Sat, Feb 19, 2005 - Page 19 News List

A libel suit against Canseco would be risky and costly

NY TIMES NEWS SERVICE , NEW YORK

In his book published this week, Jose Canseco, the former major league outfielder, accuses a number of former teammates, including Mark McGwire, Ivan Rodriguez, Juan Gonzalez, Rafael Palmeiro and Miguel Tejada, of having used anabolic steroids or implies that they used them.

Each of those players has denied the accusations by Canseco in his book, Juiced: Wild Times, Rampant 'Roids, Smash Hits and How Baseball Got Big (Regan Books). If the players were clean, can they sue Canseco for libel? Should they?

The question was put to several lawyers who specialize in libel cases. Most said in telephone interviews that the players would have a difficult time winning in court and would have no chance unless they had been completely drug-free.

The players are public figures, said Floyd Abrams, a first-amendment lawyer in New York.

"So in order to win a libel suit, they would have to prove what Canseco is saying is not only false, but known by him to be false or suspected to be false," Abrams said.

"If it isn't true, they certainly have an opportunity to sue, but usually it's not a good idea for even innocent people to sue for libel, because often it turns out to be more pain than they imagined."

The public's concerns over steroids use in baseball may make it more difficult for one of the players to win a libel judgment against Canseco, said Abrams, who has represented many publications, including The New York Times.

"But it's not an impossible case to win for someone who had absolutely nothing to do with steroids or similar drugs," he said. "If you're taking something like steroids but not steroids, I wouldn't sue. If this is a complete fabrication, I think this is what libel law is all about. But would I sue? I think I might, but only if I'm completely innocent."

Kelli Sager, a libel lawyer in Los Angeles, said that in California, as in New York, if the person who claims to have been libeled is a public figure, he has to prove two things: that the statement made by the defendant was untrue and that it was made with malice.

"You have to know it's false when you say it," Sager said. "The only way a player could win would be to prove Canseco knew what he said was false. If you can't do that, you can't win the case."

Moreover, it could be quite difficult to prove that what Canseco said was false, said Lee Levine, a lawyer in Washington who represents people accused of libel.

"If they sued," he said of the baseball players, "the way the law works under good reason, they would have a very difficult time winning, whether or not what Canseco said was true, because they have the burden to prove it false, and that would be tough.

"It comes down to my word against yours, and the First Amendment says Canseco wins, regardless whether what he is saying is true or not. The tie goes to the runner. A good plaintiff's libel lawyer would say don't waste your time. I think the players would get that advice regardless whether what Canseco said is true."

John Kiernan, a New York lawyer who defends clients in libel suits, said he would advise anyone contemplating a libel suit to cool down for six months.

"Would I advise bringing a lawsuit?" he said. "Not very enthusiastically because what happens with libel cases is that the sting of a statement you believe is false continues for days and sometimes weeks, but if you bring a lawsuit the sting can drag on for years and still burden you long after everyone else has forgotten.

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