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

Aug 12, 2013, 12:30 PM EST

Albert Pujols AP AP

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.

  1. skids003 - Aug 12, 2013 at 12:36 PM

    Just ignore the guy. Don’t give him the time of day.

  2. jamieaadams - Aug 12, 2013 at 12:36 PM

    Man…whenever Pujols is accused of PEDs, he seems to get really mad about it. Almost like he goes into some sort of…rage, or something.

    • raysfan1 - Aug 12, 2013 at 1:49 PM

      Man, most people get really pissed when they get falsely accused of committing crimes and performing their work dishonestly. It might, you know, make an innocent person enraged.

      Excellent job of biting on innuendo and contributing to Pujols’ no-win situation after allegedly being slandered.

      • jamieaadams - Aug 12, 2013 at 5:39 PM

        Just out of curiosity, what makes Pujols more believable to you than any other supposed user? Were you as quick in the day to defend Alex Rodriguez? Sammy Sosa? Barry Bonds?

        I bet you weren’t.

      • raysfan1 - Aug 12, 2013 at 9:05 PM

        I don’t believe him more than other players who have not been demonstrated to be users. I will also have no sympathy for him if there is ever actual evidence indicating he did use PEDs. What I hate is the rush to condemn without evidence because that is an injustice. Period. A radio commentator saying he heard someone say a player used is not evidence. It’s second hand hearsay. Show me some evidence, and I will advocate punishment according to the guidelines set forth in the JDA.

        Yes, I have said these same things (or similar since each case is a bit different) about other players. If you care to go back to HBT posts in March this year when the Biogenesis story first broke and again when it was first reported that Tony Bosch would play key witness for MLB, you can find comments by me that his say-so and written notes aren’t enough to condemn any of the involved players, even Rodriguez. That evidence, obviously, was procured…so I now have no issue with any of the punishments and will not argue with whatever the arbitrator decides for Rodriguez.

        I neither hate nor idolize any player. I do admire Pujols’ skills as a ball player, but am not a huge fan of his, his current team, nor his prior team.

        Hope this satisfies your curiosity.

    • asimonetti88 - Aug 12, 2013 at 3:31 PM

      Would you get mad if I said you were a known drug user? I’m assuming you aren’t a drug user, and I would be willing to bet if I went on a radio station and called you out by name as a drug user, you would get upset about it.

    • hammyofdoom - Aug 12, 2013 at 4:59 PM

      Man… whenever I get accused of doing something I didn’t do, I guess I get really mad about it. Almost like I don’t appreciate people saying I did shit that I didnt do, or something.

      Not saying that Pujols is or isn’t a cheater, but this guy is fucked no matter what he does. If he comes out and is vehement that he never cheated then it’s “The dude’s angry and roided up! He’s protesting to much he obviously did it!”

      OR if he simply brushes it off and says something like “It’s a free country, the guy can saw what he wants” then the reaction is “SEE! He isn’t freaking out over the allegations! He MUST have cheated!”

      Screw that.

  3. tbutler704 - Aug 12, 2013 at 12:38 PM

    If it weren’t for actual malice, you’d hear about defamation cases being brought everyday by public figures. About the only way to really get a case to stick is someone lying in some kind of firsthand way, like when some gay pornstar lied about an affair with Tom Cruise, and he sued him and won $10M judgment.

  4. sfsugator - Aug 12, 2013 at 12:41 PM

    Maverick is not gay come on man.

  5. sabathiawouldbegoodattheeighthtoo - Aug 12, 2013 at 12:50 PM

    I enjoyed this article by Mark Stopa on the subject as well. Opening paragraph included here:

    “Mrs. Pujols, isn’t it true that Albert’s testicles have gotten smaller over the years?” It sounds like an absurd question, but it’s an example of the intrusive and ball-busting (pun intended) yet totally legitimate discovery that Jack Clark could initiate against Pujols if he filed suit.

    http://rotosynthesis.rotowire.com/Why-Pujols-Wont-Sue-Jack-Clark-BBD4507.htm

    • churchoftheperpetuallyoutraged - Aug 12, 2013 at 1:08 PM

      Wouldn’t spousal privilege cover that?

  6. theinconvienenttruth - Aug 12, 2013 at 12:54 PM

    I respectfully disagree and here’s why..

    Your first problem – I agree defamation is a tough one to prove. I believe if he pursuits this lawsuit, whether if he succeeds or “fails”, this will make writers/public figures/employers think twice about spewing these asinine accusations about players that damage reputations in an effort to get ratings.

    Your second problem – Yes, the accusations of PED use would gain a lot of publicity. I don’t think anyone who is a casual fan or more hasn’t already heard the accusations so if it gains anymore exposure, than its just reaching those who don’t even follow the sport. I don’t think Pujols or any other players could careless if those people come across what Jack Clark said and believe it. If these people who retrieve this news from entertainment or news outlets and really cared about the story, I’m sure they would look more into the accusation and its base before making a concrete judgement on a person…or they are just plain ignorant

    Your third problem – I think I explained it well in the second problem

    You’re right, reputation is EVERYTHING. Shouldn’t that be good enough reason for Pujols to fight this for him and other players? Not allow these members of the media to drag their reputation down whenever they feel like it without base. If indeed he does not successfully sue Jack Clark and people do believe he used PEDS because of it…at least he put up a fight and ruined his reputation on his own accord. I just don’t see that happening though.

    • mornelithe - Aug 12, 2013 at 3:11 PM

      With regards to the ‘first problem’, I whole-heartedly agree. He may not be able to prove it, but Pujols has enough money that he can literally bury Clark in legal fees. Which is something I needs to happen to these writers and news broadcasters who think they can insinuate anything and get away with it. It’s sickening to think that people can just level accusations at anyone they want, without ANY proof. Any at all.

      We know it’s possible, big business does it all the time to weasel their way out of having to pay for their own screw-ups. In this case, Pujols can simply use a clearly broken court system to exact at least a small measure of revenge.

      • Kevin Gillman - Aug 12, 2013 at 4:38 PM

        And then take the money that Jack pays him, and give it all to a chairitable cause. Truly make Jack worthless, while at the same time give the money to a good cause.

      • mornelithe - Aug 13, 2013 at 10:44 AM

        He wouldn’t really be winning anything other than revenge, Kevin. As the article states, it would be difficult to prove Clark was knowingly doing it with malice. But, the legal system tends to bow and scrape, when money is thrown at it (with good lawyers), as I said. Big business does this all the time, it’s partly why class actions came around. A single person has zero chance to fight a fair battle against a corporate juggernaut with a revenue stream in the hundreds of millions, if not billions. The corporation keeps fighting, and the smaller one runs out of cash defending themselves.

        Same principle here, except Pujols can play the juggernaut.

    • clydeserra - Aug 12, 2013 at 5:58 PM

      Maybe Craig soft peddled it too much. Lemme try.

      There is no way in hell Pujols comes anywhere close to winning a law suit. None.

      • mornelithe - Aug 13, 2013 at 10:38 AM

        It’s not about winning, I mean, it’d be nice. But my point is, bury him in legal fee’s anyway, because he’s got nothing on Pujols account balances. File appeal after appeal after appeal and force Clark to pony up the legal fees, until he can longer afford to represent himself. At that point, just drop the suit, and let Clark live out his life in destitution.

        If the laws won’t work for you, then use the laws that do.

  7. herlies - Aug 12, 2013 at 12:59 PM

    At $25m for 1 year, Pujols makes roughly $50k every 3 innings! Roughly what I make in a year.

    I think Pujols has taken PEDs just like many of his peers. Uh oh, will Albert throw a hissy fit and sue me?

    Maybe he can take my salary and wipe his butt with it. That would really teach me a lesson…

    • paperlions - Aug 12, 2013 at 2:16 PM

      You can say you think something and just be wrong with fear of reprisal.

      But Clark didn’t say he thought Pujols took PEDs, which would have been fine as long as he had some real basis for that opinion other than “because he is good at baseball” (which is a dumb reason to hold that opinion)….but Clark didn’t say that, he stated that he knew for a fact that Pujols used, gave vague details (i.e. allusions to injections), and provided a source for the information in an effort to bolster his claim.

  8. prospero63 - Aug 12, 2013 at 1:04 PM

    This is everything that is wrong with our legal system. Someone can say what they want, but it’s impossible to effectively put a stop to it. It makes me think a good old fashioned a$$ whoopin’ response should be a legal way to respond…

    • tfoz5150 - Aug 12, 2013 at 10:06 PM

      If he’s innocent, then he can write it off as collateral damage of playing in a tainted era. Sue if you want to or just continue to play the game the right way and let all of the haters hate. If he’s full of it, then there’s plenty of others whose situations he can draw from to make his best defense. He came out pretty strong, a la Roger Clemens or Ryan Braun, but I do think that Jack Clark wouldn’t make this claim on a whim. He cites a very specific interaction that he had with Pujol’s trainer. Just like Canseco before, it may seem outlandish, but eventually the truth came out. Time will tell.

  9. mybrunoblog - Aug 12, 2013 at 1:05 PM

    If this were 200 years ago Pujols would simply challenge Ckark to a duel. Damn, think of the ratings that would pull.

  10. gothapotamus90210 - Aug 12, 2013 at 1:11 PM

    NY Times v. Sullivan

  11. km9000 - Aug 12, 2013 at 1:18 PM

    Surely Pujols’s agent/lawyer/publicist knew how unlikely a lawsuit victory would’ve been, so shouldn’t they have advised him to just issue a denial and leave it at that? Presumably they looked his statement over before it was released?

  12. chiadam - Aug 12, 2013 at 1:18 PM

    Doesn’t Pujols also have to show some sort of loss as a direct result of what Clark said before he can sue?

  13. bmoreravens1012013 - Aug 12, 2013 at 1:21 PM

    I started suspecting him once he lied about his age to maximize his income potential. If he’s willing to do that, then roid use is not off the table

    • churchoftheperpetuallyoutraged - Aug 12, 2013 at 1:30 PM

      When has Pujols lied about his age?

      • Nick C - Aug 12, 2013 at 3:53 PM

        I wish someone would show me one shred of evidence indicating Pujols lied about his age.

      • stex52 - Aug 12, 2013 at 4:00 PM

        We had this conversation last week. Bmore likes his opinions completely unencumbered by facts.

        Which, I guess, makes him pretty average American these days.

      • paperlions - Aug 12, 2013 at 4:04 PM

        Now now stex, let’s not be too hard on people “these days”, there is no evidence whatsoever that people in general have ever favored the integration of facts into their opinions.

      • stex52 - Aug 12, 2013 at 5:02 PM

        Fair point, Paper. It may just seem worse to me.

    • stlouis1baseball - Aug 12, 2013 at 4:58 PM

      When did he lie about his age? I missed that. Clue me in Baltimore!

  14. losanginsight - Aug 12, 2013 at 1:23 PM

    Didn’t Lance Armstrong go all out on a roid raged suing rampage? Look at what happened to him. Just retire already fat Albert. Your body is already deteriorating from all the roids.

    • km9000 - Aug 12, 2013 at 2:43 PM

      Because filing lawsuits is such a spur of the moment act…

    • cohnjusack - Aug 12, 2013 at 3:47 PM

      Hey Losanginsight, some commentors on this comments section have said Cal Ripken did steroids and their proof was that he never got hurt. Can you guys get together and decide a solid set of baseless criteria to prove steroid use with, because this is getting confusing.

      • churchoftheperpetuallyoutraged - Aug 12, 2013 at 4:10 PM

        I feel a bit like Charlie Brown and Lucy here. Except instead of footballs, we’re dealing with goal posts.

  15. Marty - Aug 12, 2013 at 1:55 PM

    …and Melky Cabrera threatened Andrew Baggarly. Same old story. I think more likely than not Pujols is clean, but this is the game Armstrong, Braun, et al made everyone play. (Armstrong, Braun, et al don’t owe anyone an apology for this by the way, because Craig Calcaterra says so and he has a JD).

  16. nickmiller63 - Aug 12, 2013 at 1:57 PM

    I do so wish I were the smartest guy in every room. What’s it feel like, Craig?

  17. mlblogsbig3bosox - Aug 12, 2013 at 2:00 PM

    It seems like Craig is learning some legal stuff from watching Suits.

  18. theskinsman - Aug 12, 2013 at 2:16 PM

    I just don’t know what on earth these multi million dollar players would do without Craig keeping his lips firmly pressed to their buttocks.

  19. rickdobrydney - Aug 12, 2013 at 2:25 PM

    We know Pujols is juiced—-look how he quickly he is breaking down —– And we also know why
    lawyers are so hated — try to read the above column without falling asleep—–

    • clemente2 - Aug 12, 2013 at 3:40 PM

      Even with the example of three stupid comments in front of you, you posted a fourth. Well done.

    • cohnjusack - Aug 12, 2013 at 3:52 PM

      look how he quickly he is breaking down

      My goodness, he’s breaking down like crazy! No players in baseball history have ever had 1 season where they didn’t reach 600 plate appearances.

      Seriously, where do you guys come up with this shit?

      • churchoftheperpetuallyoutraged - Aug 12, 2013 at 4:14 PM

        Know what’s funny. Here’s a guy that everyone swears is clean. From age 19 to 30 he put up a .296/.380/.568 line with a 148 OPS+. Then at 31 he started getting injured, and played 700 games in the next 7 years total. But no, he’s clean

        That man is Ken Griffey Jr. But he’s clean and Pujols is dirty, why?

      • cohnjusack - Aug 12, 2013 at 4:34 PM

        Griffey somehow escaped every bit of steroid paranoia, didn’t he?

        Considering that:
        1. He hit 50 home runs in the 1990s
        2. He saw a large, sudden jump in home runs (27 to 45) over the course of 1 year…then was challenging Maris in 1994 before the strike
        3. Became chronically injuried (which is apparently criteria for steroid use now I guess)
        4. Went from looking like this: http://goo.gl/bv6ZRS to this http://goo.gl/WbcjJ0

        I mean, the guy fits every bit of the bullshit steroids criteria, doesn’t he?

        Maybe…just maybe the people who have “proof” that people are using steroids based on a simple set of discriminately applied criteria are completely full of shit and need to realize that about themselves.

    • Kevin Gillman - Aug 12, 2013 at 4:45 PM

      Isn’t steroids supposed to help PREVENT injuries? Or wait, is it to heal from them? I am so confused by this.

  20. raysfan1 - Aug 12, 2013 at 2:26 PM

    Lets see…
    Pujols has had an all-timer of a career, so he must be using PEDs.

    Pujols has had nagging injuries this year, so he must be breaking down due to PEDs, normal aging process be damned.

    A former player says he heard it from a former trainer when Pujols was a minor leaguer and on nobody’s radar that Pujols Used PEDs. The trainer denies it, but the former player insists he remembers it clearly 13 years later without ever brining it up before, so he must be telling the truth and the trainer lying–and thus he must be using PEDs, lack of evidence be damned.

    He has a name that is easily bastardized into a “clever” moniker like “PooHoles,” so he must be using PEDs.

    When he became a free agent, he accepted the best offer, so he must be using PEDs.

    He denies using PEDs, so he must be using PEDs.

    He got mad when accused of using PEDs, and PED users sometimes get angry, so he must be using PEDs.

    He threatened to sue, just like some known cheaters have, so he must be using PEDs.

    If he does sue, that is just what Lance Armstrong did, so he must be using PEDs.

    If he doesn’t sue, then we know he was just full of hot air and thus he must be using PEDs

    He’s passed every drug test he’s ever taken, so did Armstrong, so he must be using PEDs.

    (For those who might think I’m laying the sarcasm on thickly, I’ve seen every one of the above convoluted bits of “reasoning” in the past 24 hours.)

    • jamieaadams - Aug 12, 2013 at 5:45 PM

      Take Pujols out, put in your favorite PED user. You could, at some point, pretty much written the same thing.

      Turning a blind eye to a comment made from Jack Clark…yep, folks did that with Canseco, too.

      • raysfan1 - Aug 12, 2013 at 7:28 PM

        I don’t have much problem with much of the condemnation known PED users have gotten. Ryan Braun earned his reputation being toast. Whatever punishment A-Rod gets is fine with me. The constant witch-hunting, idiotic mob mentality that thinks its okay to level accusations at players using non sequiturs and BS ideas of how PEDs even work needs to stop.

        No, it is not reasonable to think any player is using sans actual evidence, and it is completely unfair unless then assuming every player uses PEDs (in which case I wonder why such a person even watches sports).

        Some commenters have referred to me as having my head in the sand over PEDs. I say not so; however, I really despise the mob mentality. The court of public opinion tends to be a kangaroo court. Even if the mob gets lucky and accidentally condemns a guilty person, it is still an injustice.

  21. makeham98 - Aug 12, 2013 at 3:03 PM

    Pujols is as innocent as Roger Clemens, who faced his accuser in court. It completely restored his reputation.

    By all means, sue him, Albert.

  22. greenandyellowarebabypoopcolorsiwouldrathrwearpink - Aug 12, 2013 at 3:04 PM

    i hard not to believe he didnt take anything the way his body is breaking down and hes all of 31/32, hes not an NFL running back and yet hes got this ailment, this problem, hes a firstbasemen/dh and he cant stay healthy in a non contact sport, its kinda a tell tale sign that he may have used or could be using, either way i could care less if people used stuff to be better, its out there, your life, take it, we dont really have any idea if ball players in the 30’s 40s and 50’s took different things as well, might have, maybe not…

    • cur68 - Aug 12, 2013 at 3:16 PM

      My. Dog. From screenname, to comment, to content (such as one can discern)…..the integrity displayed here. The sheer vertical integration of it all…like wow, mang.

  23. crackersnap - Aug 12, 2013 at 3:16 PM

    Curtis Publishing Co. v. Butts….Which is why I would suspect that,once htey found out that they might be getting sued, his employers fired Clark so fast he might be needing a neck brace.

  24. raysfan1 - Aug 12, 2013 at 3:16 PM

    1) He’s 33.
    2) I had the same injury as a 27-year-old surgery resident. Plantar fasciitis is not die to steroids and does not require playing a contact sport.

    • cur68 - Aug 12, 2013 at 3:19 PM

      I had it as a 13 year old. Mind you it was from walking my paper route, but I don’t recall any contact there. And I was steroid free, too.

      • stex52 - Aug 12, 2013 at 4:03 PM

        I had a miserable bout of it in my early 50’s. Just from stepping on a rock. People have no idea how debilitating that little bit of inflammation is.

        Guess what? Steroid-free.

  25. Reflex - Aug 12, 2013 at 3:22 PM

    I honestly think there is a certain class of person who revels in seeing people torn down. When I realized that Bonds was using I was disappointed, sad, and I lost any real concern about if he went into the hall. But I was not happy about it, overjoyed to see his career and legacy destroyed. The same goes for Pujols, Arod and everyone else. It makes me sad because it does affect how I perceive the game and its accomplishments, but there is no joy in it, even if it is a player who I personally dislike.

    Why do so many just wait for stuff like this so they can jump around in glee about how someone possibly cheated? Even if it were true, and Pujols were juicing, how could *anyone* be happy about that? As was said in the movie, some people just want to watch the world burn…

    • jamieaadams - Aug 12, 2013 at 5:47 PM

      Or, some people want to clean up baseball. I forget which movie that was in.

      • Reflex - Aug 12, 2013 at 5:55 PM

        Cleaning up baseball as a conversation would be a frank discussion of the problem, of possible fixes, of appropriate penalties, etc. Wanting to see the world burn is taking every piece of hearsay and gossip and using them to tear down every athlete who dares to be good at what they do. There is *zero* evidence that Jeff Bagwell used, nobody has ever accused him, but some writers somewhere decided that he ‘looks like a roid user’ and therefore he can’t get in the HOF and people on forums baselessly accuse him of it. Some shock jock former athlete known for being an asshole comes up with some random story with zero corroboration and accuses the best baseball player of my lifetime of using steroids and people on forums go on about how ‘obvious’ it is and how thrilled they are that he’s been ‘caught’ when no such thing has occurred.

        The movie was The Dark Knight. And it was Alfred’s description of the Joker.

      • jamieaadams - Aug 12, 2013 at 6:10 PM

        So you want to clean up baseball, but if a guy like Jack Clark makes an accusation…well, we all know he is an a$$hole, so what he says obviously has no merit.

        For the record, I’m not accusing Pujols of anything. And I’m also not naive enough to think Clark is wrong simply because he’s Clark. We’ve been down that road before.

      • jamieaadams - Aug 12, 2013 at 6:11 PM

        Also, I love that movie. Alfred never said anything about cleaning up baseball.

      • raysfan1 - Aug 12, 2013 at 7:34 PM

        Not at all, but Clark needs to have some evidence or he’s just spreading hearsay and helping nothing. His being a jerk does not mean he’s not credible, but having no evidence plus not being an actual witness means he is just spreading rumors–especially when the person he uses for corroboration does not back him up.

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