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Posted: Tuesday July 8, 2008 3:28PM; Updated: Tuesday July 8, 2008 3:49PM
Michael McCann Michael McCann >

Key questions about Clemens (cont.)

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3) Why is the IRS interested in Clemens?

Highlighted by the work of special agent Jeff Novitzky, the IRS has maintained serious interest in the ongoing scandal of illegal steroids in American sports. The agency, which is responsible for federal tax collection and tax law enforcement, appears to believe that the sale, distribution, and use of steroids and other illegal performance-enhancers may reveal various violations of tax law. Those violations include both tax evasion for unreported income generated by the sale of steroids and performance-enhancers and money laundering, with payments for steroids and other illegal drugs dishonestly characterized as legitimate financial activities.

As a result, if Clemens knowingly purchased, used, or distributed steroids, he would risk exposure to money laundering charges, since he may have engaged in financial subterfuge to both obscure those transactions and to blunt any detection of money changing hands. Notably, the IRS has investigated Kelley, though he insists that he never sold steroids to any one, let alone Clemens.

4) What about Clemens' defamation lawsuit in Texas?

Clemens' basic theory in his civil lawsuit is that McNamee defamed him by falsely telling third parties -- including George Mitchell's investigatory team, members of Congress, members of the media and Pettitte -- that he injected Clemens with steroids and HGH, and that such statements injured Clemens' reputation and exposed him to public ridicule. Clemens has the burden of proving by a preponderance of evidence (meaning "more likely than not") that McNamee's statements were both untrue and injurious. Such a task will prove difficult, primarily since most of the available evidence suggests that McNamee is telling the truth.

Clemens has another torts claim in his lawsuit from which to argue: that through his statements McNamee intentionally caused Clemens to suffer severe emotional distress. Intentional infliction of emotional distress is extremely hard to establish. Under Texas law Clemens must prove that McNamee's conduct was "extreme and outrageous." Keep in mind, for McNamee's conduct to be considered "extreme and outrageous," it must, according to the Supreme Court of Texas, "be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."

Although they are likely to prevail in a trial, McNamee's attorneys have attempted to avoid the litigation altogether by seeking dismissal of Clemens' lawsuit. They contend that McNamee's statements were privileged, which would make them non-defamatory by nature. McNamee's attorneys maintain that by making the statements to members of Mitchell's investigatory team, McNamee spoke in connection with a federal investigation.

It should be noted that while Mitchell's team and federal investigators worked collaboratively, the team itself was a private investigatory body, managed and financed by Major League Baseball, and not subject to the federal rules of evidence. In addition, McNamee received favor from those investigators for cooperating with Mitchell's team: He avoided criminal liability. Two years ago McNamee signed a proffer agreement, which called for him to truthfully reveal information to prosecutors and others designated by those prosecutors about possible illegality in exchange for any disclosures not be used against him. It may be questioned whether comments made to private investigators in connection with McNamee's bargain with prosecutors should accord him privilege from defamation. Clemens' attorneys have also stressed that defamation may have occurred when McNamee spoke to Pettitte and to news outlets about Clemens' alleged steroids use.

The parties have also engaged in a tussle over whether the U.S. District Court in Houston should be able to hear the case. McNamee's attorneys contend that since their client does not reside in Texas and since the alleged defamatory statements and "extreme and outrageous" behavior took place in New York, the case would be better suited to a New York federal court (and thus potentially before a New York jury). In response, Clemens' attorneys argue that McNamee also made statements to Pettitte in Texas about Clemens and that his statements in New York have been broadcast nationally, including in Clemens' home state of Texas, where Clemens has likely suffered the greatest reputational harm. McNamee also traveled to Texas to train Clemens.

Judge Keith P. Ellison is expected to rule on McNamee's motion within the next eight weeks. Clemens is favored to prevail, since McNamee and his statements probably have sufficient nexus to the state of Texas. Even a decision adverse to Clemens would not necessarily end the litigation, as Clemens could appeal a dismissal while a change in venue to New York would merely relocate the case.

In short, Clemens' assorted legal problems are likely to remain unresolved for some time to come.

Michael McCann is a visiting law professor at Boston College Law School, a law professor at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.

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