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.

The day Giancarlo Stanton became a “True Yankee”

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Personally, I would’ve assumed that the day Giancarlo Stanton became a “True Yankee” was when the Yankees traded for him, thereby willingly incurring a legal obligation to pay him hundreds of millions of dollars and pencil him in the lineup until his knees fell off and, probably, for some time after. That, however, is not how things go with the New York Yankees.

The Yankees can trade for you, but that does not make you a “True Yankee.” They can sign you to a nine-figure deal in free agency, but your signature on the contract is not your “signature Yankee moment.” They can draft you, develop you for six years and play you for another three and you still may not have enough time and accomplishments under your belt to be anything other than, more or less, a probationary employee.

No, to be a “True Yankee” you have to be declared so by the media after doing something neat like hitting a big home run like Stanton did last night to lead the Yankees to victory over the Mariners. Until then — until you become the hero of a Wednesday night game in June, I guess — you’re suspect. After that, well . . .

And:


And:

Seeing these headlines and the many other stories and tweets with references to Stanton’s newfound “True Yankee”-dom makes me wonder when, say, Jonathan Villar, became a “True Brewer” or when Daniel Descalso will deliver his “Signature Diamondback Moment.” I’m sure someone will tell us.

Haha, just kidding. No other team does that. Probably because no other team likes to stoke its own mystique like the Yankees do. They have always done this to some degree — and given the franchise’s success, they are allowed a bit more leeway to boast than other ones are — but I blame George Steinbrenner for taking this to silly levels.

Big Stein was the first owner to really take advantage of free agency, but that also made him the first owner to stigmatize the players he signed as somehow owing the team more than any other player for their having accepted a big paycheck. For having to prove themselves in ways other players didn’t. He famously did this with Dave Winfield, contrasting him poorly with Reggie Jackson, who had proven himself in ways that made Steinbrenner happy. He never really did this with homegrown Yankees players. It was like a parent being partial to their natural child and cold to the adopted one.

Steinbrenner also built up the level of expectations for Yankees players — all of them — beyond reason. I think it was in the late 90s that he started up with that “anything less than a World Series title is failure” jazz. I question whether that was motivational to highly-trained and already motivated baseball players, but it was certainly good for building the Yankees brand. The idea that you’re not a “True Yankee” — which I seem to first remember being a sticking point with Jason Giambi — is a logical extension of that. While it may not be the best way to run an organization it is, as a matter of brand-building, pretty effective to portray your team as having higher expectations and something of an initiation period for its players. It’s a way of making fans feel like the club and the players they root for are a level above everyone else.

Of course, George Steinbrenner was George Steinbrenner, and being sorta crazy and sorta unfair and working overtime to build the Yankees brand was what made him The Boss. It was literally his job to do that kind of thing, so let’s not be too hard on him. I get why he did it that way.

I do wonder why, however, the media tasked with covering the Yankees has so eagerly taken up the job of Yankees brand-building like that. Wherever Big Stein is today, he’s likely beyond caring about things like money, but I bet he’s still probably pretty happy with all of the free P.R. work his team continues to get, long after he shuffled off this planet and became an immortal Yankee.

Wait. I’ve gotta talk to a trademark lawyer, stat.