Albert Pujols AP

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


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.

Kudos to Fox for not going crazy with the curses

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I turned on last night’s Fox broadcast fully expecting them to spend too much time on history and curses and billy goats and black cats and Steve Bartman and 1908 and 1948 and all of that jive while spending too little time on the game and the players at hand. I will admit now that I was pleasantly surprised that that was not, in fact, the case.

To be clear, the pregame show was a friggin’ train wreck in this department. There the narrative framing was basically wall-to-wall. In the first segment, Fox studio host Kevin Burkhardt used the phrase “reverse the curse” within his first thirty seconds of speaking. Then, before much if any actual game stuff was referred to, Burkhardt mentioned all of the following things in the space of a, maybe, 45 second span:

When the montage ended, Alex Rodriguez said that “every player wants to break that curse.” Then they threw it to the first commercial at 7:38 or so. In the second segment they ran a prerecorded thing about championship droughts, making liberal mention of 108 years for the Cubs and 68 years for the Indians, but then got down to some actual game breakdown.

In the third segment, Burkhardt threw it to the P.A. announcer at Progressive Field for player introductions, once again mentioning 108/68 years as he did so. After that, they ran a montage, set to Tom Petty and The Heartbreakers’ “The Waiting,” in which centenarians and other older folks talked about how long they’ve been — wait for it — waiting for an Indians or a Cubs championship. Lots of them mentioned billy goats and curses and stuff.

When that was over Fox finally threw it to Joe Buck and John Smoltz up in the booth. Buck added a punctuative “the waiting is the hardest part,” and soon after they ran a Buck-narrated pre-produced montage about what was going on in 1908 and 1948, saying who was president, noting when Model-Ts were invented and all of that, all set to “Time has come today” by the Chambers Brothers. So, yes, that was a lot to take in in the space of a half hour.

But that’s on me, right? Who in the heck needs to watch a pregame show? No one, really. Alex Rodriguez and Pete Rose are proving to be a nice combination for Fox — getting rid of C.J. Nitkowski has cleared the congestion a bit and both A-Rod and Rose are proving to be naturals after a 2015 in which they were somewhat clunky — but a pregame show is pretty superfluous. The actual baseball breakdown those guys provide can be accomplished in less than ten minutes. The rest of it practically begs for those narrative-servicing montages, and frankly, no one needs ’em.

Most notably, though: the curse and weight of history talk basically ended once the game got going. Indeed, Buck and Smoltz were shockingly and refreshingly narrative-free for most if not all of the contest. They talked about Jon Lester and his issues holding runners. Corey Kluber‘s slider. Andrew Miller being Andrew Miller. Kyle Schwarber being there at all. They did a really nice job of handling all of the Xs and Os the way you want your broadcast booth to handle it.

Smoltz in particular was outstanding, showing that Fox’s decision to make him their number one color guy while reassigning Harold Reynolds and Tom Verducci to be a fantastic one. A two-man booth is superior to a three-man booth in almost every instance, but the second man in Fox’s booth now mixes his insight and his regular conversation seamlessly. You never feel like Smoltz is talking down to you or speaking from his obviously superior place of baseball authority. His tone is as if he’s letting you in on stuff he thinks and hopes you’ll really appreciate knowing and he never plays the “I USED TO PLAY BASEBALL” card in the obnoxious ways some ex-player commentators do. And he’s right: we do appreciate what he tells us.

Beating up on Fox’s baseball broadcasts has been its own sport for many of us for several years, but there was nothing to really beat them up about last night. Sure, we could do without in-game interviews, but after the pregame show Fox showed remarkable restraint with respect to pushing history and narrative and curses and all of that baloney that has little if anything to do with the 2016 Chicago Cubs and Cleveland Indians. They kept it focused on the baseball game that was going on before us in ways they haven’t always done in the past. It was refreshing and, dare I say, downright enjoyable.

More of this please.

Republicans accuse Hillary Clinton of being a bandwagon Cubs fan

CHICAGO - APRIL 4:  Hillary Rodham Clinton throws out the first pitch before the Chicago Cubs Opening Day game against the New York Mets at Wrigley Field on April 4, 1994 in Chicago, Illinois. (Photo by Jonathan Daniel/Getty Images)
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This was inevitable: The Republican National Committee published a ridiculously detailed and self-serious opposition-research report accusing Hillary Clinton of being a “bandwagon” Cubs fan.

If you’re of a certain age you’ll recall that Clinton, who grew up in the Chicago suburbs, spoke about being a Cubs fan as a kid. You’ll also recall that when she was running for her senate seat in New York, she gave shoutouts to a heretofore unheard of Yankees fandom. A lot of people have had fun with this at various times — we’ve mentioned it here on multiple occasions — but I wasn’t aware that anyone considered it an actually substantive political issue as opposed to an amusing “politicians, man” kind of thing.

The Republicans think it’s serious, though. Indeed, there’s more detail to this oppo-hit than there is any of the party’s candidate’s position papers. And while someone could, theoretically, have a lot of fun with this kind of material, the opposition report is not even remotely tongue-in-cheek. It reads like a poisition paper on nuclear proliferation. If the GOP had been this serious about vetting its own candidate, I suspect they wouldn’t be in the position they’re in today.

As for the substance: eh, who cares? Sports is entertainment and cultural glue. As a kid in Chicago, being a Cubs fan is both fun and makes some sense. As a senator from New York in the early 2000s, you’re gonna get to go to some Yankees games and sit in some good seats and that’s fun too. And, of course, politicians are going to say opportunistic things in order to attempt to connect with their constituents. Think of that what you will, but if you think of that as something which reveals something deep and dark within their soul about what kind of person they are, you probably need to step away from the cable news for a while and get some fresh air. Or you probably need to admit that you already believed the worse about her and that this is just an exercise in confirmation bias.

Heck, at this point I almost hope she finds a third or fourth team to root for. Indeed, I hope she makes a comic heel turn, puts on a Chief Wahoo hat for tonight’s game and claims that, deep, deep down, she had always rooted for the Indians. Then even I could get on her case about it. And we could all talk about how, in her own way, Hillary was really bringing the nation together.