(Editor’s note: the article below was originally published on July 26, 2013 in Vol. 10, Iss. 13 of Sports Litigation Alert. An update, as of November 25, 2013, has been incorporated toward the end)
By Scott A. Andresen[1]
“Life every man holds dear; but the de[er antler spray] man holds honor far more precious dear than life.”
—William Shakespeare [for the most part]
Background
With the application of a contemporary interpretation usually reserved for the writings of his 16th century counterpart, Nostradamus, the words of the Bard of Avon become eerily prognosticatory when applied to the events of the first half of 2013.
Beginning in 2008, the PGA Tour implemented its Anti-Doping Program with a prohibited substances list essentially identical to that created by the World Anti-Doping Agency. On January 29, 2013, an article appeared on Sports Illustrated’s website describing the efforts of one company to create products which could legally assist athletes’ physical condition. The article listed PGA member and World Golf Hall of Fame player Vijay Singh as being a user of “deer antler spray”. Upon publication of the article, Singh immediately contacted the PGA Tour to discuss his use of deer antler spray and delivered a bottle of the product to the PGA Tour for testing.[2] Analysis of the spray identified it as containing Insulin-Like Growth Factor-1 (IGF-1), but allegedly did not determine whether this IGF-1 was the same substance banned by WADA/PGA Tour. The PGA Tour subsequently suspended Singh for 90 days, a suspension that Singh immediately appealed.
After considerable research in connection with his appeal and arbitration proceeding, it was propounded by Singh on April 24 that the deer antler spray is incapable of having any physiological effect when taken as a spray (requiring, instead, injection into the body). As a result, WADA advised the PGA Tour on or about April 26 that it was removing the product from its banned substances list- information that the PGA Tour did not disclose to Singh for several days, despite knowledge that Singh and his advisors were diligently preparing for a May 7 arbitration. Finally, on April 30, the day the PGA Tour was required to submit a reply brief in the arbitration, the PGA Tour announced that it was dropping its case and would not seek to impose any discipline against Singh.
The Complaint
Singh sued the PGA Tour in New York state court on May 8 for three counts of negligence, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, intentional infliction of emotional distress and conversion arising out of “the PGA Tour’s reckless administration and implementation of its Anti-Doping Program.”[3]
The Complaint alleged that the PGA Tour breached a duty to Singh to determine: (i) which substances were necessary to ban to protect the integrity of the sport of golf, (ii) whether the substance allegedly consumed by Singh was actually banned, and (iii) whether Singh “used” IGF-1 as necessary for the imposition of penalties under the Tour’s ant-doping program. The Complaint further alleged that the Tour: (iv) breached its implied covenant of good faith and fair dealing by failing to conduct a thorough and fair investigation before accusing Singh of a doping violation, (v) breached a fiduciary duty to Singh by failing to develop and administer its anti-doping program in a responsible manner, (vi) subjected Singh to severe emotional distress, and (vii) improperly converted Singh’s earnings [when it held $100,000 of Singh’s earnings in escrow pending his appeal].
PGA Tour’s Motion to Dismiss
The PGA Tour filed a motion to dismiss Singh’s Complaint on June 12, arguing that the action is barred by the Tour membership agreement signed by Singh providing that arbitration is Singh’s sole and exclusive remedy for any discipline imposed under the Tour’s anti-doping program- a remedy that had already, according to the PGA Tour, been afforded to Singh. The pleading also asserted that the Complaint should be dismissed under the doctrine of judicial non-interference in the affairs of voluntary, private associations, such as the PGA Tour. Finally, just for good measure, the PGA Tour argued that the Complaint should be dismissed for failure to adequately state any claims against the Tour.
Singh and the PGA Tour filed subsequent responsive pleadings on July 8 and July 19, respectively. Having been fully-briefed, the parties are currently awaiting a decision on the PGA Tour’s motion.
Update of November 25, 2013
Oral arguments on the PGA Tour’s motion to dismiss were heard on October 24, 2013. The main arguments raised by each of the parties can be summarized as follows:
PGA Tour
The PGA Tour’s primary argument is that Singh’s case should be dismissed because Singh agreed to the following by virtue of his signing the PGA’s annual membership form in 2013: to comply with the PGA Tour’s Anti-Doping Program, to use arbitration as the sole and exclusive method for resolving any dispute related to drug testing, and to release all claims arising under the PGA Tour’s Anti-Doping Program.
The PGA Tour further contended that Singh’s only plausible argument refuting the validity of his agreement with the PGA Tour would be to show that the signed annual membership form was a contract of adhesion. However, the PGA Tour went on, Singh does not allege any of the elements (e.g., high pressure tactics, deceptive language, unconscionability) required to show the form was a contract of adhesion.
Vijay Singh
Singh argued the following:
The PGA disciplined Singh without “doing a modicum of analysis” on the deer antler spray used by Singh to see if the spray had any banned substances;
The substance actually banned by the PGA Tour was not present in the spray utilized by Singh (i.e., the IGF-1 in the spray was not the same as the substance on the PGA Tour’s list of banned substances);
The PGA Tour’s argument that Singh’s admission to using the spray was enough evidence needed to discipline Singh is undermined by the fact that Singh never admitted to using a banned substance, as no banned substance was found in the spray;
The PGA Tour violated its covenant of good faith to properly administer the drug program and treat all its members the same when it disciplined Singh for his use of deer antler spray. The PGA Tour singled out Singh when, in the past, the PGA has made numerous exceptions when it came to disciplining players for violating the Tour’s drug policy; and
Singh had no choice but to sign the PGA Tour’s membership form if he wanted to play for the PGA Tour, the highest level of professional golf in the world.
Singh’s attorney further stated that he wants to utilize the discovery process to find out why the PGA Tour did not look at the scientific evidence before disciplining Singh, while also attempting to determine why Singh was treated differently from other golfers on the Tour.
PGA’s Counterarguments
The PGA Tour is not the only organization under which one can play professional golf;
The Doctrine of Judicial Non-Intervention should apply in decisions of voluntary, private organizations (unless it is shown that the organization acted in bad faith or broke the law); and
The PGA Tour never publicly disseminated information regarding Singh’s suspension until it released a statement that it was withdrawing Singh’s suspension. Therefore, no basis exists for Singh’s claim that he was subject to humiliation prior to said statement.
As of November 25, 2013, the Court has made no ruling on the PGA Tour’s motion to dismiss.
[1] Research assistance provided by Caitlin Brady, Washington University School of Law
[2] Singh also submitted to a urinalysis, which was negative for any banned substances
[3] Singh v. PGA Tour, Inc., No. 0651659-2013, complaint filed, (N.Y. Sup. Ct., N.Y. County May 8, 2013)
