Lawsuit tough pitch for Palmeiro to hit

A libel case vs. Canseco would be difficult to win

February 26, 2005|By Ed Waldman | Ed Waldman,SUN STAFF

If Rafael Palmeiro is serious about pursuing a libel lawsuit against Jose Canseco, the truth would only be the beginning of his case.

Not only would the Orioles slugger have to prove that what Canseco wrote in his new book, Juiced: Wild Times, Rampant 'Roids, Smash Hits, and How Baseball Got Big, isn't true, but he'd also have to show, among other things, that Canseco knew it was false and that he was damaged by what was written.

"It's not unwinnable, but it would be an uphill battle," Robert D. Lystad, a partner with the law firm of Baker & Hostetler in Washington who frequently defends the media in libel cases, said yesterday. "A critical inquiry, of course, would be whether or not there would be anyone willing to step forward and corroborate Canseco's allegations.

"If this case should get to a jury, Canseco's reputation for telling falsehoods could certainly play a factor."

When Palmeiro showed up at Orioles spring training camp on Thursday, he said he hasn't decided whether to take legal action against Canseco, who wrote in the book that he introduced steroids to Palmeiro in 1992. Then, in an interview on 60 Minutes, Canseco said he injected steroids into Palmeiro.

"The one thing I can say is I have the best law firm and the best lawyer standing in the wings in [Orioles owner] Peter Angelos," Palmeiro said Thursday. "I have options available for me. He stands behind me, and he's ready. I'll look at all my options, and I'll decide."

One of the things Palmeiro must factor into that decision is how hard it is to prove a negative, Lystad said.

"For Palmeiro to win, the jury would have to be convinced that it was an intentional outright fabrication by Canseco. Period," he said.

Henry R. Abrams, a partner in the Baltimore office of Saul Ewing who also has represented media outlets in libel cases, said it is important to understand why the burden of proof for Palmeiro is so high.

"Newspapers and other reporters - and in this case Canseco is a reporter - can't absolutely vouch for the truth," said Abrams, who, like Lystad, has not studied this particular case. "They can't guarantee every time they open their mouths what they say is the truth. What they can do is say to the best of their knowledge it's true. And that's what the law requires.

"Then they've done their job, which is to be the eyes and ears of the public, and bring to the public the possibility of a very important story for the public to investigate for itself. Clearly the use of steroids in baseball, and professional sports generally, is a very important story."

Abrams also said Palmeiro could have a hard time proving that he was damaged by Canseco's allegations.

"It's not something that's killing these players," he said. "It's washing off their backs. They deny it, and they go on. They've denied it before."

As a practical matter, Abrams said, it may be better for Palmeiro and the accused players to let the story run itself out.

"The alternative is they get swept up into this major controversy that will prove an enormous distraction and could hurt their careers," he said.

Palmeiro got some indirect advice yesterday from someone who passed the bar in 1979, but then got too busy to practice law.

St. Louis Cardinals manager Tony La Russa, who got his first major league managing job that year with the Chicago White Sox, told the Associated Press that he thought anyone who sued Canseco would be in a no-win situation.

"I vaguely remember law school, but I remember that when you start getting into libel and slander, that's one of the toughest proofs in the world," La Russa said. "It is so difficult. ... The players can do whatever they want to, but you've got to think long and hard before you make that investment."

At Orioles camp yesterday, it was Miguel Tejada's turn to defend himself against Canseco's accusations. Tejada had been excused from Thursday's workout. In the book, Canseco wrote that he "can't say for sure" whether Tejada bulked up with steroids but "you have to trust your eyes."

Tejada's initial exposure to Canseco came in spring training 1997. He was called up to the majors when Canseco went on the disabled list later that year. They never played together in the same game.

"I don't pay attention to that," Tejada said of the accusations. "Everybody knows what kind of player I am. I never get hurt in this game. You guys can see how many games in a row I play [756]. You think that a guy coming to the big leagues for the first time, 19 years old, 18 years old, the first thing I'm going to ask somebody like Canseco is how to use steroids? Come on.

"For me, I was surprised when I heard that. But I don't pay attention just because I know I'm clean, I know who I am and I know everything I do is right. That's his opinion. I'm OK with that."

Sun staff writer Roch Kubatko contributed to this article.

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