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Judge Slaps Bonds on Dismissal Bid

WWW- A disappointed Barry Bonds and his lawyers considered dropping their legal challenge against the authors of the book “Game of Shadows” yesterday after a California judge slapped down their first motion, sources close to the case told the Daily News last night.

Bonds sued in California state court, asking a judge in San Francisco for a temporary restraining order to seize the profits from the book by San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams. The motion for the restraining order, which was denied, was part of a larger lawsuit seeking a permanent injunction.

The lawsuit does not challenge the accuracy of the book, but instead argues that because the authors got their information illegally from secret grand jury testimony, they should have to forfeit all profits. Legal experts said it was an unprecedented argument in a case involving free speech, and the day didn’t go well for Bonds.

“I really have a hard time understanding what the plaintiffs are seeking,” said Superior Court Judge James L. Warren, the grandson of the late chief justice of the United States Supreme Court, Earl Warren. “I question the likelihood of success of the underlying action.”

While the motion was denied, the lawsuit will go forward unless Bonds withdraws it. He has incentive to do so. As the Daily News reported they would, the authors’ attorneys fired back with a countersuit under California’s anti-SLAPP (strategic lawsuit against public participation) statute, a law designed to protect parties from lawsuits meant to stifle free speech. Only lawyers for the Hearst Corp., which owns the Chronicle, filed a countersuit. Attorneys for Penguin Group publishing and Sports Illustrated, also named as defendants in the suit, said they will file anti-SLAPP suits.

So instead of denting the book’s case that Bonds used steroids and human growth hormone as far back as 1998 and seizing the profits, Bonds’ suit gives the allegations a pass and may force him to pay attorneys’ fees for the defendants if the anti-SLAPP countersuits are successful.

The book, which was excerpted in Sports Illustrated two weeks ago and released Thursday, contradicted Bonds’ grand jury testimony that he never knowingly took steroids by saying he knowingly took them and human growth hormone as far back as late 1998. The book also says that Gary Sheffield knowingly used injectable steroids, despite his claims in 2004 that he used only a steroid cream without knowing what it was.

Speaking in the hallway outside the courtroom, Bonds’ attorney, Michael Rains, said he was trying to restore the sanctity of the legal system.

“This is not a case of First Amendment or repressing free speech. People should have the ability to speak out about steroid abuse,” he said. “What this case is about is whether or not people should be able to profit from illegally gained evidence. Barry is not trying to make any money off this case. But Barry has denied taking steroids but has been harmed like all the people in California from the illegal disclosure of grand jury materials.”

Bonds was arguing that because the authors used illegally obtained secret grand jury testimony, they should have to forfeit their profits under California’s unlawful competition act. Defense attorneys had fun with that claim in their response.

Under that law, they argued, even if he had a case, Bonds would only be entitled to money he gave the authors directly.

“The only disgorgement of profits Bonds can seek is for the money he spent to buy a copy of ‘Game of Shadows,’ or for the newsstand price of the Sports Illustrated issue with the excerpt” of the book.

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