A federal judge from the Eastern District of Missouri has ordered a Florida nutritional supplement company to pay more than $5.4 million to St. Louis Rams linebacker David Vobora, who took a contaminated supplement that led to a four-game National Football League suspension in 2009.
Specifically, the court ruled that Anti-Steroid Program, LLC, also known as S.W.A.T.S, intentionally misrepresented the supplement product in violation of state law. The judgment included lost NFL compensation, marketing opportunities and $2 million for damages to Vobora’s reputation.
Taken by the Rams with the last pick of the 2008 draft, Vobora was the starting strongside linebacker for the Rams when he took S.W.A.T.S’s supplement “Ultimate Sports Spray” during the summer of 2009. Consequently, he tested positive for the banned substance methyltestosterone, and as a result the league suspended him for the first four games of the season.
Vobora had followed the NFL’s recommended steps before taking nutritional supplements. He called an NFL hotline set up for players with questions about supplements and consulted supplement experts. Before taking S.W.A.T.S’s supplement “Ultimate Sports Spray,” Vobora studied the company’s website, which had endorsements from more than 50 NFL players and coaches.
After the defendant was unresponsive, the plaintiff filed a motion for default judgment against S.W.A.T.S, “The Defendant was given notice and an opportunity to be heard,” wrote the court. “Despite adequate notice, S.W.A.T.S chose not to defend or appear.”
After a hearing on May 18, 2011, the court concluded that the plaintiff suffered both special and general damages.
One of the more interesting areas where damages were awarded was for “a loss of income derived from football-related endorsements and performance incentives. The court heard and considered the testimony presented related to lost marketing opportunities. The court believes the evidence demonstrates that as a NFL player, and due to Vobora’s position as a ‘Mr. Irrelevant’ (the last person drafted, who ultimately became a starter in the NFL), he had unique opportunities to earn income from non-NFL sources to promote and market products and events for economic gain. Based on the testimony, the court awarded him $100,000 as compensation for Vobora’s lost marketing opportunities.”
The court also heard testimony that the positive drug test and resulting suspension made Vobora “less marketable than other similarly situated players who have not been suspended. Vobora is less marketable not only due to his tarnished reputation but also because he has one strike against him under the NFL’s performance enhanced drug protocol. The Court has received the Affidavit of (agent) Marc Lillibridge containing a description of comparable losses under similar circumstances.”
Turning to “the emotional toll this matter has caused him, including his course of care and treatment with both private and team physicians,” the court agreed that “being labeled as a steroid user has caused him distress, pain and suffering.” It thus awarded him $2 million in general damages.
R. Daniel Fleck of The Spence Law Firm, LLC, who was one of the attorneys representing Vobora, was quick to trumpet the victory in a statement: “This judgment is believed to be the largest of its kind for any athlete who has been suspended from his or her sport because of a contaminated nutritional supplement. This case should be a warning to all supplement companies to improve their manufacturing processes and ensure their products are steroid-free.”
NFL spokesman Brian McCarthy said in a statement that the league supported Vobora’s effort, but that league policy places “strict liability” on the player. “Players are responsible for what is in their bodies,” McCarthy said. “We caution players that supplements are not regulated and what’s on the label may not be accurate. Players are accountable for any banned substances that may have been taken by mistake.”
David Vobora v. S.W.A.T.S, a business entity; E.D. Mo.; Case No.: 4:10CV810 RWS; 6/17/11.
Attorneys of Record: (for plaintiff) R. Daniel Fleck, of The Spence Law Firm, LLC, of Jackson, Wyo., and Howard L. Jacobs, of the Law Offices of Howard L. Jacobs, of Westlake Village, Calif.
