Albert Pujols probably shouldn’t bother suing Jack Clark, even if Clark is lying

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Following Jack Clark’s claim that Albert Pujols used performance-enhancing drugs last week, Pujols told reporters that he planned to take legal action against Clark, presumably for defamation. He shouldn’t. And it has nothing to with whether he, in fact, took PEDs or not. It has everything to do with the nature of defamation cases.

There is a lot to lose when you sue for defamation, even if you are telling the truth and the person you are suing did, in fact, lie.  For one thing, defamation cases are hard to win.  This is especially true when the plaintiff is a public figure as Pujols is. That’s because Pujols would have to prove that Clark’s statements were made with “actual malice”. That means that Pujols would have to prove that Clark either knew his comments to be false or said them with reckless disregard as to their truth. Proving that Clark had the requisite malice when mistake, stupidity or mere attention-seeking is so much simpler an explanation for a guy in Clark’s place is an insanely tall order, the sort of which usually requires some sort of documented knowledge on the part of the person in Clark’s position. You can’t win these on a he-said, he-said basis, and so far that’s what this all sounds like.  No matter the case, actual malice is an extraordinary barrier to hurdle. While it does happen occasionally, it truly is newsworthy when a celebrity like Pujols prevails on a defamation claim.

A second problem for Pujols is more of a practical one than a legal one and that’s the inescapable fact that defamation lawsuits often create bigger audiences for the false statements than the false statements enjoyed in the first place. We who follow baseball closely all know what happened with Clark and Pujols last week. If there is a lawsuit wider sports media and possibly even general news and entertainment media will begin to cover it. People who had no idea that there was even a question about Pujols and PEDs will suddenly be reading news reports that — in the interests of appearing to be balanced — will lead with “Did the former MVP take steroids? One man says he did!” It’s totally unfair to a wronged person, but if the matter truly is about the subject’s reputation with the public, the subject is usually better served by letting the story die than he is by trying to vindicate his legal rights. This was the most common advice I’d give potential clients back when I used to handle defamation cases and it was the most common reason for them to decide not to sue.

Finally, there is what I feel is the biggest problem with a lawsuit: the possibility of, perversely, making the world believe Clark’s statements are true even if they aren’t.

Say Pujols sues. And say he loses the case, not because he fails to prove that Clark lied maliciously, but for the reason a lot of cases are lost: technicalities. Failures having to do with something other than the main issue. He can’t prove damages, say. Or it gets dismissed for some other reason, the possibilities of which are several. The savvy and the legally-trained among us may appreciate that the loss was on something other than the merits but most people will merely see “Pujols sued Clark, Clark won the case, ergo Clark was telling the truth.”  Lost in all of that will be the fact that there are a lot of ways someone can lie about another without being successfully sued for it. The history of this little story will always end with “Pujols was unsuccessful in his lawsuit against Clark.”

Reputation is everything. When one damages another’s reputation it can hurt like nothing else. Unfortunately, especially for the famous, there is very little upside to actually filing a lawsuit when one is truly defamed. Even worse than that is that there’s a no-win angle to all of this: if Pujols agrees there is no upside and decides not to sue Clark, many will say “See, he didn’t sue! Clark must be telling the truth!”

That would stink. But it stinks way less than the other options in front of him.

Derek Jeter: no longer the media’s darling

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There was a time, not too long ago, where the baseball press practically gave Derek Jeter awards for providing them no information whatsoever. As a player, he turned not answering questions into an art form. To the point where, eventually, the press just stopped asking him substantive questions almost entirely.

Unlike a lot of players who shut out the media, Jeter did it rather politely, so he did not get that passive aggressive treatment — or, occasionally, the aggressive-aggressive treatment — the press often gives uncommunicative players. To the contrary. He was positively lauded for his lack of communication. Lionized, even.

Take this column from Jeff Peralman at CNN.com from 2014, under the headline “Derek Jeter: Baseball’s Humble Hero”:

Throughout the first 18 seasons of his career, Jeter has often been labeled “dull” by the media. His answers to questions are unimaginative and full of cliché baseball nothingness blather. In hindsight, however, such lameness is almost to be admired. We live in an era where too many athletes feel as if they need to draw attention to themselves — for confidence, for commercials. If you’re not tweeting trash talk, you’re texting trash talk. Or making bold promises. Or demanding money or respect . . . he’s a guy who merely wanted to be a guy.

How about this from the New York Times around the time of his retirement:

Jeter’s ability to maintain a posture of sustained inscrutability — or, if you must, dignified comportment — has extended especially to the spoken word . . . he has played his best defense in front of his locker: catching every controversial question thrown to him and tossing it aside as if it were a scuffed ball unsuitable for play.

In a major league career that dates to the Clinton administration’s first term — he is the only Yankees shortstop a generation of fans has known — inquiring reporters have gathered around Jeter in the clubhouse thousands of times. He has maintained eye contact, answered nearly every question posed to him — and said nothing. This is not a complaint, but rather an expression of awe; of admiration, even. His batting average and fielding percentage aside, this kid from Kalamazoo, Mich., entered the New York meat grinder two decades ago and came out the other end looking as sharp as Joe DiMaggio’s suit.

This opinion of Jeter was pervasive throughout his career, but especially pronounced at its end of it. Jeter was deified by the press for saying nothing to the press. Praised for making the media’s job harder by the media itself. That’s pretty amazing when you think about it.

Times, however, have changed.

Some minor grumbling about Jeter’s non-answers to media questions began soon after he took over as Marlins co-owner. Ken Davidoff of the New York Post wrote a column about it all back in October, saying Jeter’s “Crash Davis Rules of Media Relations don’t apply anymore.” Not too many people echoed that at the time, probably because it came in the wake of a pretty boring introductory press conference and the stakes were pretty low. I did wonder at the time, though, if the media was waiting to turn on Jeter once he actually started making moves in his new role.

I think we can now say the answer to that is yes.

In the wake of the Giancarlo Stanton trade, a lot of baseball writers had a lot of questions for Derek Jeter. Jeter, however, decided that he didn’t even need to show up here at the Winter Meetings to answer them, despite the fact that he lives just a couple of hours away.

On Monday morning Buster Olney of ESPN made conspicuous note of it:

Later in the day Jeter deigned to talk to the media via a conference call. As usual, he said mostly nothing, but unlike 1997, 2007 or 2014 (a) he got testy about it; and (b) the press made a note of it:

They likewise noted when he passed the buck to someone below him on the org chart:

Last night I think a dam broke, and I don’t think Jeter will ever be able to sweet non-talk his way out criticism again. It all happened at a football game:

To sum up:

  • Jeter is now bad for not talking to the press;
  • Jeter is not lauded for his composure anymore; and
  • Jeter is being called out as a poor leader who does not face the music.

What a difference a few years and a change of role makes.

All of which, one would think, would make me at least a little happy. I mean, I’ll totally own up to rolling my eyes at the kid glove treatment Jeter got back when he played. About how his attributes, however great, were elevated even above their actual greatness and how his faults were, perversely, spun into attributes. You’d expect that, in light of that, I’d be sorta pleased that the tables have turned.

I’m not happy, though. Indeed, I have something approaching sympathy for Captian Jeets.

Why? Because, while I’d like to see him face the press, defend his moves as owner and explain his vision to Marlins fans everywhere, I know that he cannot. I know that he has no good answers to any of the questions he might be asked because the real answer to all of them is “hey, we need to make money for the ownership group and everything flows from that” and that’s not an answer he’s prepared to give.

Have some sympathy for Derek Jeter. He’s really in a tough, tough spot. Even if he put himself into it.