By Margaret M. Kelly, Esq.
Vijay Singh’s current rumble with the PGA Tour began all the way back in January, 2013 (back when Tiger Woods was still Crown Prince of the Tour, and Singh was still in the top 100). Singh honestly acknowledged in an interview with Sports Illustrated that he had used a product called “deer antler spray.” According to Singh’s eventual lawsuit, he agreed to an interview for the article thinking merely he was voicing his support for a helpful supplement. The PGA reacted reflexively to this information — notifying Singh shortly thereafter that he’d used a banned substance in contravention of the Tour’s anti-doping regulations; that he would be suspended for 90 days; and that the Tour planned to withhold roughly $100,000 in earnings.[1] The PGA leapt before it looked, it turns out. Neglecting to perform basic laboratory tests on the product in question before presumptively suspending Singh, withholding thousands in earnings and perhaps worst of all, slinging undue mud on his name.
According to the offending product’s website, “The Ultimate Spray” contains “velvet from the immature antlers of male deer.” In the Sports Illustrated article, Vijay granted that he used a product called deer antler spray, but reported he did not know it contained trace amounts of a banned performance enhancer called IGF-1. In a statement coinciding with the article’s release, Vijay stated he had also checked the list of ingredients to try to ensure compliance with the Anti-Doping Program.
The Tour reacted with a three-month long investigation into the facts and circumstances regarding Vijay’s use of the spray, and exactly what it contained. The Tour spent the large part of three months investigating the matter before it even reached out to WADA, the organization that administers the Tour’s Anti-Doping Program, specifically inquiring about IGF-1. In response, WADA provided the following:
In relation to your pending IGF-1 matter, it is the position of WADA, in applying the Prohibited List, that the use of “deer antler spray” (which is known to contain small amounts of IGF-I) is not considered prohibited. (emphasis added)
On the other hand, it should be known that Deer Antler Spray contains small amounts of IGF-1 that may affect anti-doping tests.
Players should be warned that in the case of a positive test for IGF-1 or hGH, it would be considered an Adverse Analytical Finding.[2]
Perhaps if the Tour had just dropped it there, then we would not still be reporting on this case three years later. But instead, the Tour issued a public statement recounting the details of Vijay’s admission and the ensuing investigation, noting that all charges had been dropped. Still, this release had the effect of alerting the public to suspicions about Vijay’s integrity.
Singh’s Complaint against the PGA Tour
In a groundbreaking about-face, Vijay turned around and filed a seven-count lawsuit against the PGA Tour alleging undue “public humiliation and ridicule” related to its alleged mismanagement of the investigation, its failures to follow its own procedures and its reckless disregard for Vijay’s reputation in the aftermath. Singh sought damages and punitive damages for negligence, breach of faith, breach of fiduciary duty, intentional infliction of emotional distress, and conversion.
According to Singh’s complaint and unrefuted by the Tour, some two years before the Singh/Spray scandal came to light, PGA Tour golfer Mark Calcavecchia acknowledged using the same product and actively promoting it as well. But in 2011, the Tour had a much more muted reaction to Calcavecchia’s identical “crime.” It simply directed Calcavecchia to stop using the Spray. It did so without even testing the product for compliance with its Anti-Doping Program. Part of Singh’s complaint is if the Tour had responsibly tested the product when the issue first presented itself in 2011, it would have been aware that the product was benign and entirely permissible. Singh’s name never would have been dragged through the mud of a prolonged “anti-doping” investigation where his integrity was publicly questioned, and his reputation unduly tarnished.
Furthermore, the complaint alleged—and the tour has not refuted—that reliable “scientists have compared the amount of IGF-1 contained in the Spray to the amount contained in a dose of Increlex as pouring a shot of bourbon into an Olympic-sized swimming pool and then taking a shot of the pool water compared to taking a straight shot of bourbon.” Not stopping there, Sing’s lawsuit also alleged that even those trace amounts of the purportedly “banned substance” were themselves, inert. Incapable of affecting his performance in any way other than by placebo. More specifically, Singh claims that the IGF-1 (Insulin-Like Growth Factor) in the spray is “biologically inactive” and can’t be absorbed by the body except by injection. Ultimately, the complaint’s analysis concluded that “the speciousness of the PGA Tour decision to discipline Singh is all the more evident because cow’s milk contains IGF-1.” The point being—no golfer has ever been sanctioned for a milkshake.
So Singh may indeed be rightfully teed-off at the PGA Tour for the way it handled his case. Several other dubious decisions on the part of the Tour came to light in the wake of Singh’s lawsuit. According to a memorandum filed with the New York State Supreme Court, Singh accused the Tour of subjecting him to “absurd” treatment to the extent it ignored the use of antler spray by at least five other professional golfers and then misleading the public by “characterizing Singh as a cheater who caught a break.” The same memo noted that when Tour Commissioner Finchem was asked in discovery, under oath, to explain his “multiple, false and misleading public statements about the Singh matter,” Commissioner Finchem strikingly “refused to respond to the questioning…and instead, stormed out of the deposition, and refused to return.”
By February 2015, Vijay had already deposed eleven witnesses — among them: Tour employees, WADA executives and a fellow golfer—Mark Calcavecchia—who had himself admitted to using the spray years earlier, to no professional detriment.[3] Further Exhibits, letters, emails etc. were filed throughout the summer. It wasn’t until November 27, 2015 when the Tour’s motion for summary judgment was denied and a trial date was set: April 5, 2016. But by this Spring (May, 2016) the parties were still engaged in pre-trial conferences. Two more opposing motions have been filed in the past month.
So the question becomes: is it fair to allow the PGA Tour to excoriate—publically or otherwise—one of its players without engaging due process or even, ultimately, reasonable factual foundation for its reaction? Granted, the Tour dismissed its proceedings against Singh immediately following its decision to take the spray off the banned substance list. It followed its rulebook judiciously, and acted appropriately given the reasonably-available knowledge at the time. But the Singh’s lawsuit is shot through with the contention that his name and professional reputation were hardly spared. According to his complaint, “Singh has been labeled by the PGA Tour, media, some fellow golfers and fans as someone who intentionally took a banned substance in an effort to gain a competitive advantage.” Furthermore, the complaint intimated, “golf is undeniably a mental game. Faced with an unjust blemish on his personal and professional record, Singh struggled to keep his focus and play at the level that has made him one of the game’s all-time greats.” So beyond Singh’s legal rights, is there something more, here, he seeks to vindicate?
Ultimately, Mr. Singh has made his position loud and clear: his treatment at the hands of the Tour was not only unfair, but illegal. As of three weeks ago, Singh filed a motion on record stating his claim is not limited to the suspension and investigation, but in fact extends to the PGA’s overall conduct, which Singh alleges has included overt mocking at an event for tour sponsors, and public misrepresentations of the driving forces beyond the Tour’s decision to drop its ill-fated case against Singh.
….And again, he swings.
[1] “In a letter dated February 19, 2013 (‘Suspension Letter’), the PGA Tour informed Singh of his discipline,” the complaint states. “Then disciplinary aspect of the Suspension Letter reads: ‘After considering all of the information in this case, the Commissioner has concluded that your conduct is a violation of the Program rules. The sanction imposed on you for your clear violation of the Program rules is ineligibility to participate in PGA Tour or Web.com Tour competitions and any related activities for a period of 90 days. Given that your earnings have been held in escrow since your participation in the AT&T Pebble Beach National Pro-Am, your suspension will begin retroactively to February 4, 2013 and will conclude May 11, 2013. Your results, earnings and FedExCup points from both the 2013 AT&T Pebble Beach National Pro-Am and the 2013 Northern Trust Open will be redistributed.'”
[2] See PGA Tour Statement Regarding Vijay Singh, PGA TOUR (Apr. 30, 2013), http://www.pgatour.com/news/2013/04/30/pga-tour-statement-regarding-vijaysingh.html
[3] Singh’s lawyers later argued, on this plane, that “knowing it needed to rationalize this obvious disparate treatment of Singh, the Tour during the course of this litigation attempted to justify its arbitrary treatment of Singh by claiming that other golfers who had used the SWATS products played on the Champions Tour and that the Program does not apply to Champions Tour golfers.”
