Monday, December 17, 2007

Random thoughts on the Mitchell Report

I haven't read it all yet - I've been reading random sections - but I actually think it's a pretty reasonable document. I'd have liked to see more blame put on Selig and Fehr, who really let this mess get as out of hand as it did, but I don't thing there's anything even remotely "witch-hunt" about it. The media coverage of it is another matter (my guess is a large percentage of Americans think there's a section titled "The List"), but it's not really a newsflash to say "the media sucks". And what were the alternatives? There's "do nothing" and there's "Congressional investigation"; neither are appropriate in my mind. Anyway, a couple scattered thoughts, in no particular order:

- I can think of at least one upside to this whole thing: it makes the whole PED issue less tainted by questions of race. My guess is that huge discrepancy in the polls on how blacks and whites see Bonds's treatment (and even innocence) may shrink somewhat. You can't really argue that only African-American superstars are being targeted anymore...

- Lots of people are asking the question of whether Clemens should sue baseball for libel and/or slander. Most ignore a sorta important fact: if the statement is true, it's not defamation. It's really that simple. If Clemens took PED's the way the Mitchell Report says, then a lawsuit simply will not work. [It should be noted that the reverse is not necessarily true: if the statement is false, it still might not be defamation. You have to prove malice, etc etc. So Schilling's argument - basically that not suing is the same as admitting guilt - is complete BS.]

- I simply don't understand HGH. There's no evidence it helps with anything - i.e., maybe it's not a PED at all - but yet players clearly believe it does. Maybe there benefits not covered in the medical literature? Maybe a placebo effect? Also, some websites are saying HGH wasn't considered a controlled substance (and wasn't banned by baseball) until 2005 - is that right? If so, then why were players so secretive about it? None of this makes sense to me.


  1. I hate to agree with Schilling and I do know that to prove slander, you have to prove that you printed something that you know is not true. BUT, for the sake of argument, if Clemens did not do the things that McNamee indicated, why would Clemens not investigate his legal options? I'm sure Mitchell believed what he wrote was true (hence slander is not a likely win), but couldn't he find something, anything or offer some proof that would demonstrate that McNamee lied? Wouldn't you make some legal effort to clear your name? I'm sure rog would never get a conviction on Mitchell (a public figure), but with McNamee, its an entirely different burden of proof.

    But then again, he did it so so much for that theory. Andy did not help Roger's argument very much.

  2. Right, but if he didn't do it, the only way he can successfully sue for slander in the US is to prove "knowledge of falsity or reckless disregard for the truth" (Wikipedia says the case is New York Times v. Sullivan). So he can't sue Mitchell/MLB (unless they knowingly lied about him, and/or knew McNamee was lying). But maybe you're right that he can sue McNamee? That's an interesting point that I haven't seen elsewhere.

    Defamation law in the US is actually interesting because it gives some cover to people like Clemens - he can say "it's not true, but since slander is so hard to prove, I'm not going to waste my time and money and sue."

  3. Also, each player named in the report was told about it on numerous occasions, and the players' union was also informed. Each one could have denied any part of it, but didn't until the report came out...maybe they were hoping that MLB would censor the specific names...who knows?

    No one would/could win that lawsuit.

  4. Exactly. Nobody can win against Mitchell/MLB. But Clemens could absolutely sue McNamee, who is not a public figure or newspaper or whomever. And if he was lying about giving it to clemens in the butt (steroids, that is), to an investigator (presumably umnder oath), he would know that he could be causing harm to Clemens.

    And McNamee's defense would include calling Pettitte to the stand and asking him if/what he knew about Roger and drugs.

    So Clemens could sue McNamee and show that he lied or even have not a single person corroborate the lie under oath, Clemens may not win a defamation or slander suit, but he could go along way toward clearing his name and make one at least consider the idea that McNamee perjured himself.

    All of this is academic since Clemens obviously is guilty. Again, I know it does not prove a songle thinkg, but if he was innocent, don't you think it would be him denying it instead of his lawyer.

    But yes, I agree, the laws to prove salnder are very difficult indeed.

  5. How long before Debbie Clemens is on TV crying about how unfair this is. Just like when Boston booed her husband.

  6. I find it interesting that the piece in the times that links Loduca and Segui to almost all the cases, has Larry Bigbie as major player and another argument suggests that Bigbie got involved in distribution. Why do I find this interesting? The Sox were going to trade for Bigbie at the 2005 deadline. I think the player was Shoppach, but the deal was squashed at the last moment, allegedly having either Henry or Lucchino taking the heat for the fact that Theo changed his mind.

    I guess we should be thankful that guy did not show up at Fenway.

  7. I wonder, though, if Mitchell and/or his team members (hehe...members) laid out the full story to each player, the players' union, or the agents of how each person was implicated and by whom. My guess is that they were told exactly what was in the report.

    I can't see Mitchell literally including uncorroborated stories and hearsay in a report. This thing cost 20MM bucks to put together. I am sure much of that money went to a legal team that ensured they would not be including anything in the report that could come back to bite them.

  8. I think that's right. Buster Olney's been making Brian Roberts the poster boy for players unfairly accused. (He's in the report only because of something Bigbie said.) But today Roberts admitted he took steroids once in 2003, just as the report said.

    Hee hee! This is sort of fun, actually. Turns out the ones who look worst in this whole thing are the media.

  9. This is awesome. C.J Notwitski comes to McNamee's defense! Earl didn't you have C.J. on your 2000 GYS roster at the end of the season?

  10. Again, these guys must be lying...You don't take steroids one time. What's the point of that? Same with HGH. Doesn't make sense.

    You can't lift once and get muscle's an ongoing process.

  11. Well, here it is from Clemens:

    "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."

    This from the same guy who said he would never leave the Red Sox and even if he did, it would only to play closer to home and that he could not imagine signing with an AL team and coming through Fenway in another uniform as it would disrepect the fans.

  12. Maybe he's using the Jim Leyritz definition of "take". Someone else injected the stuff into his butt, and therefore he didn't take them.

  13. Also..."any other banned substances". He probably took roids before they were banned by baseball...Then switched to HGH later, etc...

  14. I guess we could parse these statements all we like, but (as you pointed out already) a lot of them are probably simply lying. They're not under oath, they're not perjuring themselves, so they might as well say whatever's best at this point.