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26 Ent. & Sports Law. 34 (2008-2009)
Fallout from the Mitchell Report

handle is hein.journals/entspl26 and id is 74 raw text is: Fallout From the Mitchell Report

BY JAY K. REISINGER

A more than 20-month-long
investigation and the long-
awaited publication of a
400-page report linking 90 current
and former baseball players to
performance-enhancing substance
(PES) use, ostensibly aimed at fer-
reting out PES use in Major League
Baseball (MLB), proved to be only
the ceremonial first pitch in the PES
saga. Senator George Mitchell's
investigation, initiated by Commis-
sioner of MLB Allen H. (Bud) Selig,
prompted the publication of the

Mitchell Report, which was just the
beginning of a protracted extra-
innings fallout that was highlighted
by a player-initiated civil defama-
tion suit, perjury investigations, and
allegations of collusion. In addition,
it has resulted in changes to the cur-
rent basic agreement between the
30 major league clubs and the Major
League Baseball Players Association
(MLBPA). It has also led to a con-
gressional inquiry into the testimo-
nies of MLB's Commissioner Selig
and Donald M. Fehr, the executive

director of the MLBPA. And, the
current and former players identi-
fied in the report as PES users have
had their names and reputations
permanently tainted in the eyes of
the public.
CLEMENS/MCNAMEE
While most of the 90 players the
Mitchell Report linked to PES use
remained silent in the days im-
mediately following the report's
release, a few players publicly ad-
mitted their own use and accepted,
at least in part, the Mitchell Report's
findings with respect to their con-
duct.1 The immediate responses of
those five players proved an early
indication of the report's continu-
ing repercussions as other players
began to come forward to refute the
report's findings.2 Shortly after the
report was released, seven-time Cy
Young Award winner, Roger Cle-
mens, issued a statement through
his agent vehemently denying the
allegations of his former trainer,
Brian McNamee, and insisting that
he had never taken steroids, HGH,
or any other banned PES during
his career.3
Nearly a month later, the
354-game winner won his first legal
victory, beating McNamee to court4
and turning his vehement denial
into a 14-page defamation lawsuit'
in attempt to clear his name and
establish his innocence.6 Joining
the short list of athletes who have
attempted to use the judicial system
in an effort to clear their names,7
Clemens filed a lawsuit. He origi-
nally filed in Harris County Dis-
trict Court in Texas (since removed
to the U.S. District Court for the
Southern District of Texas, Houston
Division), and listed 15 statements
made by McNamee during Mitch-
ell's investigation that Clemens'
claimed were untrue and defama-
tory.' Since that initial filing on
January 6, 2008, in which Clemens
asked that damages be determined
by a jury, and maintained that Mc-
Namee's allegations were totally
false,9 Clemens' attorneys amend-
ed the original complaint to include
a claim of intentional infliction of
emotional distress. McNamee's
lawyers attempted to have Clemens'

34      Entertainment and Sports Lawyer /Volume 26, Number 2 / Summer 2008

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