While the brouhaha around Alex Rodriguez, Ryan Braun and a supporting cast of Biogenesis customers swirled about Major League Baseball, a small sideshow was taking place here in flyover country. On August 2, 2013, Jack Clark, a former St. Louis Cardinals first baseman-turned-broadcaster, sat in front of the microphone for his newly minted talk radio show and proclaimed to the world (or at least to the St. Louis radio market) that he had it on good authority that Albert Pujols had been using performance enhancing drugs (PEDs) as his star ascended in the St. Louis organization.
Pujols’ reaction was swift and certain. He vehemently denied that he would “ever consider” steroid use, said he would never be able to face his God or his family if he had done such a thing and informed the sports media that he was “in the process of taking legal action” against Clark and the station that employed him. Pujols declared that it was time to “send a message.”
The radio station fired Clark. His show had been on air seven days. In an apparent attempt to head off litigation, the station took great pains to distance itself from Clark’s comments. Clark apparently took Pujols’ threat seriously, as he immediately hired a local St. Louis lawyer and told the world he was “eager” to defend the impending action. In October, 2013, Pujols did indeed file suit against Clark in St. Louis County Court, alleging defamation.
Since then, the case has made national news, owing primarily to the now-infamous letter written by Clark’s counsel to Pujols’ counsel, in which Clark’s lawyer proposed that the parties submit to dueling polygraph tests in order to declare a “winner.”
Setting aside media interest, this case poses unique challenges for both sides and, if it proceeds to trial, the prevailing party may well be the one who convinces jurors that he is the true “hometowner.”
Challenges for the Plaintiff
Meeting the Burden of Proof
In order to prevail in a defamation suit, Pujols and his legal team will have to prove that Jack Clark acted with “actual malice;” in other words, that Clark intended to injure Pujols by saying what he said. It wouldn’t be enough to show that Clark was just running his mouth, or perhaps repeating a rumor or simply trying to drive up the ratings of his new radio show. Pujols will have to prove that Jack Clark set out to hurt his reputation and that such intentional injury is compensable. That’s a high bar to clear.
Proving a Negative
There is a saying in the trial consulting world that a trial is about what it spends its time being about. Thus, while the charges in this trial deal with alleged defamation, there is a good chance a trial in this case could end up being more about Albert Pujols’ alleged PED use. In order to show that Clark is wrong, Pujols would likely first have to show that he did not use PEDs. How would he go about doing that? Albert Pujols says he never used PEDs; Jack Clark says he did. The deciding factor at trial is likely to fall upon third-party witnesses, and how the “Yes” witnesses and “No” witnesses will line up for one side or the other is anyone’s guess at this point.
Any case story that centers on whether Pujols did or did not use PEDs in St. Louis could ultimately turn a trial into an in-depth examination of the player’s claimed purity and veracity. In order to find that Clark injured Pujols, jurors will first need to believe that Clark was not telling the truth and, in order to make that determination, they’ll need to hear the story of “non-use.” Pujols, meanwhile, runs the risk of being cross-examined on anything from PED use itself to the issue of his age (for years, there have been whispers in the baseball world that Pujols is actually several years older than his claimed age). If that happens, the trial ends up being about Albert Pujols and not about Jack Clark.
Challenge for the Defense
Being the Lone Wolf
As of right now, Jack Clark is the only witness who agrees with Jack Clark. There have long been rumors and discussions about whether Pujols was “juicing,” but no third party has yet to come forward to confirm Clark’s assertions. Only one former teammate of Pujols’ has spoken on the issue and he backs the plaintiff. The trainer whom Clark credits as his source is vehemently denying he ever told Clark any such thing. As discovery progresses, the witness lineup may change, but if Jack Clark is left on an island, his credibility takes a hit. Whether such diminished credibility will be enough for jurors to find he acted with “malice,” however, remains to be seen.
The Ultimate Challenge for Both Sides
Winning the Hearts of Jurors
One thing we have learned from our jury research in St. Louis is that jurors there tend to be notorious “homers.” In other words, they favor the home team. St. Louisans revere their institutions and, in the courtroom, tend to protect them.
As a result, jurors in this case may well decide, consciously or unconsciously, that one man or the other is the “hometown guy” and, from that decision, build a case story in their minds that supports the side they’ve decided is the true St. Louis hometowner. Thus, the case stories offered by each side will need to include a “home team” theme.
The question in this trial is: Who is the home team?
For a decade, Albert Pujols reigned supreme as the most revered athlete in St. Louis. He was known simply as “Albert,” or to some, “El Hombre,” an homage to Stan “The Man” Musial (a nickname that Pujols, to his credit, maintained should be reserved for Musial and none other). He was part of two World Series championship teams. His high-profile Pujols Family Foundation benefited children and adults with Down Syndrome.
But then, he left.
Pujols turned down a rich offer to retire as a Cardinal in favor of a richer offer to retire as an Anaheim Angel (or Los Angeles Angel or California Angel or whatever they call themselves these days). The day after his move was made official, his Pujols 5 Restaurant, a popular local watering hole, was deserted, and the co-owners quickly changed the name in an effort to rebuild business. After he had signed with the Angels, his wife Deidre characterized the Cardinals’ offer (five years, $125 million) as a “slap in the face.” Albert Pujols was no longer St. Louis’ favorite adopted son.
Nonetheless, Pujols has maintained a presence in the community. He still has a home in the area and lives in town during the offseason. He has many friends in town. His foundation still calls St. Louis home. He showed up to cheer on his ex-mates in the 2013 World Series.
Jack Clark has some skeletons of his own in the closet. During his career, he had some high-profile feuds with people such as Tony Gwynn and Lou Pinella, as well as pretty much the entire San Francisco Giants’ organization. He went through a rather public bankruptcy in the 1990s and, in general, has garnered a reputation as a gadfly virtually wherever he’s gone.
On the other hand, Jack Clark committed to St. Louis. He helped build and has coached area minor league ball clubs; he’s been part of the Cardinals’ broadcast team and he is also one of a Cardinals’ alumni group – along with names like Ozzie Smith, Bob Gibson, Lou Brock, Stan Musial (he of blessed memory) and others – who show up at the ballpark, who mentor young players and who remain part of the community. Even though he played for three other Major League teams after his time with the Cardinals was up, he returned to St. Louis (as so many retired athletes do) and to this day considers himself a Cardinal.
As jurors watch this trial unfold and develop their own case stories that spring from the evidence, the outcome of this dispute may well hinge on whether the prevailing juror story is “Albert Pujols: here to defend the Cardinal honor of the past,” or “Jack Clark: here to defend the Cardinal honor of the future.”
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