The three-judge Fifth U.S. Circuit Court of Appeals panel in New Orleans rendered a 2-1 published opinion today upholding U.S. District Judge Keith Ellison’s ruling that the lower court had no jurisdiction because McNamee made the statements about Clemens’s drug use to a sports reporter in New York, not Texas.
“We’re going to study the opinion and see where we go from here,” Clemens’s attorney, Rusty Hardin, said in a telephone interview from his Houston office. “All I needed to see was 2- 1. I know we lost.”
Hardin said he hadn’t read the opinion or discussed plans with his 48-year-old client, a seven-time Cy Young Award winner who played with the Boston Red Sox, New York Yankees, Houston Astros and Toronto Blue Jays from 1984-2007. Clemens can re-file the case in New York, where McNamee discussed his testimony with a Sports Illustrated reporter, seek a hearing before the entire Fifth Circuit bench or appeal to the U.S. Supreme Court.
“It was always ridiculous to drag Brian to Texas to try him in front of a home-town jury,” Richard Emery, McNamee’s New York attorney, said in an e-mail. “The court saw this for what it was -- a ploy to bully him.”
Both Clemens and McNamee testified before a congressional subcommittee, with Clemens denying he used performance-enhancing drugs and McNamee claiming he injected the pitcher with steroids and human growth hormone numerous times before the substances were banned by professional baseball in 2004.
“Statements in this case concerned non-Texas activities -- the delivery of performance-enhancing drugs to Clemens in New York and Canada,” the majority opinion said. “The statements were not made in Texas or directed to residents of Texas.”
Ellison, of the U.S. District Court for the Southern District of Texas in Houston, also said McNamee’s testimony to the Mitchell Commission was part of a judicial proceeding, therefore his statements “were cloaked with absolute immunity,” the opinion said. The appeals court panel didn’t address this issue.
Judge Catharina Haynes dissented, saying McNamee visited Texas at least 35 times while he was training Clemens, who lived in the state during the off-season. Therefore, the trainer could expect to have to face litigation in a Texas court.
“In this case, McNamee’s training relationship with Clemens in Texas and his knowledge that Clemens resided and had recently played professional baseball in his home state of Texas demonstrate that McNamee purposefully directed his allegedly defamatory statements at Clemens’s personal and professional reputation in Texas,” Haynes wrote.