Barry's legal recourse? Just sue it!

Updated: March 10, 2006, 7:28 PM ET
By Darren Rovell | ESPN.com

Barry Bonds can say whatever he wants about his alleged steroid use, as detailed in an upcoming book -- so far, he's wanted to say very little -- but if Bonds truly believes the assertions are false, he has a legal recourse. Assuming Bonds believes he has been libeled, his best hope to undo the damage is to file a lawsuit against the writers and publisher of "Game of Shadows," say legal experts.

Fans and critics alike are waiting for his next move.

Outside The Lines
At 9:30 a.m. Sunday on ESPN, "Outside The Lines" takes a look back at last year's congressional hearings on steroids. At the time, they were hailed as a breakthrough moment. Jose Canseco was an isolated man -- the only one willing to level accusations and use names. Rafael Palmiero waved his finger and denied he had ever taken steroids. Mark McGwire refused to "talk about the past." Mark Schwarz talks with participants from all sides in those hearings -- congressmen, witnesses and observers -- to see how they view things one year later.

"If he does not sue, he is a drug user, a repeat steroid user, a knowing steroid user," MSNBC anchor Keith Olbermann said on The Dan Patrick Show on ESPN Radio on Tuesday. "He has to sue for everything that the next 50 years of merchandising is worth."

The book's authors, Lance Williams and Mark Fainaru-Wada, allege that Bonds used a number of specific performance-enhancing drugs beginning after the 1998 season. According to Gotham Books (a member of Penguin Group), the book's publisher, the charges were culled from stacks of documents and a massive variety of interviews. Thanks to the publicity blitz generated by an excerpt that appears in this week's Sports Illustrated, the book's ranking on Amazon.com jumped from No. 119,745 on Monday to No. 7 on the entire site in less than 24 hours. It isn't scheduled for release until March 27.

If Bonds can prove that he has been libeled, then, as Olbermann suggests, he would presumably be able to collect for damages done to his image and earning power.

Barry Bonds
AP photoMum, or something very close to it, is the word from Barry Bonds so far.
Bonds' marketing representative, Jeff Bernstein, insisted that as of Tuesday, all his partnerships -- from Topps baseball cards to Majestic and New Era apparel -- remain intact. But it's possible that Bonds might have to provide more than his initial response for his business relationships to remain unchanged.

Bonds has repeatedly denied ever using performance-enhancing drugs. Asked about the book on Tuesday at the Giants' spring training complex in Scottsdale, Ariz., he said, "I won't even look at it. There's no reason to."

On Wednesday, one of Bonds' lawyers, Michael Rains, released a statement that impugns the credibility of several sources cited in the book: "The exploitation of Barry's good name and these attempts to eviscerate his sensational accomplishments in all phases of the game of baseball (throughout high school and college, as well as 20 years playing professionally) may make those responsible wealthy, but in the end, they need to live with themselves. Beyond this -- Barry has no further comment now nor in the foreseeable future."

It's easy to assume that Bonds has little to lose by filing a lawsuit if the allegations are untrue, but winning a libel case is difficult. For a public figure to prevail in a libel suit in the United States, the celebrity must prove not only that statements made about him or her were false, but also that the person making or publishing those statements knew they were false and wrote or said them to maliciously damage that celebrity's reputation.

Also, Bonds likely would be required to testify under oath in open court, and a trial would include open testimony from witnesses for the libel defense who would support the allegations. Although at least some of his testimony in front of a grand jury during the BALCO investigation was reportedly leaked, that testimony by law was to remain sealed and wasn't subject to cross-examination.

"There's a rather high burden of proof in libel cases," said Curt Holbreich, a former sportswriter who is a partner in the litigation department at Howard, Rice, Nemerovski, Canady, Falk & Rabkin in San Francisco. "It's also expensive, uncertain and time-consuming."

Even so, one of the nation's leading libel lawyers, L. Lin Wood, says he would advise Bonds -- if he believes the statements made about his performance-enhancing drug use are not true -- to protect his name in a court of law.

"If you are a public figure and someone has made a false accusation that strikes at the core of your reputation, regardless of whether you win or you lose, I'd recommend filing the lawsuit as a matter of principle," said Wood, who has settled libel cases on behalf of Atlanta Olympics bombing suspect Richard Jewell against NBC and a host of other publications. Wood has also represented California congressman Gary Condit in matters related to the 2001 abduction and murder of Chandra Levy.

"The case is being made against you in the court of public opinion, so if you do not respond, the average person assumes the charges are true and that you are guilty," Wood said.

One gauge of the court of public opinion is ESPN.com SportsNation. Of the more than 50,000 people who voted in a SportsNation poll on Tuesday, 76 percent said the information in the book reaffirms their belief that Bonds used steroids.

At least in terms of lawsuits, nobody laid a glove on Jose Canseco for his book.
Despite hesitancy by a slew of publishers over the possibility of libel lawsuits, Jose Canseco's book, "Juiced," did not produce a single lawsuit in the wake of its appearance in February 2005, according to the baseball player turned author. His book named Mark McGwire, Jason Giambi, Juan Gonzalez, Ivan Rodriguez and Rafael Palmeiro as steroid users.

Gonzalez, Rodriguez and Palmeiro all denied they had ever used steroids, although in May 2005, Palmeiro tested positive for the drug stanozolol and was subsequently suspended for 10 days by Major League Baseball.

Canseco also wrote that he believed Roger Clemens, Bret Boone and Sammy Sosa could have used steroids. Clemens' agent, Randy Hendricks, called the assertion "absurd." Boone said it was "ridiculous" and Sosa later said he had never used illegal performance-enhancing drugs. Still, no one chose to take the fight against Canseco's charges further.

"The fact that no one sued me was really the first indication that my book was the absolute truth," Canseco told ESPN.com on Wednesday. "People might have not believed what I was saying, but they believe it now."

Canseco said Bonds should challenge the book if he has information that what was written is false. "But if he sues and says it's false and more and more evidence continues to come out, he'll come out of it looking worse," Canseco said.

Canseco said his book is going through another printing. It recently went to paperback and has been translated into Spanish. Canseco said he currently is looking to sell the movie rights.

If Bonds chooses to sue, Wood says, he must sue both the authors and the publishers of the book. If Bonds truly believes he has been wronged, he has to be willing to defend his case against all fronts.

That was not the case with Olympic sprinter Marion Jones, who sued only BALCO founder Victor Conte for libel after he told ABC's "20/20" that he provided her with an array of performance-enhancing drugs. Jones did not sue ABC, which aired the interview and presumably could have fought a suit more vigorously. Conte, who is serving a four-month prison term for orchestrating the illegal steroid-distribution business, chose to settle with Jones. That settlement didn't even include a statement from Conte's lawyers that retracted the assertions he made on the television show.

If Bonds wished to sue Sports Illustrated for publishing an excerpt from "Game of Shadows," the magazine would not be legally exposed. SI spokesman Rick McCabe told ESPN.com that the book's publishers have guaranteed protection against a libel suit. McCabe noted that such an agreement is not unusual, as book-excerpt deals commonly carry such a provision.

Although libel cases can take more than a decade to be resolved through the courts -- Wood, for example, is currently in his 10th year of fighting the Atlanta Journal-Constitution in the Jewell case -- Wood says a false statement "should be fought no matter how much it costs and how long it takes."

But Bonds first must read the book.

Darren Rovell, who covers sports business for ESPN.com, can be reached at darren.rovell@espn3.com.

Darren Rovell | email

ESPN.com Sports Business reporter