EPANEW YORK - Roger Clemens beat Brian McNamee to court, filing a defamation suit against the former trainer who claimed to have injected him with performance-enhancing drugs.
Clemens filed the suit Sunday night in Harris County District Court in Texas, listing 15 alleged statements McNamee made to the baseball drug investigator George Mitchell. Clemens claimed the statement were “untrue and defamatory.”
“According to McNamee, he originally made his allegations to federal authorities after being threatened with criminal prosecution if he didn’t implicate Clemens,” according to the 14-page petition.
Richard Emery, one of McNamee’s lawyers, said he would seek to remove the case to U.S. District Court in Houston, then to possibly shift it to federal court in Brooklyn.
“I think it’s dismissible on its face. I think it’s a press release for Clemens and his career,” Emery said. “The case is shoddy at best. The prosecutors acted completely professionally in this case. This is a very odd thing for me to be saying, but it’s the truth. Sometimes you are bound by the truth.”
The suit states that when McNamee told others that when he first was interviewed by federal law enforcement last June, he denied Clemens had used steroids or human growth hormone. The suit quotes McNamee as saying he was pressured by Assistant U.S. Attorney Matthew Parrella and IRS Special Agent Jeff Novitzky — key members of the BALCO prosecution — to implicate Clemens. The suit did not attribute where the quote from McNamee was obtained.
“After this exchange, and for the first time in his life, McNamee stated that he had injected Clemens with steroids in 1998, 2000 and 2001,” the suit said. “Following his recantation, McNamee has relayed that he magically went from a ’target’ in a federal criminal drug investigation to a mere ’witness,’ so long as he continued to ’toe the line.”’
The suit said that when McNamee initially refused a request from federal authorities that he speak to Mitchell, he was threatened with prosecution. Clemens said McNamee decided only then to cooperate with Mitchell, and the suit said McNamee told other the interview “was conducted like a Cold War-era interrogation in which a federal agent merely read to the Mitchell investigators McNamee’s previously obtained statement and then asked McNamee to confirm what he previously stated.”
Clemens asked that damages be determined by a jury.
“Clemens’ good reputation has been severely injured,” the suit said. “McNamee’s false allegations have also caused Clemens to suffer mental anguish, shame, public humiliation and embarrassment.”
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Emery also challenged Clemens’ assertion that he didn’t know in advance that he would be named in the Mitchell Report, releasing a pair of what he said were Dec. 11 faxes from Clemens and Andy Pettitte acknowledging a pair of private investigators worked for them.
Clemens could face several legal hurdles if the case went to trial, said Randall Bezanson, a law professor at the University of Iowa who has written extensively on defamation law.
In addition to the public figure argument, McNamee’s lawyers could contend that his statements didn’t qualify as defamation, Bezanson said.
“It could be claimed under common law used in many states that it’s privileged because it’s part of the government record,” he said.
Robert Kheel, a specialist in sports law at the New York firm of Willkie Farr & Gallagher, speculated Clemens could cite the suit as a reason he cannot answer some questions when he testifies before Congress.
The next step for the case will depend on each side’s strategy, said Kheel, the former lawyer for the National League. McNamee’s lawyers could file a motion to dismiss, which would tie the suit up in legal procedures for months. They also could choose to aggressively move forward in the case. That would mean Clemens would have to provide evidence such as medical records, but it also could force McNamee to reveal potentially damaging information.
The seven-time Cy Young Award winner sounded indignant and defiant in a segment of CBS’s “60 Minutes” broadcast Sunday night, his first interview since McNamee accused him. The two are approaching a potential confrontation if they testify under oath at a Jan. 16 hearing on Capitol Hill.
The most prominent player implicated in last month’s Mitchell Report, Clemens steadfastly maintained his innocence and called McNamee’s allegations “totally false.”
“If he’s doing that to me, I should have a third ear coming out of my forehead. I should be pulling tractors with my teeth,” said Clemens, who wore a lavender button-down shirt during the interview, taped Dec. 28 at his home in Katy, Texas.
On Friday, when the House Committee on Oversight and Government Reform invited Clemens and McNamee to testify, the pair spoke by telephone, an individual close to the situation said, speaking on condition of anonymity because public comments weren’t authorized. The conversation first was reported Sunday by Newsday.
The individual would not say what was discussed.
Clemens’ lawyer, Rusty Hardin, told the Houston Chronicle that it was McNamee who arranged to talk to Clemens on Friday but instead of getting back to Clemens the conversation was leaked “with spin” to Newsday.
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