The Roger Clemens saga kicked into another gear yesterday as he and his former trainer and now accuser, Brian McNamee, appeared before a Congressional committee to testify under oath about whether Clemens did or did not use illegal performance enhancing drugs.  For more on this story, click here, here, here, and here.

What does this have to do with the workplace and employment law?  During the hearing, McNamee described Clemens as his employer.  He followed his employer’s instructions by injecting him with steroids.  This former police officer lied about it for a long time, but finally, the pressure or his conscience got to him, and he’s now telling the truth.  Clemens admits this relationship and that McNamee injected him with vitamins but not illegal drugs.  So, an employee has publicly accused an employer–not just any employer but the biggest pitcher in professional baseball–of unlawful conduct.  It’s sort of like an administrative assistant blowing the whistle on the CEO for cooking the company’s books.  It’s serious stuff, and it happens.  When it does, it’s easy to see how the accused becomes emotional, wants to clear his name and is determined to tell anyone who will listen what a pack of lies is being used against him.  So, Clemens’ reactions to McNamee’s charges, first made public in the Mitchell report, are understandable.  But Clemens shows us almost everything, in my opinion, that the employer and the CEO or executive shouldn’t do.

Clemens started talking to the press almost immediately after the Mitchell report was released.  He even went on 60 Minutes to tell his side of the story.  This is problematic, because you end up saying a lot of things.  You get questions you weren’t expecting, and you give incomplete answers.  Everything you say is recorded, and when you do a lot of talking, you’re going to say some things that will be deemed as inconsistent.  

Clemens said that he didn’t talk with former Senator George Mitchell or his staff while the Mitchell investigation was ongoing, because he didn’t know he was being accused of such serious things and he was advised by his counsel not to do so.  Clemens began talking too late.  Generally, it’s never a good idea to stiff the investigator.  Take your lawyer with you, but you almost always need to cooperate.  While the Mitchell report may have still implicated Clemens, it would have been different if Clemens had talked with Mitchell.  It would have probably been less incriminating.  At the very least, it wouldn’t have said that Clemens refused to cooperate.

Clemens secretly taped one or more conversations with McNamee after the Mitchell report was presented and then released them to the public.  In some states, that’s illegal.  Even if it’s not, don’t do it.  It made Clemens look like what he accused McNamee of being–an underhanded so-and-so.  Nobody wants their conversations to be secretly recorded.  It creates sympathy for the person being secretly recorded.  It apparently made McNamee so mad that he became even more antagonistic toward Clemens.

Clemens talked to a witness (a former nanny) the Congressional committee had been trying to find before the committee found her.  Although what she ended up telling the committee was inconclusive and seemed to be about a gathering different from the one being focused on by the committee, it appeared that Clemens was trying to tell her what to say.  In fact, a member of the committee labeled it as witness tampering.  Maybe your lawyers track down witnesses and talk with them, and even that can be tricky at times. But you don’t do that–not when you’re Roger Clemens–not when you’re the CEO or some other company big wig.  It’ll always make you look bad.

According to the chairman of the Congressional committee, the only reason this hearing was held was because of Clemens’ insistence.  The committee had already taken depositions of the key people, including Clemens and McNamee, and had gathered affidavits.  They apparently felt they had all they needed.  But Clemens wanted a public hearing–because he was angry–because he wanted to save his reputation.  That almost never works, particularly after you’ve said as much to as many different people as Clemens has.  Clemens should have sucked it up and realized that a hearing before a Congressional committee of prima donnas wouldn’t accomplish anything he wanted to accomplish.

All the news reports on this hearing say that Clemens was awful at the hearing, probably a liar.  They say McNamee was cool and calm, probably telling the truth.  I didn’t watch the entire hearing, but I watched most of it last night on C-Span.  While I have no idea who is telling the truth or lying, the news reports of the hearing are as shameful as the entire handling of the steroids in baseball scandal, which started with the commissioner of baseball, the owners, and apparently most of the players knowing that illegal performance enhancing drugs were being routinely used but doing nothing about it.  The media and the fans finally figured it out when the numbers being put up by the top players became too much to swallow.

Under pressure, Commissioner Bud Selig then ordered the Mitchell report.  Unsworn statements were taken from a sampling of players and other people involved in the scandal.  They made damning accusations but without any cross-examination from the people being accused.  To top it off, the Mitchell report was made public, calling a bunch of players cheats based on these unsworn statements of uncross-examined witnesses as subjectively interpreted by Mitchell and his investigative staff.

Finally, Congress made the Mitchell report part of an investigation that has been ongoing, sort of, for a while, culminating in yesterday’s hearing.  Although Congressional hearings have turned into bigger circuses than the one yesterday, it too was a circus.  One of the committee members even called it that.  Another committee member called the hearing a new kind of lynching, reminding many observers of Justice Clarence Thomas’ accusation that the Senate Judiciary Committee had turned his Supreme Court confirmation hearing into a hi-tech lynching.

And now the media,  apparently the final arbiter of these sorts of things, has decided Clemens was lying.  That means he was injected with illegal drugs.  The news reports and analysis say the evidence is overwhelming.  You’ve got the Mitchell report, which would never be admissible in a court of law.  You’ve got the depositions and affidavits given to the Congressional committee, though the depositions and affidavits were given without any cross-examination.  You’ve got the “cross-examination” of McNamee and Clemens by the members of the Congressional committee, and McNamee was a good witness, while Clemens was a bad witness.  This so-called cross-examination approached the absurd as committee members switched back and forth with their questions between McNamee and Clemens.  Lawyers weren’t allowed to object to inappropriate questions, and there wasn’t a judge to determine what evidence was legally worthy of consideration.

Why was McNamee a better witness than Clemens?  He was cool and calm.  He gave short, direct answers.  He never seemed upset.  He remembered incredibly vivid details of events (the color of the bathing suit the Clemens’ nanny was wearing at a party in 2000) and conversations (the exact words another trainer had said to him about other players using steroids in the 90’s) that occurred 8-10 years ago.  Two of the three players McNamee fingered admitted that they were injected by McNamee with illegal drugs, so he must be telling the truth about the third player, Clemens.  McNamee had nothing to lose.  He was getting his 15 minutes of fame.  He had been coached well.

Clemens had everything to lose, although he’s probably already lost it.  Like most normal human beings, his memory was hazy about events and conversations occurring a long time ago.  He said repeatedly that he had never been injected with performance enhancing drugs, but his less-than-perfect memory about these events and conversations of the past made his denial seem shaky to media observers.  He wasn’t calm.  He was combative.  He was trying to reclaim his reputation.  He has had much more than 15 minutes of fame, and he wanted to keep it.  I’m sure Clemens had been coached, but I also have a feeling that he’s difficult to coach, maybe not in baseball but in this kind of situation.  When you’re that big, you think you know more than you do.  It’s hard to take advice, particularly when it’s your reputation that’s on the line.  Although Clemens may be the Rocket, he proved yesterday he’s no rocket scientist.  Does that mean he’s lying?  I have no idea.

What I do know is when you let something personal get under your skin and stay there, you’re going to make bad decisions, and those decisions will make you look bad.  If one of your employees accuses you of something terrible, there’s no way not to take it personally.  If you’re smart, however, you’ll punch a hole in the wall and then turn the matter over to someone else who can approach it objectively and give you advice based on reason rather than emotion.

Elton John was surely not thinking of Roger Clemens when he wrote one of his big hits, but the song may be speaking to Clemens and all of us today:

“And I think it’s gonna be a long long time, Till touch down brings me round again to find, I’m not the man they think I am at home, Oh no no no, I’m a rocket man, Rocket man burning out his fuse up here alone.”