SANTA ANA, Calif. – An attorney for embattled baseball pitcher Trevor Bauer made another round of forceful arguments in a courtroom Monday, but this time it wasn’t to defend him from allegations of hitting and choking a woman from San Diego in 2021.
Bauer’s attorney instead was on the attack against that woman and her former attorney, Fred Thiagarajah – all part of his larger quest for payback against those he blames for the troubles he’s faced since the San Diego woman went public with her allegations in June 2021.
It is no small fight. After his baseball career came to a halt amid those allegations last year, Bauer has sued two sports publications, two journalists, the San Diego woman and Thiagarajah. He accuses them all of defaming him. And on Monday a federal judge heard arguments in the latter case to answer a specific question: Should Thiagarajah be spared from one of Bauer’s lawsuits?
Bauer’s attorney, Nell Peyser, said absolutely not. They want to keep suing him after Thiagarajah was quoted in a Washington Post article in February saying that there was “no doubt that Mr. Bauer just brutalized” his client last year at Bauer’s house in Pasadena. The woman went to the hospital after their second sexual encounter in May 2021, when she was diagnosed with an acute head injury and assault by strangulation. But his lawyers still say that statement by her attorney was false and defamatory.
“Mr. Bauer did not brutalize (the woman),” Peyser told U.S. District Judge James V. Selna.
The judge wasn’t immediately persuaded Monday. He took the matter into submission and is expected to rule soon.
Bauer, 31, was never arrested or charged with a crime. He said his relations with the San Diego woman involved consensual rough sex, and he has taken his cause to three different federal judges in three separate lawsuits. He did not appear at Monday’s hearing, but the San Diego woman did, accompanied by her own attorney.
“Bauer is going all out to prove the accuser had an improper motive when she first accused Bauer of wrongdoing,” said David Ring, an attorney in Los Angeles who has represented sexual assault victims but is not involved in the Bauer cases. “He appears to be willing to do whatever necessary to show he was wrongfully accused from the start.”
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Why is Bauer doing this?
Bauer was suspended for two seasons by Major League Baseball in April amid allegations that he roughed up women during sex without their consent, which he denies. He has not appeared in a game since June 2021, when the woman from San Diego accused him of assaulting her during the two sexual encounters at his home in April and May 2021.
But his legal team has remained active in the meantime, fighting those he wants to hold responsible for many of the problems he’s faced after signing a three-year, $102-million contract with the Los Angeles Dodgers in February 2021. His representatives have been appealing his suspension and continue to pursue the lawsuits on his behalf, each filed in March or April – one against The Athletic and its former writer Molly Knight, a similar pending case against the sports website Deadspin and a Deadspin editor, plus this one against the San Diego woman and Thiagarajah.
“Defamatory articles such as the one published by Deadspin contributed to the unreasonably harsh public backlash against Mr. Bauer, as well as the unprecedented punishment he received from MLB,” his attorneys at Zuckerman Spaeder LLP wrote in a court filing in July.
He is seeking damages in these cases and seeks to counter the negative narratives about him.
What is this case about?
A February 2024 trial date has been set in Bauer’s defamation case against the San Diego woman and Thiagarajah after he sued her and accused her of making false statements about what happened between them last year.
She said he went too far during rough sex, including punching her without her consent. She then applied for a restraining order against him last year and attached medical notes to her request that also said she had “signs” of a basilar skull fracture.
But after hearing her testimony in August 2021, Judge Dianna Gould-Saltman ruled against her request for a five-year restraining order against Bauer, noting then that while the photos of the woman’s injuries were “terrible,” her initial request for a temporary restraining order in June 2021 was “materially misleading.”
“She was not ambiguous about wanting rough sex in the parties’ first encounter and wanting rougher sex in the second encounter,” Gould-Saltman said in August 2021.
The same woman countersued Bauer in August 2022, renewing her allegations against him. Her lawsuit is seeking damages according to proof and states that Bauer sued her for defamation April 25 as part of a “public relations blitz” to improve his reputation.
In response, his attorneys said the woman is again seeking to profit from “lies.” They also noted the Pasadena Police Department recently produced a videotape that Ms. Hill took of herself shortly after the May 2021 encounter in which she appears to be “willingly in bed with a sleeping Mr. Bauer, and is smirking and uninjured.”
Two other women have made similar allegations against Bauer, as reported by the Washington Post. After investigating the cases, MLB announced its suspension against Bauer April 29. He previously had been on paid administrative leave since shortly after the San Diego woman filed her request for a restraining order.
What about the lawyer?
Thiagarajah’s comments to the Washington Post were made after the Los Angeles District Attorney’s Office declined to file criminal charges against Bauer for what happened between him and the San Diego woman.
Thiagarajah’s attorneys have stated that the “the gist and sting’ of his statements to the Post were true.
If it’s true, it can’t be defamation — a defense that various defendants in these cases have been testing in their efforts to convince the courts that Bauer’s lawsuits should be dismissed.
“A viable defamation claim requires the existence of a provable falsehood,” Thiagarajah’s attorneys noted in court documents.
They cited the dictionary, noting the word “brutalize” means to “treat brutally.” They also noted Judge Gould-Saltman’s ruling from last year in which she said the photos of the woman’s injuries were “terrible.” They said Thiagarajah was commenting on that and was merely providing a “fair and true report” of that proceeding, which is protected by law. He should not be held to “literalism” on what the word “brutalize” means, Thiagarajah’s attorney, David Samani, told the judge Monday.
“The First Amendment provides that you can’t be liable for perhaps using a word that is more colorful than another alternative,” Samani said.
Bauer’s attorneys say that doesn’t matter because Thiagarajah’s statement is false. “No `brutalization’ occurred in the real world,” they said in court filings.
Selna previously issued a tentative ruling on this matter that granted Thiagarajah’s motion to dismiss him from Bauer’s lawsuit. In that tentative ruling, Selna cited Thiagarajah’s First Amendment right to free speech while also noting that Bauer had “conspicuously” omitted a portion of Thiagarajah’s statement to the Post in his complaint against him. In the same Post article, Thiagarajah tempered his assessment of the situation, saying that “the issue was whether or not she consented to the abuse.”
“Can’t I look at the totality of the statement?” Judge Selna asked Monday. “Do I have to isolate that one word `brutalized’?”
In a court filing, Bauer’s attorneys said they weren’t trying to obfuscate any portions of Thiagarajah’s statements but instead were focusing on the portions of that they believed to be false and defamatory.
‘It’s clear from the article itself that Mr. Thiagarajah’s is not commenting on the judge’s finding in the (restraining order) proceeding,’ Peyser said.
Peyser also repeated Bauer’s argument that the woman and her attorneys ‘doctored’ photographs of her injuries to make them appear more severe. The woman’s bruising, she said, was a ‘natural consequence’ of consensual rough sex.
What are the other cases about?
Bauer’s attorneys say both The Athletic and Deadspin published a “slew of articles” impugning Bauer, but the lawsuits are particularly focused on how the publications and writers described allegations against Bauer filed in court by the San Diego woman in June 2021.
Bauer’s lawsuit said The Athletic and Knight defamed him by “creating and spreading the false narrative that Mr. Bauer fractured the (woman’s) skull.”
Several news media outlets, including The Athletic, reported on the woman having “signs” of a skull fracture because that is what the court records stated in the woman’s request for a temporary restraining order against him last year.
Knight wrote about the encounter in three short posts on Twitter, where she described a “cracked” or “fractured” skull.
“There seems to be some confusion surrounding the issue of consent but here is some clarity: it’s not possible to consent to a cracked skull,” said one of the Tweets from July 2, 2021, which since has been deleted.
Bauer’s representatives say this was false and defamatory because the San Diego woman actually had no skull fracture, as evidenced by a medical report attached to the same court records filed by the same woman. A CT scan showed ‘no acute fracture,’ according to the medical report.
Her attorneys argued in court documents that they “constitute constitutionally protected opinion” and “even if they could be read to assert facts … the Tweets are substantially true.”
What did the articles say?
Bauer’s lawsuit said The Athletic also defamed him in an article published June 30, 2021. That article noted the woman had “signs” of a skull fracture but omitted the information about the CT scan showing no acute fracture, according to the lawsuit. This article was written by other writers, not Knight, and was later updated after Bauer’s representatives issued a demand letter, according to the suit. The updated article notes a “CT scan found no acute fracture.”
Bauer’s lawsuit still stated The Athletic “exhibited actual malice” against him by “deliberately omitting the CT scan results.”
“By omitting those results, the Article conveyed the false message that the Complainant had suffered a skull fracture,” Bauer’s lawsuit stated.
In the Deadspin case, Bauer focuses on an article published on July 6, 2021, which cited The Athletic’s reporting from June 30, 2021. The Deadspin article said the San Diego woman didn’t consent to have ‘her skull fractured’ in an incident with Bauer, according to the lawsuit. After being contacted by Bauer’s representatives, Deadspin removed this phrasing and updated the article to note that a CT scan found “no acute fracture.”
Bauer still sued. Deadspin’s attorneys say his case lacks merit.
“The operative question is … whether there is a substantial difference between being beaten so badly as to show `signs of a skull fracture’ and being beaten so badly as to have `a fractured skull,’ and whether interchanging those two would have altered the `gist’ of the full, contextualized statement of the author’s opinion,” Deadspin’s attorneys stated in a court filing July 29. “The answer to that question is clearly no, including because the Article was revised within days to remove the allegedly false statements, and yet the gist of the challenged statement – and the story – remained exactly the same.”
How are the defendants fighting back?
Attorneys for The Athletic noted that Bauer is a famous athlete at the center of a public controversy and said that its reporting on him is free speech protected by law.
“The legal issues here are very narrow: whether a single line in a story by The Athletic and three tweets by reporter Molly Knight defamed him,” they stated in a court filing. “They did not.”
They said the article in question was “substantially true” and therefore not defamatory. After an initial CT scan did not detect a skull fracture, they noted a follow-up MRI was ordered at the time to confirm that conclusion.
The result of that follow-up MRI was not included in the San Diego’ woman’s petition for a temporary restraining order filed in June 2021, the attorneys said. “Put simply, the Petition and its exhibits left open the possibility that there was a fracture — which is, according to Bauer, also what the Article conveyed.”
Bauer’s lawsuits could take years to resolve.
“His claims for defamation seem very difficult to win,” said Ring, the Los Angeles attorney. “But it appears his true goal in bringing those claims is to have other reporters ‘think twice’ before writing negative stories about him.’
Follow reporter Brent Schrotenboer @Schrotenboer. E-mail: bschrotenb@usatoday.com