HIT KING HITS BACK

One of the nice things about doing a blog is the tips I receive from readers.  A recent one came from my friend Pat, a fellow Reds fan and loyal reader.  (Waiting for jokes about his bad judgment on both items).  But Pat figured I would be interested in this item that appeared in the Cincinnati Enquirer earlier this month.

 It concerns Pete Rose’s libel suit against John Dowd.  Pete contends that Dowd libeled him last year when Dowd appeared on a radio show in Philadelphia and made the following comment: 

 “Michael Bertolini told us that not only did he run bets, but he ran young girls for him down in spring training. Ages 12-14,” “Isn’t that lovely? So that’s statutory rape every time you do that. So he’s just not the kind of person that I find very attractive. He’s a street guy.”  Bertolini is a former associate of Pete’s. 

 No doubt, Pat figured this story is in my absolute sweet spot – baseball and libel law.  Two things I love.  And he’s right.  But I should add a caveat.  Despite the fact that I am a devoted Reds fan and belong in the absolute target demographic for Pete Rose – a west side Cincinnati native, raised by a baseball fanatic , having turned 12 in 1970 – I am not a Pete fan.  Not to belabor the point, but he disgraced the Reds franchise, lied for over a decade, and has lived a life utterly devoid of class.  I am done with him.  So, I am not inclined to be rooting for him in this litigation.  But let’s look at this objectively.  And it does raise some interesting questions.

 1.            Pete filed the case in a federal court in Philadelphia. I wonder why Pete didn’t try to find a way to sue Dowd in Cincinnati?  I’m not sure how he would have done that, but it’s hard to imagine a more favorable jury pool.  I think my views on Pete are distinctly in the minority. The average Cincinnati juror in this case would likely have one question – “how much do you want Pete?”   

 2.            I suppose the statute of limitations has run, but John Dowd could theoretically have a counter claim for libel against Pete.  In all the years Pete lied about not betting on baseball a subtext was that Dowd’s report was inaccurate and biased.  That wasn’t true and Pete knew it.  That sounds like libel to me.  But Dowd chose not to pursue the claim when Pete was spewing the lies, and he is now likely barred by the statute of limitations. 

 3.            As a factual matter, Pete has to prove Dowd’s allegations are false.  He may not have too much trouble with that.  Bertolini has denied ever making the statements.  If all Dowd has is what Bertolini told him, he may have his hands full defending himself.

 4.            As a legal matter, Dowd has a few options.  One is a theory called the “libel proof” plaintiff.  Where a person’s reputation is sufficiently tarnished, the law holds that there’s really no way to make it worse.  So any given statement does not make the situation worse.  If someone incorrectly said that a serial killer was also a shoplifter, the serial killer doesn’t have a case.  I’m not sure that defense will fly here.  Pete’s lawyer, Ray Genco has issued a statement that suggests he’s anticipating this defense: 

  “[N]o matter what his transgressions in the past may have been, no matter what you may think of him in terms of the baseball Hall of Fame debate, it’s not open season to the point you can accuse them of being a pedophile,” 

 He’s probably got a point.

 5.            Pete is no doubt a “public figure” which means he must prove that Dowd made the comment with “actual malice.”  That means Dowd had to know the statement was false or was “reckless” when he made it.  This is a tough standard – by design.  And it’s tough to prove a person’s mindset.  But if Bertolini is convincing in his testimony that he never said that to Dowd, and if Dowd has no other source, Pete has a pretty good shot on this. 

 6.            In order to prove the statement is false, Pete has to prove the statement wasn’t “substantially true.”  This means even if the statement isn’t literally true, if the gist is accurate, it’s not false.  For example, if someone said Pete bet on baseball 20 times, when in fact it was only 10, the statement would be substantially true.  Where this may play out here is if Dowd can establish that Pete was having sex with young women – even if they weren’t actually as young as 12 or 14.  I don’t know if that is the case, but it should make for interesting discovery. 

 7.            Pete may not have to establish actual damage. That is, the claim is defamatory per se.  A court may presume that Pete’s reputation was harmed by the very nature of the statement.  But apparently, Pete contends that he lost a $250,000 endorsement deal from Skechers  footwear after the story broke.  So, even if he had to prove actual damage, he’s potentially got the goods. 

 We will see.  It would be ironic if Pete wound up with the last laugh here.  But this is the legal equivalent of the first inning. There is no doubt much more to come.  Stay tuned.