Judd Burstein's dog might never get its day in court.
Burstein, the colorful New York attorney who represents boxer Shane Mosley, recently said that his "toy red poodle" could win Mosley's $12 million defamation suit against BALCO
founder Victor Conte. But Burstein is all bark, according to legal experts who say the two-year-old case probably won't ever reach a jury.
founder Victor Conte. But Burstein is all bark, according to legal experts who say the two-year-old case probably won't ever reach a jury.
"There's a good likelihood that a judge will throw it out on summary judgment before it gets that far," says Peter Keane, a law professor and BALCO expert at Golden Gate University in San Francisco who has followed the case closely."There are no damages," Keane says. "Assuming the unlikely aspect that he wins (the case), what are the damages? How does he show anything like lost income or lost reputation?"
According to a source familiar with the case, Conte's legal team will soon file a summary judgment motion asking New York State Supreme Court Justice Louis York to dismiss the case based on the argument that Conte could not have defamed or damaged Mosley by accusing the boxer of something Mosley himself admitted to doing.
Mosley first sued in 2008, shortly after the Daily News published a story in which Conte disputed Mosley's public statements that his doping was inadvertent. In the story, Conte said he taught Mosley how to use BALCO's designer steroids and how to injected the endurance-boosting doping agent erythropoietin, or EPO. Mosley "knew precisely what (he was) using," Conte said in the story. "It was all explained up front and there was no deception."
The News has since published excerpts of Mosley's once-secret 2003 grand jury testimony, in which Mosley describes the detailed conversations he had with Conte about the EPO, which Conte told him how and when to inject. And earlier this month Conte and Burstein each posted YouTube video of a deposition Mosley gave last October in which Mosley describes the meeting once again.
In one of the YouTube clips, Mosley is pressed about his claim that he didn't know the drug was EPO until he went to the grand jury. "I must've had to known I was taking EPO," Mosley says. "I guess I had to have."
The clip has been viewed more than 17,000 times in two weeks. Burstein says it was unfairly edited, and posted the entire deposition on YouTube. Conte's lawyers believe it negates the claim itself.
If Conte's lawyers prevail with their summary judgment bid, the source said, they will consider countersuing Mosley for malicious prosecution and try to recoup attorney fees, which have climbed into the hundreds of thousands.
Mosley and Burstein have already triumphed in one important respect, however; their legal threats seem to have helped torpedo Conte's deal for a tell-all book. Skyhorse Publishing originally planned to release "BALCO: The Straight Dope on Barry Bonds, Marion Jones, and What We Can Do To Save Sports" in 2008, but Burstein promised to sue both the company and their insurance backers if they published.
In an April 15 interview with The News outside York's courtroom, where contentious settlement talks failed, Burstein said he was confident he could destroy Conte's credibility on the witness stand. Burstein shared internal Skyhorse e-mails in which an editor there expresses distrust in Conte, although not apparently over any of the veracity of the Mosley revelations. The e-mails circulated in the weeks after Burstein aired his threats.
An attack on Conte's credibility, however, is nowhere near enough to get past the First Amendment, says Herschel Fink, a noted defamation lawyer from Detroit.
"You almost need e-mails from Conte saying 'I can't prove this is true, but it makes a good story,'" Fink says. "The burden of proof is on the plaintiff, of course, to show not only that the statement is false, which is often difficult, but again that the speaker knew it was false or had a high degree of doubt," says Fink.
Defamation lawsuits have become a standard weapon in sports doping cases. Plaintiffs in recent years have included Roger Clemens, Lance Armstrong, and Jones (who also sued Conte, for $25 million, before admitting guilt and going to prison). Such complaints rarely end with the trial verdict they supposedly seek. According to statistics compiled by the Media Law Resource Center, there number of trials of libel, privacy and related claims against media defendants has steadily declined, from 266 in the 1980s, to 192 in the 1990s, to 124 in the first decade of the 2000s.
Olympic-style drug testing hasn't prevented either Mosley or Mayweather from leveling casting aspersions on the opposing camp. Mosley speculated this week that Mayweather "dibbles and dabbles a little bit" in steroids, and Mayweather responded by accusing Mosley of perjury.
"We do know this: We know that Shane lies under oath," Mayweather said. "So we know one thing that is going to happen. If Marion Jones went to jail, we know that Shane is going to jail."
Mosley said in a conference call earlier this month that a question about steroids was "stupid" because his BALCO associations were so far in the past. But he is the plaintiff driving the defamation case that has put his history under the magnifying glass. From a public relations perspective, Mosley's defamation adventure has backfired the same way that of Clemens' did.
"Before all these other revelations came out, in terms of his admissions, he was in a little bit of a stronger position," says Keane. "His chances were very slight, but with the new revelations I think Mosley's going to have a tough time establishing libel."
Source: nydailynews.com
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