Steroids and Roger Clemens

Yesterday, speaking through his agent, Roger Clemens

said

, “I want to state clearly and without qualification: I did not take steroids, human growth hormone or any other banned substances at any time in my baseball career or, in fact, my entire life.”

Last week, speaking through his attorney, Roger Clemens called his accuser Brian McNamee a troubled individual who is an unreliable witness not to be believed.

So while his teammate Andy Pettitte has come clean about his HGH use, admitting that he has lied to the media in the past, Clemens sticks to the hard line. Denying. Denying. Denying.

Just like Barry Bonds.

(A brief digression. Andy Pettitte lied last year and said that he never used HGH. Now he’s saying he only used it a couple of times. How do we know that he’s not lying now?)

I’ve been looking over the Mitchell Report. Again. It’s really a dry, dry read. If you’ve got insomnia, I recommend you read this instead of going to a doctor. It will work better than any drugs. Trust me on this. But Roger Clemens occupies a number of pages of the report – nine, to be exact. For any who want to actually read report, start with page 167 and read through page 175. It’s all Roger. All of the time.

But before going further, there are a few things to know.

The man accusing Clemens of steroid and HGH usage is Brian McNamee. McNamee’s had quite the varied life. He played college baseball at St. Johns. For three years he was a cop with the NYPD. He was then hired to be the bullpen catcher and batting practice pitcher for the New York Yankees. Joe Torre dumped him from this job in 1995, and from 1995 to 1998, McNamee worked as a personal trainer for athletes. McNamee was hired as the Toronto Blue Jays strength and conditioning coach in 1998. And it was with the Blue Jays where McNamee met one Roger Clemens.

Another thing which must be known before reading the Clemens section of the report. While investigating Kirk Radomski – who would later plead guilty to the distribution of anabolic steroids and money laundering – the Feds identified McNamee as a Radomski customer and sub-distributor. McNamee entered into a written agreement with the U.S. Attorney’s Office for the Northern District of California – those are the same ones going after Barry Bonds – in which he would cooperate with the U.S. Attorney’s Office. As part of this agreement, he cooperated with George Mitchell and this report. And while no truthful statements can be used against McNamee, any statements found to be untruthful can result in criminal violations. (See also: Barry Bonds and prosecution of.)

Yes, I know, this is becoming as boring as the actual report. But it needs to be known that while McNamee’s cooperating in order to get a reduced sentence, the cooperation does no good if he lies.

Which gets us to Clemens.

McNamee and Clemens met, according to McNamee, in 1998 when both were with the Blue Jays and both were living at the hotel attached to the Toronto SkyDome. Another member of this Blue Jays team was Jose Canseco. Supposedly, after a meeting with Canseco, Clemens approached McNamee about using steroids. McNamee injected with steroids during the 1998 season.

Clemens joined the Yankees in 1999, but McNamee, supposedly at the insistence of Clemens, was hired by the Yankees as the assistant strength and conditioning coach in 2000. McNamee was paid by both the Yankees and Clemens. McNamee allegedly injected Clemens with steroids numerous times during that 2000 season. He also allegedly injected Clemens with HGH during this time. McNamee also allegedly injected Clemens with steroids several times during the 2001 season.

According to McNamee, Clemens did not use HGH or steroids after 2001.

Clemens denies any usage. And for several years, so did Andy Pettitte. Until Saturday. We now know Pettitte used HGH once, as McNamee said.

So what about Clemens?

Legally, Clemens has to be careful.

If the Feds come to question McNamee’s truthfulness, then the odds are they’re going to start questioning Roger Clemens. And the odds are they will be putting Clemens under some kind of oath so that his statements can be used against McNamee in court. But when under oath, Clemens himself is at risk, and if it’s determined he’s lying, then he risks falling into a Barry Bonds-type situation with the Feds.

Clemens’ attorney, Rusty Hardin, has been quoted by the Chron as saying that Clemens has no real available legal options at this moment. And truthfully, it’s doubtful that Clemens will ever have any available options.

Clemens hasn’t been charged with a crime, so there’s nothing for him to pursue there. That could only happen should he get mixed up in McNamee’s criminal proceedings. And Clemens can’t really sue for defamation.

Clemens is a public figure, and when it comes to public figures, a case for defamation is almost impossible to win. First, George Mitchell and/or Major League Baseball would use the ultimate defense: truth, because a person cannot be defamed by the truth. But if it’s found that McNamee was, indeed, lying, then Clemens would have to prove that Mitchell and McNamee acted with absolute malice: and to prove malice, Clemens would have to show that Mitchell acted with reckless disregard of the truth, or else knew the truth and chose to ignore it, i.e., that not only did they know McNamee was lying, but that they did not do everything reasonable to get to the truth.

And here’s why Mitchell/MLB will win this: there is no absolute malice. First, Mitchell attempted to interview Clemens regarding the allegations, but Clemens refused to speak to him. Second, Mitchell interviewed a witness provided by the Feds, and the Feds were vouching for the truthfulness of not only McNamee, but of the information provided by McNamee. So it will easily be argued that Mitchell/MLB did everything reasonable.

They spoke to the key witnesses. The truthfulness of the witnesses and the evidence were vouchsafed by the Federal Government. And they attempted to speak to the person who’s supposedly been defamed, but that person refused not only failed to rebut the allegations, that person refused to speak to the investigators.

If Clemens had spoken to Mitchell, and if Clemens had refuted the allegations, and if Clemens had provided evidence refuting said allegations, and if Mitchell had then went forward with his report and reported that Clemens used steroids, then Clemens would have a chance of winning the case.

But that did not happen.

And here’s how I know Clemens would lose any case for defamation against Mitchell/MLB. Do any of you remember the name of Richard Jewell? The so-called Olympic bomber. Only he wasn’t. But it didn’t matter that the Atlanta Journal-Constitution and NBC reported that Jewell was the bomber and essentially ruined his life. It didn’t matter because it was found that Jewell had become a public figure by saving some lives during the bombing. And it was also found that the media did everything possible in its investigation of the story because it relied on FBI and government sources.

So if Jewell couldn’t win his case, how in the hell can Clemens win?

Sure, it’s always possible that Clemens can sue McNamee for defamation. But Clemens is going to have prove McNamee is lying, and that’s going to bring about that whole testifying-under-oath thing.

We may never know the truth here. But speaking through attorneys and agents ain’t going to get it done for Clemens, and I’m betting he knows that. – John Royal


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