Can The Rocket Sue For Libel?

Mass Media law in the United States includes the tort of defamation (libel and slander) and is a surprisingly thorny subject matter. In fact, there are lawyers who devote their entire professional careers just to this subject. One question that immediately popped into my mind when I heard months ago that former U.S. Senator George Mitchell would be, by Major League Baseball (MLB) Commissioner Bud Selig’s request, publishing a steroid report encompassing past alleged use by certain baseball players based largely on the uncorroborated hearsay of trainers, clubhouse attendants and former players, was whether or not any of the report’s implicated players would ultimately take legal recourse against the League itself to help repair their unjustly tarnished names. While it was clear from the beginning of Mitchell’s “investigation” that MLBPA chief executive Donald Fehr was directed by Selig to assume the fetal position on the matter (which he did–a surprisingly timid move by one of most powerful Unions in the history of civilization), that did not mean that a player could not theoretically take matters in his own hands through a private cause of action, wholly separate from any Union-backed grievance. Although Mitchell himself was apparently granted carte blanche by the League (i.e., they agreed to insure him against legal recourse), the last time I checked, the League had some pretty big pockets that might tempt a zealous attorney.

Minneapolis attorney Marshall H. Tanick weighed in on the matter in yesterday’s Minneapolis Star Tribune and, in my opinion, summarized the issues quite nicely. In short, the hurdle (burden of proof) for players like Barry Bonds or Roger Clemens to clear in such a lawsuit would likely be too great, given the standards set in place by modern jurisprudence. Below are the highlighted, key portions of Tanick’s commentary:

1. Players pursuing [libel] claims would face monumental obstacles. A suing ballplayer would have to prove that statements about him in the Mitchell report were false. Claimants who pursue libel litigation put their lives, including their character, at issue. It often leads to exposure of other unpleasant facets of their lives. They are subjected to intensive investigation. And the costs of libel litigation can be enormous.

2. In many cases, those making defamatory statements are clothed with what are known as legal “privileges,” or justification that bars litigation. Statements made in government reports or as part of judicial proceedings usually are immune. However, the Mitchell report was not part of any official government inquiry, but was commissioned by MLB.

3. Ballplayers may have to confront other obstacles as well. Under the rule known as the New York Times standard (from the famous 1964 case, NYT Co. v. Sullivan), “public figures” cannot prevail in libel cases unless they show that the statements were made with knowing falsity or reckless disregard for the truth (i.e., “actual malice,” an extremely hard burden to shift). Satisfying this high standard is usually difficult.

For now no suits have been filed and players like Clemens are instead utilizing their agents’ (The Rocket is represented by Randy Hendricks) rather drab denials in lieu of legal recourse. Given the harrowing legal standards in play, it’s likely that former Senator Mitchell, and anyone else for that matter, can continue to take potshots from the sidelines against whomever they see fit, using only the flimsiest of evidentiary standards as their arsenal.

A black day indeed for the game.