Trevor Bauer has been probably Cleveland’s best starting pitcher this year. In his long-awaited breakout, Bauer has racked up 5.9 WAR in just 166 innings on the back of a 51 ERA- and 57 FIP-. His peripherals fully support his performance: a 31.5% strikeout rate and 23.2-point K-BB% are nothing short of elite. His fastball, curveball, cutter, slider, and changeup, meanwhile, have all been well above-average offerings by pitch values. In other words, Bauer’s been Cleveland’s ace, and that’s no small feat on a team with Corey Kluber and Carlos Carrasco.
The trip to the DL made Bauer “furious.” Between rehabbing, editing All-Star Game footage, more rehabbing, taking care of business interests, and even more rehabbing, he’s trying to map out way to get back as soon as possible. pic.twitter.com/MDSui324gh
— Jordan Bastian (@MLBastian) August 17, 2018
Bauer is without a firm timetable to return. He also has a history of proposing novel and ill-advised medical procedures like sealing a cut with a soldering iron. The combination of those facts led Michael Baumann, writer for the Ringer, to tweet this.
Trevor Bauer says that the doctors' timeline for his return is based on outdated mainstream medicine and he's begun a course of blood transfusions and colloidal silver to rid his body of CIA nanites. He anticipates missing two starts, three tops.
— Michael Baumann (@MJ_Baumann) August 17, 2018
This is a joke. Colloidal silver is the quintessential snake oil, with no efficacy for treating diseases and potentially serious side effects ranging from skin discoloration (as in, you turn blue) to organ failure. Still, it continues to be marketed as a treatment or cure for the common cold, despite that advertising likely being illegal. In short, colloidal silver is quackery, and as Baumann related later, he assumed we’d know that and get the joke.
I assumed that my joke about Bauer using blood transfusions and colloidal silver to cure his injured fibula was so ridiculous it would be impossible to mistake it for actual serious reporting.
Never underestimate the capacity of humanity to prove your assumptions wrong.
— Deadspin (@Deadspin) August 18, 2018
That is a screenshot, but there’s also video in which MLB Network reports with grave seriousness that Trevor Bauer is pursuing a treatment plan of colloidal silver. I, too, would be gravely concerned if a baseball pitcher were at risk of looking like a smurf.
In any event, Bauer responded fairly quickly.
For anyone who thinks this is actually true, it’s not. Saw this on the crawl of espn. Couldn’t hear the audio so not sure how they’re presenting it but it is not true at all. @espn https://t.co/cwITJLrrxi
— Trevor Bauer (@BauerOutage) August 18, 2018
Hey @MLBNetwork and @espn I would like public statements on social media and on your networks clarifying that the information you wrongly reported as fact earlier regarding my recovery timetable and process is false and not a quote from me. The report is damaging and absurd.
— Trevor Bauer (@BauerOutage) August 18, 2018
Baumann, too, was understandably displeased.
God I hope so. MLB Network cited my name and affiliation when they ran with it last night
— Michael Baumann (@MJ_Baumann) August 18, 2018
Despite Bauer’s protestations, he probably can’t do much about this legally. We went over this in some detail when we talked about Juan Soto, but since Trevor Bauer is a public figure, for him to prove that MLB Network or ESPN defamed him, he has to plead and prove that they acted with “actual malice” — that is, they either knew it was false or acted with what’s called “reckless disregard” for the truth — essentially, that they themselves had subjective doubts about the statement’s veracity and chose to ignore them.
That would be almost impossible to prove by itself, but there’s another problem. Ordinarily, repeating someone else’s false statement is actionable defamation; it’s called the “republication rule,” and it’s designed to ensure that someone doesn’t have the ability to freely repeat a false statement stated by someone else. However, under a case called Stoneking v. Briggs out of California, reporters generally aren’t liable for repeating a statement made by another with the intent that it be republished. Now, clearly Baumann didn’t intend that his statement be republished as fact, but Tweets are clearly intended to be republished no matter the context — hence the “retweet” option.
So it seems pretty clear that despite Bauer’s demand for an apology and statement that the report was “damaging,” he doesn’t have a whole lot of recourse here. MLB Network may have done something pretty stupid, but it probably wasn’t defamatory. And ordinarily that would be the end of this story — and this article — except that, after MLB Network aired its retraction, ESPN went back and found it had never actually aired the tweet in the first place. Via Paul Hoynes:
An ESPN spokesman said Monday that it found no evidence that it ever used the tweet.
“Erroneously, some people believed it was on ESPN,” said David Scott of ESPN’s public relations department. “We have no evidence of that.”
As it turns out, ESPN never aired or reported on Baumann’s tweet at all. Of course, the irony is that Bauer didn’t just say ESPN had aired it — he claimed to have seen it on ESPN’s crawl. And that led to this apology from Bauer:
— Trevor Bauer (@BauerOutage) August 20, 2018
You can watch the video for yourself, but, per Hoynes, Bauer says that “he was told by friends and Twitter followers that MLB Network and ESPN both aired the fake tweet.” The problem is that Bauer said in his original tweet that he saw ESPN report it on the crawl, which obviously was false because it never happened. And that is a statement made with knowledge of its falsity. Companies, after all, can sue for defamation under a cause of action called “commercial disparagement.”
In other words, after Michael Baumann tweeted a joke about Trevor Bauer using colloidal silver to treat his stress fracture, which MLB Network picked up and ran as a real event, the only plausible legal claim is ESPN suing Bauer for falsely stating that ESPN reported the tweet. Alanis Morissette might have a word to say about that.
Sheryl Ring is a litigation attorney and General Counsel at Open Communities, a non-profit legal aid agency in the Chicago suburbs. You can reach her on twitter at @Ring_Sheryl. The opinions expressed here are solely the author's. This post is intended for informational purposes only and is not intended as legal advice.