ENTERTAINMENT LITIGATION: UPDATE ON ROGER CLEMENS’ DEFAMATION LAWSUIT

JUDGE DISMISSES MOST OF CLEMENS’ CASE AGAINST FORMER TRAINER

In my prior post about protecting celebrities and their reputation, I commented on the defamation lawsuit that Roger Clemens brought against his former trainer, Brian McNamee. Clemens sued McNamee over McNamee’s statements to investigators led by former Senator George Mitchell, as revealed in the infamous “Mitchell Report” concerning drug use in Major League Baseball, as well as statements McNamee made to Clemens’ friend and Yankee teammate Andy Pettitte. As I previously wrote, a defamation lawsuit is a legitimate aggressive course of action to pursue — but one which requires complete assurance that the factual and legal grounds of the case is solid, not just an expensive PR gambit.

On February 12, a federal judge in Houston dismissed the majority of Clemens’ case against McNamee. Given the many embarrassing facts about Clemens’ character and reputation that have been revealed, and now the order which effectively guts Clemens’ case, the Clemens lawsuit is another example of that aggressive strategy gone awry.

CLEMENS FACES SERIOUS PROBLEMS GOING FORWARD

The judge dismissed all of Clemens’ claims for defamation which were based on McNamee’s statements to Mitchell Report investigators. The judge ruled that McNamee’s statements to the Mitchell report investigators were covered by his immunity deal with the government and that the Texas federal court did not have jurisdiction over those claims since McNamee made them while in New York.

The judge did permit Clemens’ claims based on McNamee’s statements to Pettitte to go forward. However, Pettitte has already gone on record that McNamee’s statements to him were true. Naturally, as a public figure, Clemens will be required to prove that McNamee’s statements were false and made with (at a minimum) reckless disregard for the truth.

That is a tough burden for any defamation plaintiff — and seemingly impossible for Clemens’ since Pettitte has acknowledged the truth of those statements. Also, according to published reports, Clemens may also be indicted for perjury for his allegedly false statements to Congressional investigators. Clemens’ lawsuit against McNamee does not look promising at this point.

LESSONS TO BE LEARNED

The Clemens lawsuit is another cautionary tale when considering the most aggressive strategy in response to embarrassing publicity. The filing of the case provided great press coverage favorable to Clemens. Clemens appeared strong, fighting for his reputation and willing to “go to the mat” to vindicate himself. However, while lawsuits provide great vehicles for public relations and positive press, the decision to file a lawsuit must be based upon solid factual and evidentiary grounds. The court process has a way of vetting claims without legal basis. And the resulting negative “PR” from a loss in court will far outweigh any positive spin gained from the initial filing.

You can read Clemens’ actual complaint here on ESPN’s website.