Clemens v. McNamee: What Fueled the Rocket?

Michael Carroll, Albany Government Law Review Member


          On February 13, 2008, the House Committee on Oversight and Government Reform held a hearing that drew the attention of all the national media outlets in the United States.[1]  The hearing was televised live, and many Americans closely watched the testimony of the star witness involved.  One month earlier, this witness had a chance to explain the circumstances that brought him to Congress in an exclusive interview on “‘60 Minutes.’”[2]  However, the situation this witness faced in February was different than his television interview.  While in front of the Committee, he was required to take an oath to testify truthfully, and he had to endure questioning from some members of Congress who highly doubted his credibility and cast doubt on the validity of his illustrious career.  The hearing “split along partisan lines,” seeing Democrats attack the witness and Republicans defend him.[3]  This political tension did not occur as a result of testimony from a government official or a CEO of an American corporation.  Instead, it was the testimony of Roger Clemens that caused this political rift.



          Roger Clemens, a former pitcher for the Boston Red Sox, Toronto Blue Jays, New York Yankees, and Houston Astros, had a career that spanned from 1984 to 2007.[4]  Mr. Clemens compiled 354 wins “seven Cy Young Awards . . . [and was] named to All-Star teams eleven times.”[5]  When Mr. Clemens retired in 2007, Major League Baseball (MLB) faced allegations of widespread steroid abuse by some of the sport’s top players.  With criticism coming from the media, the U.S. government, and baseball fans, the Commissioner of the MLB, Bud Selig, requested that former United States Senator George Mitchell undertake an independent investigation looking into the use of performance enhancing drugs (PEDs) in MLB.[6]  After performing this investigation, Senator Mitchell submitted a report to MLB in December 2007 which alleged that Roger Clemens (among others) used PEDs.[7] 

          The principle source of information regarding Roger Clemens’ use of PEDs was gleaned from his former trainer, Brian McNamee.[8]  At the time of the Mitchell investigation, Mr. McNamee had already been the subject of an inquiry by the U.S. Attorney’s Office for the Northern District of California as “a possible sub-distributor” of PEDs.[9]  As a part of this investigation, Mr. McNamee entered into a written agreement with the U.S. Attorney’s Office that “no truthful statements [could] be used against [him] in any federal prosecution by that Office.”[10]  At the request of the U.S. Attorney’s Office, Mr. McNamee held several interviews with staff working on the Mitchell Report.  At these meetings, Mr. McNamee was told that he faced possible “criminal charges if he made any false statements,” and that all of his statements made for the Mitchell Report were “subject to his written agreement with the U.S. Attorney’s Office.”[11] 

          During these meetings, which were held in New York, Mr. McNamee revealed that: (1) he injected Mr. Clemens four times in the buttocks with steroids in 1998 while Mr. Clemens played for the Toronto Blue Jays,[12] (2) he injected Mr. Clemens four to six times with steroids and another four to six times with human growth hormone (HGH) during the 2000 season while Mr. Clemens played for the New York Yankees,[13] (3) he injected Mr. Clemens with steroids four or five times in 2001 while Mr. Clemens was playing for the New York Yankees,[14] and (4) Mr. McNamee had no knowledge of Mr. Clemens’ use of PEDs after 2001.[15]  Additionally, in 2003 or 2004, Mr. McNamee told Andy Pettitte[16] (at Pettitte’s home in Texas) that “‘he had gotten steroids for Roger.’”[17]  Furthermore, in 2008, Mr. McNamee held an interview in New York with John Heyman, a writer for Sports[18]  In this interview, Mr. McNamee repeated his previous statements that Mr. Clemens used PEDs.[19]  In 2008, as a result of the statements that Mr. McNamee made to the Mitchell Report, Andy Pettitte, and John Heyman, Mr. Clemens filed a defamation lawsuit against Mr. McNamee in Texas state court.[20]  Mr. McNamee asserted his right to remove the case to federal court in the Southern District of Texas, pursuant to diversity jurisdiction and 28 U.S.C. § 1441(a).[21]  Shortly thereafter, Mr. McNamee filed a 12(b)(6) motion to dismiss.[22]



          The District Court first dealt with the question of whether it had personal jurisdiction over the statements Mr. McNamee made for the Mitchell Report and to Mr. Heyman.  Mr. McNamee argued that the Court lacked jurisdiction because: (1) he is a resident of New York, and (2) these statements were made in New York.[23]  For the Court to have personal jurisdiction over Mr. McNamee, Mr. Clemens had to show that “[McNamee] purposely availed himself of the benefits and protections of Texas law, thereby establishing minimum contacts with Texas . . . .”[24]  Mr. Clemens asserted that Mr. McNamee established minimum contacts through specific jurisdiction because Mr. McNamee “purposely directed [his] activities at [Texas] . . . .”[25]  In making his argument, Mr. Clemens depended on Calder v. Jones.[26] 

          In Calder, a movie star named Shirley Jones filed a lawsuit against a writer and editor working for the National Enquirer, who published an “allegedly libelous story” about her.[27]  Ms. Jones filed her lawsuit in California court, despite the fact that the writer and editor both lived in Florida.[28]  The California court held that it had personal jurisdiction over the defendants because “[t]he allegedly libelous story concerned California activities of a California resident . . . [t]he article was drawn from California sources, and the brunt of the harm . . . was suffered in California.”[29]

          Applying the standard set forth in Calder, the Texas District Court held that it did not possess personal jurisdiction over the statements Mr. McNamee made for the Mitchell Report and to Mr. Heyman.  In reaching this conclusion, the Court stated that “McNamee’s statements to Mitchell and Heyman did not mention Texas, they were not drawn from Texas sources, and . . . they was [sic] just as likely to attract the interest of New York Yankees fans as that of Houston Astros fans.”[30]  Since Mr. McNamee’s statements for the Mitchell Report and to Mr. Heyman were not purposely directed at Texas, the Court lacked personal jurisdiction and dismissed these claims. 

          Second, the Court addressed Mr. McNamee’s argument that he was entitled to immunity for the statements he made for the Mitchell Report investigation.[31]  Relying on the test in Shanks v. AlliedSignal, [32] the Court stated that Mr. McNamee would be due immunity if the statements he made were “part of legislative, judicial, or quasi-judicial proceedings . . . made as part of an ongoing proceeding, [and] they [were] not unsolicited . . . .”[33]  According to the Court, Mr. McNamee’s statements were made as part of the “ongoing proceeding” headed by the U.S. Attorney’s Office, they were solicited by prosecutors and federal agents, and the statements were made as part of a judicial proceeding, as declared by the U.S. Attorney involved in the case.[34]  Since Mr. McNamee’s statements satisfied the Shanks test, the Court held that his statements to the Mitchell Report investigators were entitled to immunity.

          Third, the Court analyzed whether Mr. Clemens failed to state a claim regarding the alleged statements that Mr. McNamee made to Mr. Pettitte.  The Court held that it had personal jurisdiction over the statements from Mr. McNamee to Mr. Pettitte because they were made at Mr. Pettitte’s home in Deer Park, Texas.[35]  However, Mr. McNamee argued that the claim should be dismissed because his “alleged defamatory statements [were] not described with enough specificity in [Mr.] Clemens’s Amended Complaint.”[36]  The Court agreed, but instead of dismissing the claim, the Court provided Mr. Clemens leave to amend his complaint so that he could assert the exact statements that he believed were defamatory.[37]



          On August 28, 2009, with the consent of Mr. Clemens’ attorney, the District Court judge dismissed Mr. Clemens’ lawsuit with prejudice.[38]  This dismissal allowed Mr. Clemens to file an appeal with the 5th Circuit Court of Appeals (the appeal is currently pending).[39]  Additionally, Mr. Clemens could potentially be indicted by a federal grand jury on perjury charges as a result of his testimony to Congress where he vehemently denied using PEDs.[40]  Unfortunately for Mr. Clemens, the campaign to clear his name has exposed him to possible criminal charges and expensive legal fees. 

          Overwhelming evidence exists linking Mr. Clemens to the use of PEDs; including an affidavit from his friend Andy Pettitte, indicating that Mr. Clemens told Mr. Pettitte that he used PEDs.[41]  Despite Mr. Clemens’ complicated legal situation, he has expressed interest in working as a coach with the Houston Astros; however, his prospects of returning to MLB do not currently look promising.  Like Mark McGuire (who recently admitted using PEDs  so he could be hired as the hitting coach for the St. Louis Cardinals), Mr. Clemens will eventually have to admit that he used PEDs in order to resume his career in MLB.

[1] The Mitchell Report: The Illegal Use of Steroids in Major League Baseball, Day 2 Before the H.R. Comm. on Oversight & Government Reform, 110 Cong. 1 (2008)[hereinafter Steroids], available at

[2] David Sheinin, Dodgers’ Torre Has the Past on His Mind, Wash. Post, Feb. 14, 2008, at E09, available at  

[3] Katie Thomas & Michael S. Schmidt, Congress May Single Out Clemens for Investigators, N. Y. Times, Feb. 26, 2008, at D4, available at

[4] George J. Mitchell, Report to the Commissioner of Baseball of an Independent Investigation into the Illegal Use of Steroids and other Performance Enhancing Substances by Players in Major League Baseball 167 (Dec. 13, 2007), available at

[5] Mitchell, supra note 4, at 167;, (last visited Jan. 31, 2010).

[6] Mitchell, supra note 4, at SR-5.

[7] Id. at 169.

[8] Id. at 168 (“McNamee attended St. John’s University . . . majoring in athletic administration.  At St. John’s, he played baseball.  From 1990 to May 1993, he was a New York City Police Officer”). 

[9] Id. at 167.

[10] Id.

[11] Id. at 167–68.

[12] 169.

[13] Id. at 171.

[14] Id. at 172.

[15] Id.

[16] Steroids, supra note 1, at 3; Clemens v. McNamee, 608 F. Supp. 2d 811, 816 (S.D. Tex. 2009) (Andy Pettitte pitched alongside Roger Clemens as a member of the New York Yankees and Houston Astros.  Mr. Pettitte and Mr. Clemens shared a close friendship during their major league careers, and they both trained with Mr. McNamee.  Mr. Pettitte admitted that he took HGH provided to him by Mr. McNamee in 2002). 

[17] Steroids, supra note 1, at 156.  

[18] Clemens, 608 F. Supp. 2d at 817.

[19] Id.

[20] Id.

[21] Id. at 827.

[22] Id. at 821.

[23] Id. at 817.

[24] Id. at 818.

[25] Id.

[26] Calder v. Jones, 465 U.S. 783 (1984).

[27] Clemens, 608 F. Supp. 2d at 819.

[28] Id.

[29] Id.

[30] Id. at 820.

[31] Id. at 823.

[32] Shanks v. AlliedSignal, 169 F.3d 988 (5th Cir. 1999).

[33] Clemens, 608 F. Supp. 2d at 823–24.

[34] Id. at 824–25.

[35] Id. at 825.

[36] Id.

[37] Id.

[38] Clemens’ Suit Against McNamee Dismissed, Monterey County Herald (California), Sept. 7, 2009.  

[39] Id.

[40] Id.

[41] Steroids, supra note 1, at 6–7.

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