Steroids in Baseball: The Legal Implications of the Mitchell Report

Posted by Eriq Gardner

Former Senator (and DLA Piper partner) George Mitchell has finally released his report detailing the use of performance-enhancing drugs in Major League Baseball.  A few thoughts from the legal perspective :

(1) Who knows whether the report will actually rid steroids from the game of baseball...But based on the noise we hear, the Mitchell Report may be one of those moments (like the OJ Simpson trial) where everyone suddenly becomes interested in legal arcana like the admissibility of certain types of evidence in determining guilt. How many more e-mails will cross our e-mail box like this one: "What a completely irresponsible report. Total heresay! Clemens should sue!!"? (Then again, maybe we know too many over-caffeinated Yankees fans.)

(2) Clemens lawyer, Rusty Hardin, should review his law school torts casebook. In reaction to the news, Hardin said, ""(Clemens) is left with no meaningful way to combat what he strongly contends are totally false allegations. There has never been one shred of tangible evidence that he ever used these substances and yet he is being slandered today." (emphasis ours).

To review: "Slander" equals oral defamation. "Libel" equals written defamation. The Mitchell Report is written.

(3) Hardin is also wrong. Clemens does have a meaningful way to combat false allegation. He's a public figure with tremendous access to the media. Because of this, a defamation case would be very difficult to make, absent some showing of "actual malice." Jack Balkin has an excellent post on his blog describing these high standards that follow celebrities in bringing defamation cases.

Finally: (4) Albert Pujols, call your lawyer. Although celebrities have tough thresholds to cross to prove defamation, journalists must avoid "reckless disregard for the truth." Yesterday, several media outlets including CNBC and Deadspin ran a false list of baseball players named in the report. That could lead to something. (But probably won't.)