The Chicago Daily Law Bulletin Published Timothy Liam EPSTEIN’s Article Entitled, “The plot thickens in players’ defamation suit over PEDs report.”

When a professional baseball player is accused of using performance-enhancing drugs (“PEDs,” inclusive of hormones for purposes of this article), the implications can be catastrophic.

Current Major League Baseball players are subject to the “three strikes and you’re out” policy. The first violation comes with an 80-game suspension, the second results in a season-long ban, and a lifetime ban is imposed upon MLB players who are deemed to be third-time-violators.

In addition to extensive suspensions and bans, allegations can destroy a player’s legacy. No current or past MLB player has hit more home runs in either a single-season or career than Barry Bonds. Nonetheless, the 14-time All-Star, who batted an impressive .298 over 22 seasons, is on the cusp of being denied access to the prestigious Baseball Hall of Fame.

Three-quarters of the Baseball Writers’ Association of America ballots must include the same player’s name in the same year for that player to be inducted into the Hall. However, players are only eligible for 10 years. After his ninth year on the ballot, Bonds was only named on 60.7% of all ballots.

The adversity the home run king has faced in obtaining 75% of votes likely can be blamed on his alleged use of PEDs. Bonds was a key defendant in the historic Bay Area Laboratory Co-Operative (or “BALCO”) scandal. However, because Bonds struck a deal with federal prosecutors and had his obstruction of justice conviction overturned, no court has affirmatively established that Bonds used PEDs during his historic career. Despite his allegations never officially being proven, Bond’s legacy is, and forever will be, tainted.

As is evident from the consequences of Bonds’ allegations, MLB players may feel inclined to file defamation lawsuits against those who allege PED use. Current Washington National Ryan Zimmerman and retired player Ryan Howard did just that five years ago by filing defamation lawsuits against Al-Jazeera America and two of its reporters in response to a documentary that included the two baseball players within a list of professional athletes who used human growth hormone during their careers.

To succeed in prosecuting a defamation claim, a plaintiff must establish that a defendant acted negligently in disseminating a falsehood about the plaintiff. Unfortunately for Zimmerman and Howard, because they are public figures, they face an even higher pleading standard than non-public, ordinary citizens. To be clear, Zimmerman and Howard are required to demonstrate that the allegedly false and defamatory statement was made with “actual malice.” New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964).

In support of their claims, Zimmerman and Howard allege that Al-Jazeera America and the reporters were liable for defamation because the alleged PEDs supplier recanted any statement he may have previously made about the two players’ PED use. Zimmerman v. Al Jazeera Am., LLC, 246 F. Supp. 3d 257 (D.D.C. 2017). Al-Jazeera America and the reporters argued that Zimmerman and Howard’s allegations fail to adequately demonstrate any defendant acted with actual malice.

In 2017, a federal district court in the District of Columbia denied Al-Jazeera America’s and one of the reporter’s motions to dismiss, and thus, held that a reasonable jury could determine the allegations constitute defamation with actual malice. A key finding by the court was that the defendants knew their source explicitly said he lied, but the documentary still aired and was portrayed without revealing this fact.

This holding was a win for Howard and Zimmerman as it moved them one step closer to having a finder of fact determine the allegations against them were false. However, earlier this year, Al-Jazeera America asserted that they are in possession of information that not only demonstrates a lack of actual malice, but also that Zimmerman and Howard did in fact use PEDs.

Specifically, Al-Jazeera provided a memorandum to the court asserting they are in possession of sealed evidence which includes an invoice for PEDs and needles paid by Howard. Furthermore, it also claims to have email exchanges between Zimmerman and the alleged dealer that clearly implicates Zimmerman’s PED usage. All in all, Al-Jazeera America claims to be in possession or be aware of more than 4,000 documents that should have been, but were not disclosed, and demonstrate their claim was not defamatory.

In response to Al-Jazeera America, Zimmerman and Howard argue that the hearing involving this alleged evidence is highly confidential, and thus, the public should be excluded access. Whether or not the public will be privy to this information is arguably Zimmerman’s and Howard’s last attempt to mitigate the amount of people who will ultimately draw longstanding conclusions on whom they believe.

Howard and Zimmerman believe that they need to take the allegations head-on to protect any endorsement contracts, player contracts, and their reputations. Al-Jazeera America similarly has an interest in protecting its own reputation, so it is not surprising that it has not backed down.

Personal and confidential information being disclosed to the public would likely frighten most people. However, Zimmerman and Howard took the risk, and consequently, rely on the court to protect information they believe to be confidential and private.

This situation may very well be a reason why MLB players are extremely hesitant on going after those who “smear” their reputation. The risk of uncertainty of what the public may learn about you may be enough to dissuade players from clearing their names from all allegations.

Nonetheless, this scenario also demonstrates why a higher pleading standard is necessary for public figures. Without the actual malice requirement, public figures could flood the courts with individuals making claims about them that are not true.

With the stakes rapidly increasing for Zimmerman and Howard, it is very well possible that they will pursue a settlement agreement to maintain confidentiality. If this were to occur, documentation that could prove any deceit would likely never see the light of day.

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