Sports Law: February 2008 Archives

Our friend and colleague Michael McCann of Sports Law Blog has an interesting piece on the disastrous decisions of the legal team for Clemens in a new column at SI.Com.

This appeared first at Sports Law Blog.

My Verdict

As I wrote earlier, this hearing was not going to be like the last one. We heard some tough questioning, though hardly skillful cross-examination; we saw previously obtained affidavits; we heard the opinions of differing medical experts; and we learned there were syringes and gauze that are yet to be examined for their authenticity and probative weight.

Now we can begin to deliberate.

What are we to make of the affidavits from Mr. and Mrs. Pettitte? According to Chairman Waxman’s opening remarks, this is devastating to the credibility of Clemens. But was it? Pettitte recalls that when he confronted Clemens with his prior “admission” of past HGH use, Clemens immediately said that was not what he had told him, that only his wife had taken the drug, and that he never did? That is certainly consistent with the testimony of Clemens today. And if he had previously admitted to such use to Pettitte, and if they were so close, why would Clemens deny what he had said five years earlier? I find it just as credible that Pettitte simply misunderstood Clemens’s earlier remarks but in good faith still believed he had accurately recalled what Clemens had told him earlier. Of course, the earlier conversation was before Mrs. Clemens had taken HGH but the questioning was not very sharp on this point. Mrs. Pettitte’s affidavit doesn’t add anything to the mix because all she knew was what Pettitte told her.

The syringes and the gauze are more troubling. If DNA testing confirms it is the blood of Clemens on an object laced with either steroids or HGH, these objects may be the equivalent of Monica’s blue dress. But the absence of a controlled chain of custody probably makes the evidence inadmissible in any criminal prosecution and the reason for that calls into question the probative value of the evidence. Why would McNamee keep such evidence and only of Clemens? Why did he not reveal such evidence to prosecutors breathing down his neck or to Mitchell and his staff but suddenly produced them after he admits he was furious at Clemens for playing their taped conversation and revealing to the public the details of his sick son? I find no credible answers to these questions that would allow me to trust the authenticity of the objects.

Finally, whose testimony had the ring of truth based on their body language and demeanor and motive for being deceitful? The one qualification we all have as jurors is our ability to assess the credibility of witnesses based on our experiences in every day life. But that is a tool with varying degrees of sharpness. All of us have rightly judged someone a liar but we have all also been deceived once or twice.

Here McNamee is an admitted serial liar not only to the authorities but also to the press, his friends and his employers. Clemens, on the other hand, certainly has greater motive to lie; his reputation and legacy have been placed on the line.

For what it is worth, I remain unconvinced of Clemens’s guilt. I would have to believe if Clemens did what he is accused of doing more evidence would be out there: records of his purchase of the illegal substances, medical evidence of his steroid use, the testimony of his trainers or close friends, something more than what we have. Given the amount of resources spent to uncover this evidence, and believe me too much money and time has already been spent, such evidence if it ever existed would have surfaced.

So I find in favor of Mr. Clemens. Tell me why I am wrong.

Alan Milstein

In today’s

Alan Milstein

This appeared today over at Sports Law Blog.

Let me disagree with Howard. I think this week is the Super Bowl or should I say World Series of Sports Law. When Roger Clemens faces off against his accusers and testifies before Congress, all of us get to be jurors and render judgment on his guilt or innocence and on the quality of the work of the DLA Piper lawyers who served as prosecutors.

This will not be like the last Congressional hearing which was devoid of any tough questions or hard evidence. The post-Mitchell Report activity of Clemens--whether ill advised or not--has raised the stakes so that his integrity and legacy (read that Hall of Fame nomination) will be on the line this Wednesday.

For the 20 million dollars MLB reportedly spent for the Mitchell Report, it received a product that was, in my view, underwhelming. While it accused 90 or so players of taking currently banned substances, except for Clemens, most were lesser lights or already retired and hardly proved baseball and the free world were so infected by the steroid plague that a Congressional hearing was justified. And the supporting evidence Mitchell and his team gathered was embarrassingly weak, relying on the untested word of two locker room trainers, both of whom had incentive to appease the authorities and name big names.

Now Congress has had time to send out its own investigators armed with the one tool Mitchell did not have, subpoena power. If any corroborating evidence is out there, we should see it Wednesday. Whether it takes the form of documents like medical records or testimony of witnesses such as Pettitte or other confidantes of Clemens, definitive and probative evidence should exist and be available if Clemens did what Mitchell and McNamee claim he did.

What this also means is if no such evidence is produced and we are left with Clemens’s word against McNamee’s, then we should render Clemens innocent of the charges and give him back his good name. Not just because, as he said on 60 Minutes, he deserves it for his years of proving he is one of the great pitchers of all time, but because “facts are stubborn things” such that if Clemens engaged in this activity he would have left proof of it in some form other than the word of McNamee.

With all the serious issues facing this country, Congress has chosen to conduct this show trial on what I see as a nonissue. So be it. Now either throw strikes or walk off the mound.

Alan Milstein 

This appeared first at Sports Law Blog.

To say this is an interesting time for the field of Sports Law is a bit of an understatement.

Now we learn Major League Baseball in its never-ending quest to taint its own product has been sending investigators out into the south to inquire whether neighbors and acquaintances of umpires know whether the men in blue have ever donned the white robes of the KKK.

This is so wrong on so many levels. As someone who watched 150 odd games last season, I can attest that at no time did I ever think any umpiring decision was racially motivated. Could the powers that be have seen anything else that could have led them to suspect such foul play?

And why just southern umpires? Does Baseball believe an umpire from Kentucky is more likely to be a racist than an umpire from Massachusetts? As Lamell McMorris, a spokesman for the World Umpires Association, aptly put it: “To try to link our umpires to the Ku Klux Klan is highly offensive. It is essentially defaming the umpires in their communities by conducting a very strange and poorly executed investigation. It resembles kind of secret police in some kind of despotic nation.”

The main offense here, as I have repeated often in this forum, is treating those in major league sports differently than the way we treat those in any other profession or the way we would ever want to be treated ourselves. Whether it is subjecting them to blood and urine tests, creating a system where entry level employees have no say in where or for whom they will work, prosecuting them for crimes which would otherwise go unprosecuted, or conducting highly offensive background checks in their neighborhoods, those in professional sports seem not only to receive tremendous compensation for their excellence but to pay plenty for it.

Alan Milstein