Monday, January 7, 2008
Clemens' proactive lawsuit is both propaganda and profile
By Lester Munson
Three words describe Roger Clemens' lawsuit against Brian McNamee. Two of them are nouns: profile and propaganda. One of them is an adjective: proactive.
The profile: What Clemens offers in the lawsuit filed Sunday night is a detailed listing of his feats as one of the great pitchers of all time. He devotes 10 paragraphs and five pages of his 14-page lawsuit to career highlights that go back to his days in high school. If he's that good as a pitcher, the suit suggests, how can anyone think he is lying about steroids?
The propaganda: The suit includes both a reminder that Clemens was "raised primarily by a single mother who worked several jobs" and an attack on McNamee as a suspected rapist who could not find work until Clemens hired him.
Both the detailed profile of greatness and the propaganda are highly unusual
in a civil lawsuit that claims defamation and seeks money damages. Most
lawyers file papers that are lean and spare in their descriptions, hoping to avoid
a nasty backlash and expecting to add details as the suit progresses.
But the adjective is the most important here. The lawsuit is a "proactive" strike against McNamee. Clemens filed his case in Houston, his home court, where his lawyers have enjoyed extraordinary success. When McNamee gets around to filing his countersuit, he is stuck now. He must file it in Texas, the forum selected by Clemens and his lawyers.
As a profile of Clemens' greatness, as propaganda, and as a proactive strike, the lawsuit does more than seek monetary damages for defamation. It is part of a deliberate and planned campaign of defiance of the charges in the Mitchell report, a campaign that included Clemens' interview with Mike Wallace on "60 Minutes" and his press conference on Monday afternoon and that will continue with his appearance before the U.S. House of Representatives next week.
The detailed description of Clemens' baseball career is very uncommon in a defamation lawsuit. Clemens wants everyone to remember how great he is. In a lengthy description of his first 20-strikeout game in 1986, it includes a quote from his manager: "I watched perfect games by Catfish Hunter and Mike Witt, but this was the most awesome pitching performance I've ever seen." The suit doesn't name the manager, keeping the focus on Clemens. (For the record, the manager of the Red Sox in 1986 was John McNamara.)
It even reminds us of the statement Red Sox general manager Dan Duquette made in 1996 when Duquette failed to re-sign Clemens and let him go to Toronto. Duquette famously said he wished Clemens well in the "twilight of his career." Just in case anyone has forgotten, the lawsuit reminds us that Clemens won the Cy Young and the pitching triple crown in his first year with the Blue Jays.
When he won only seven games for the Astros in 2006, the suit makes sure we know it was because of "low run support." It may be the first time in the history of American jurisprudence that "low run support" has made it into a legal document.
The propaganda touches in the suit include a description of a rape investigation in Florida that involved McNamee. It is highly unlikely that any mention of the rape investigation would be made in a trial of the Clemens case; but apparently, it was important to Clemens and his attorneys to let us know that McNamee "lied to police officers and refused their requests for evidence." No charges were ever filed against McNamee.
The lawsuit also accuses McNamee in dramatic terms of changing his story to federal investigators and to Mitchell. Clemens calls McNamee's decision to tell what he thinks is the truth a "recantation," and suggests that it came only after threats of jail and a "cold war era interrogation."
With the profile and the propaganda come dramatic statements of what McNamee and the Mitchell report have done to Clemens. Their allegations, Clemens asserts, have "captured the attention of the nation, fueled rampant speculation and irreparably tainted the reputation of one of baseball's hardest working and most talented pitchers."
If that's the damage to Clemens, the damage to McNamee is just beginning. Clemens' proactive filing leaves McNamee in a bad spot. Not only must he respond to Clemens in Texas, he is up against Clemens' formidable resources. In litigation, money matters -- and Clemens will clearly have the edge over McNamee.
If there was any doubt about Clemens' rage against the Mitchell report, the lawsuit resolves them. Clemens is on a campaign of denial and defiance.
It might work. But if there is a smoking syringe out there somewhere, it won't.
Lester Munson, a Chicago lawyer and journalist who has been reporting on investigative and legal issues in the sports industry for 18 years, is a senior writer for ESPN.com.