Pound is in charge of WADA, that group will have less than zero credibility. That guy practically wants to make Tylenol a performance enhancer. He's never met an athlete he wasn't sure was on drugs.

While we are at giving out awards to non cheaters lets give Burt Hooton (1978 NL) and Wilbur Wood (1972 AL) a call to give them their Cy Youngs.

I can't believe that no one has mentioned Schillings's fantastic performance at the Congressional hearings. Or does no one else remember his lead up of "Everyone except is doing steroids, I see it in the clubhouse all the time" transforming to "I have no evidence as to anything that I may have said before, and I was just talking out my ass". Honestly, this just strikes me as another example of Schilling just wanting to hear himself talk (or write), without risking being called on it.

Have to admit you were right about the Oden/Bowie thing, BL. At least so far.


He's gained thirty pounds and is a "Workout Wonder" according to Jail Blazers trainers. His response, "I'm thinking it's natural, it's just my time to put on some weight," he says. "I'm young and it happens to everyone. I'm eating good . No fatty foods. I have cereal and a protein shake for breakfast. If I go to McDonald's, I'll get the barbeque wraps, maybe the chicken nuggets. "

Why does every quote from the guy deal with his age?

My question is, if you did nothing wrong, and know of no crime being committed, why would you have to go to jail? What information would you possess that would land you in jail for failure to disclose? If you are innocent, and no one is hiding anything, why is anyone going to jail? More importantly to me, how good of a friend would I be if I allowed someone I considered to be my friend to go to jail for me? What does that say about me? What does that say about my guilt/innocence? If I haven’t committed a crime why would anyone I am friends with have to go to jail for failure to answer questions about me or my activities?

These are all excellent questions, Curt.

I think BL was completely off on that comparison. If you'll look, Bowie actually played, and played quite well in his age 30 season.

Something about repeating a lie until everyone believes its true?

I can't wait till Robert Parish comes out and admits that as a child, he learned everything he knew about post play from Greg Oden.

What's more interesting to me, BL, is his "I'm thinking it's natural..." comment, as though he's not sure it's all the eating and working out, or the creams being rubbed on his legs. But, the youth are usually not up on all the latest science, so his confusion can be excused.

I can't wait till Robert Parish comes out and admits that as a child, he learned everything he knew about post play from Greg Oden.

I've heard rumors that Oden scored Parish his first dime bag.

as though he's not sure it's all the eating and working out, or the creams being rubbed on his legs.

His trainer told him it was just dog pee. Link WARNING: Kevin you do not want to read, Oden states the most overrated NCAA team is "North Caralina"

I can't tell if JC, BL, and kevin are accusing Oden of taking steroids or if the whole discussion is just going over my head.

After last night's C's-Pistons game, I retract my bold prediction that the C's would win the East easily.

After last night's C's-Pistons game, I retract my bold prediction that the C's would win the East easily.

It would/will be fun to see these two play a seven game series.

The 2001 CYA would go to Mulder, not Mussina.

I was just raising the question of whether Clemens deserved the CY at all, PEDs or not.

WHO IS THE MOST OVERRATED TEAM IN COLLEGE BASKETBALL THIS YEAR?

Oden: I think it is North Caralina but that could just be because they beat Ohio State this year, so im hating, but let me know your thoughts.

You want my thoughts? YOU WANT MY THOUGHTS????

Eat #### and die, you injury-prone Medicare-eligible stiff!!

Dick Clark was always the world's oldest teenager, though it seems time has finally caught up to him. Greg Oden is the world's youngest octogenarian.

The 2001 CYA would go to Mulder, not Mussina.

Mulder would probably get the award (seeing as he actually finished 2nd in the voting) on the strength of his 21 wins and Oakland's second-half surge. Garcia and Mussina topped him in the important categories, though, and I think they deserve more consideration.

The 2001 CYA would go to Mulder, not Mussina.

Is the question who finished second to Clemens or who actually was the best pitcher? Mussina beats Mulder, better ERA with less defensive support. I'd consider ERA leader Freddy Garcia, but he was helped by historically great defense in Seattle that year.

Under the premise that Clemens would be forced to give the award back, the only relevant issue is who would get the award in his stead. That person is Mark Mulder. I don't think MLB would say, "Oh, I guess we'll give it to the guy who won the Internet Baseball Award."

Mulder would get the award, and he would be a fine choice.

First, everyone in the report accused of juicing is going to be a public figure. They may be an involuntary public figure, but the nature of the accusation is going to make them a public figure, and not a limited public figure. Regardless, this is pretty moot to anything for any of the people under discussion. Even if they are not a public figure, its still a matter of public interest.

Second, Mitchell is not an officer pursuant to any executive or judicial investigation. As discussed elsewhere, there may be a qualified privilege on statements made to Mitchell, but said privilege requires the same level of intent of the speaker on the falsity of a statement as "actual malice."

Third and most important, as discussed elsewhere, you do not need a recorded statement by McNamee saying he is lying. You are correct that my statement about Preponderance may not be true. You may have to bring clear and convincing evidence based on the nature of these statements. Still, you need to bring forward facts that show what he said is false. If you have said recording, you don't even need a lawsuit, you can just play the damn tape on the news to get the relief you want.

Fourth, no one, at any time, said that it would be easy. Its going to be near impossible if McNamee told the truth.

Fifth, a privacy tort is going to be next to impossible to make AND HARDER THAN DEFAMATION. With false light, you are going to have to prove that there is a misleading IMPRESSION. With public disclosure you are going to have to prove that a felony crime and the biggest event in baseball since the Black Sox is not newsworthy.

1. They are likely at least limited-purpose public figures, as I said before. It is not true that this is a certainty. Ditto 'matter of public interest' I think it's better to note that these things are probabilities because, really, they just aren't certain and would be aggressively litigated. The most likely designation for the minor players is limited purpose public figure, I believe, as it is not all that easy to be found to be a public figure in all contexts. Clemens is likely a public figure, as would be Bonds and probably McGwire.

2. The statements made to investigators and reported by Mitchell are the ones I think likely are privileged.

3. I did not say you 'need' a recorded statement by McNamee, I said that is one type of proof I could imagine would be sufficient to realistically win the case. What I'd ask you is, realistically, what short of that do you think you could actually win this on? I don't think there's many possibilities, which is why I named that one.

4. I think it's questionable whether false light is harder than defamation---effectively, the differences between them is that you don't need to prove falsity, only misrepresentation, to succeed in false light (at least in some jurisdictions) which is a more favorable situation on these facts, and there's an argument as to what constitutes 'public' status. It's very hard, though, I grant you that. I don't understand your comment on public disclosure---the named players have not committed a felony, thus I think you are misstating what the issue is. I do agree it's a tough case becuase of the profile of the issue overall, obviously, as I noted before as well.

(1) No, they are not "limited purpose" They may be involuntary, but the issue makes them a public figure. Their is a difference between these two things and both are different from an all purpose public figure.

(2) And as previously stated, if they are, then its a qualified privilege, and that is overcome with actual malice (the exact same thing needed for the public figure, which makes this very moot).

(3) Answered above.

(4) I don't think its questionable at all. Most every one of the named players would have committed a felony if the testimony is correct. The issue on public disclosure of private facts torts is that its going to be next to impossible because of the newsworthiness of the issue. The issue on false light is that the statements have lead a misleading impression. That is going to be much harder because the impression is that the person is a juicer (which is the same as the statement).

I don't think that was misstated in any way.

i am still confused about the legal stuff here - sorry.

i am still not understanding how it would be possible for clemens to win a libel suit against mcnamee - i get that the probability he could win against mitchell is zero because of what "malice" mean legally.

suppose you are clemens lawyer

- suppose he says to you that mcnamee made the whole thing up - lied to mitchell
- suppose he says to you that he was actually with mcnamee at those times but that injecting/taking illegal roids didn't happen
- suppose he says he didn't never have any blood tests of any kind during those years (no proof)
- suppose all clemens can give for evidence are a bunch of people who say him nekkid/almost nekkid and he didn't have no backne.

how could you win? (i am understanding that clemens is a "public figure")

BBC, if you suppose away all the possible evidence, then he can't win. BL was saying that Clemens could win if some of the evidence that McNamee was lying existed.

BBC,

I agree with David, you didn't leave me too much to work with. The only thing left is exploring supply channels:

(1) Where and how much did McNamee obtain and
(2) Where and how much did he distribute.

You could show it was impossible that McNamee had enough supply to service Clemens, but that could also be problematic. I'd have to go back and look at the report, but IIRC, McNamee alleges that Roger did the BYOS- Bring your own steroids, i.e. He carried around juice and needles like a high school boy carries around a condom. Therefore, that is going to be pretty hard.