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Monday, April 28, 2008
Updated: April 29, 8:03 AM ET
Allegations unlikely to see court, but could trouble Clemens

By Lester Munson
ESPN.com

Roger Clemens says country singer Mindy McCready is a family friend. Others have told the New York Daily News that Clemens was involved in a decade-long affair with McCready after the two reportedly met when Clemens was a 28-year-old Boston Red Sox pitcher and she was a 15-year-old singer.

Attorneys for Brian McNamee, the trainer who says he helped Clemens use performance-enhancing drugs, suggest that the sensational allegations will somehow help them defeat a slander and defamation case Clemens has filed against McNamee.

The trainer's lawyers argue that Clemens is claiming "purity" and a sterling reputation, and they can now use the supposed McCready affair to prove the contrary. The allegations about McCready and the response from McNamee's lawyers raise a series of legal questions.

Here are some of the questions and their answers:

Question: How can McNamee's lawyers use an affair with a singer to show that Clemens was lying when he said he had never used performance-enhancing drugs?

Answer: They can't. Even assuming that the allegations are true, it is unlikely they would ever become evidence in a trial.

It is easy to understand why Richard Emery, McNamee's lead attorney, would exult in the allegations and claim that they will help McNamee. It's always fun to see your opponent in a bad spot.

However, the issues in the Clemens defamation suit are whether McNamee lied and whether the lies damaged Clemens' reputation. Emery asserts that the supposed affair shows that Clemens was always a bad guy with a bad reputation.

But the allegations are brand-new. They have never before been reported. And timing is important here: Clemens' reputation at the time of the McNamee statements is the reputation that matters, not the reputation he suddenly has now. The romance is not material to the two main issues in the defamation case.

Bottom line: The evidence of any romance will not be admissible if the Clemens defamation case ever progresses to a trial.

Q: What is the worst that can happen to Clemens and his lawsuit as the result of the reports of the romance?

A: McNamee's lawyers will be able to investigate the allegations. Their investigation will include taking a deposition of McCready. They will be permitted to "discover" what McCready says, a routine part of the preparation for the trial of any civil lawsuit.

That deposition could be humiliating and embarrassing for Clemens, particularly if it is on video and released to the public. McNamee's lawyers will be permitted to ask McCready how and when she met Clemens, and they will be permitted to ask for the details of the relationship.

But the scope of investigation and discovery is much larger than the scope of the evidence that will be permitted at the trial. They can inquire. They can force McCready to answer intimate questions. But they will not be able to use the fruits of their inquiry in the trial.

Professor Geoffrey Stone of the University of Chicago Law School, a nationally recognized expert on First Amendment and defamation issues, told ESPN.com: "It is not at all obvious to me how something like this could ever be admissible in the trial of his defamation case."

Q: Is there any possible way for McNamee's lawyers to succeed in making the McCready allegations relevant to the issues in the Clemens lawsuit?

A: Maybe. If McNamee's lawyers can prove that an affair actually began when McCready was underage, it would be evidence of the crime of statutory rape. In some courts, evidence of a crime, even if the person was never charged, can be used to show that an individual (Clemens) is a person who cannot and should not be believed. The evidence of the uncharged crime can be used to show that the individual has reduced credibility.

If a judge presiding over the trial of the Clemens lawsuit adopted that theory of the law, it would be the end of Clemens' lawsuit.

Q: What is the total effect of these tantalizing allegations on Clemens' defamation case?

A: It might lead to the end of the lawsuit. Even though the evidence is almost certainly inadmissible, the reports of the romance add to a series of problems that have plagued the suit.

McNamee's attorneys have raised a powerful argument that Rusty Hardin, Clemens' lead attorney should be disqualified from participation in the case (see April 14 story).

And even with his assertions that McCready is a family friend, Clemens cannot be looking forward to an investigation and eventual deposition of McCready. He could avoid all of this and any future embarrassment by dismissing the case now and cutting his losses.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.