It’s a lurid story, perfect for tabloids and talk shows: Famous athlete allegedly has affair with famous singer.
When the athlete is Roger Clemens, who has filed a defamation suit to protect his “good reputation” and accused his former trainer of lying by claiming he injected Clemens with steroids and human growth hormone, this question could increase the lurid quotient: Would the singer, Mindy McCready, take the witness stand in his trial?
The answer, according to two libel lawyers: Probably not, but with one critical caveat. If Clemens confided in her that he used performance-enhancing substances -- in the same way Andy Pettitte said Clemens confided in him -- McCready could be a powerful witness for the defense.
“If she was a confidant, and their relationship was close -- irrespective of whether it was sexual -- she might have that knowledge,” said Bill Ogden of the Houston law firm of Ogden, Gibson, Broocks and Longoria.
McCready acknowledged the “long-term affair” in Tuesday’s editions of the New York Daily News, and McCready’s father did the same in the New York Post. Rusty Hardin, the attorney for Clemens, called McCready a longtime family friend.
“At no time did Roger engage in any kind of inappropriate or improper relationship with her,” Hardin said in a statement.
In the defamation suit he filed in January against former trainer Brian McNamee, Clemens claimed McNamee’s “false allegations” about the use of steroids and HGH had “injured [his] reputation and exposed him to public hatred, contempt, ridicule and financial injury.”
The FBI is investigating whether Clemens lied to Congress in February, when he testified he had never used steroids or HGH.
Richard Emery, one of McNamee’s attorneys, has promised to subpoena McCready. Emery told the Associated Press the alleged affair represented “another example of Roger’s pervasive prevarications which will be at the core of any defamation case.”
Yet a judge almost certainly would not permit any testimony about whether Clemens and McCready had an affair, said Anthony Glassman of the Beverly Hills law firm of Glassman, Browning, Saltsman and Jacobs.
“The heart of the defamation claim is that he has been falsely accused of being a steroids user,” Glassman said. “The fact that he may or may not have had a relationship with a country-western singer would seem to be totally and completely irrelevant.
“It would be a big stretch to say any judge would allow testimony about his personal life.”
If and when McNamee’s attorneys subpoena McCready for a deposition, Clemens’ attorneys probably would challenge the subpoena, Glassman said.
The judge could confer with the attorneys, he said, and decide to allow questions related to Clemens’ alleged use of steroids and HGH and to his dealings with McNamee but to forbid questions related to an affair.
To the extent that any affair -- and the Post reported Tuesday that Clemens might have had at least two other extramarital affairs -- would affect the trial, Ogden said the impact probably would be limited to a damage assessment.
If Clemens wins the trial, a jury could award financial compensation for the damage McNamee’s statements did to his reputation.
“In general, a libel plaintiff has put his reputation at issue,” Ogden said.
On the one hand, Glassman said, the reputation at issue in the suit is the one Clemens built “as a great athlete and a Hall of Famer,” not as a family man. In addition, Ogden said, an alleged affair “wasn’t a part of his reputation before McNamee made his allegations.”
On the other hand, he said, McNamee’s lawyers could argue that any damage award should be limited because Clemens damaged his own “good reputation.”
In the written statement he delivered in advance of his testimony before Congress, Clemens said his baseball career had provided him with opportunities to work with young athletes, including “special needs youngsters,” and visit U.S. troops in Kuwait, Qatar and Afghanistan.
“I have always said that baseball is what I do; it is not who I am,” Clemens said. “Anyone who has spent time around me knows that my family is and always has been my top priority. My wife, Debbie, and my sons -- Koby, Kory, Kacy and Kody -- mean more to me than anything in the world.”