Singh’ing in a Rain of Deer Antler Spray

Vijay Singh has filed suit against PGA Tour, Inc. for damaging his reputation amid a probe into his use of deer antler spray. (Courtesy: golf.com)

Professional golfer and former Masters winner Vijay Singh has sued the PGA Tour, Inc. (“PGA”), claiming damage to his reputation in the wake of its “deer antler spray” doping probe, which was later dropped.  Singh has filed in New York, alleging (1) three claims of negligence, (2) breach of the implied covenant of good faith and fair dealing, (3) breach of fiduciary duty, (4) intentional infliction of emotional distress, and (5) conversion (for his earnings held in escrow during the appeal process).  Singh’s negligence claims rely on the allegations that “the PGA TOUR breached its duty to Singh by failing to determine in a responsible way, and without any scientific examination, whether the Spray in fact fell within the Anti-Doping Program’s definition of ‘banned substance’ and whether the substance ostensibly identified by the UCLA Lab was in fact ‘used’ as defined by the Anti-Doping Program and was thus banned by its own Anti-Doping Program [and that] the PGA TOUR failed competently and responsibly to administer its own Anti-Doping Program.”

Singh points out that PGA “adopted, and continues to rely upon, [the World Anti-Doping Agency’s] Prohibited Substances List for its own Prohibited Substances and Methods List without any independent review, analysis or assessment of the substances, including but not limited to whether the substances actually provide any performance enhancing effect, the chemical, biological or other physical effects of the substances, how the substances are used, how the substances must be used to have the intended physiological effect, and the relevance of the substances to the game of golf.”  He also contends that the substance known as IGF-1 (which in certain forms would make its use illegal under the Anti-Doping Program) is biologically inactive in deer antler spray, must be given by injection in order to be effectively absorbed in the human body (Singh elected to spray it in his mouth), and that “scientists have compared the amount of IGF-1 contained in the Spray to the amount contained in a dose of Increlex [a growth drug, which is a biologically active and recombinant form of IGF-1] 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.”

Singh’s suit essentially admits that he was clueless in not investigating this substance (which his caddie recommended in the first) for its legality under PGA’s substance policy, clueless in thinking that spraying it in his mouth would have anything other than a placebo effect, and clueless in concluding that he was taking enough to make a difference anyway – unless each dose was an Olympic-size spray, I guess.  Singh does not specify his exact desired relief, but states that damages will be in an amount to be proven at trial.

Christopher Key of SWATS, a developer of deer antler spray, which science has not shown to have any quantifiable success. (Courtesy: Sports Illustrated)

The investigation began when Singh admitted in a January Sports Illustrated article that he used the spray – this was the same article that described Ray Lewis’ association with the company that researches and develops the spray (Sports with Alternatives to Steroids, or SWATS) when he attempted to expedite his triceps injury in order to play in Super Bowl XLVII.  PGA initially considered the admission as a violation of its substance policy and handed down a suspension.  On April 30, PGA issued a statement that “during the appeal process, PGA TOUR counsel contacted WADA … [which] clarified that it no longer considers the use of deer antler spray to be prohibited unless a positive test results,” the reason being that although a positive IGF-1 finding would be grounds for doping, its presence in the spray is small.  Despite dropping its case, PGA stated that “Mr. Singh should have contacted the PGA TOUR Anti-Doping Program Administrator or other resources readily available to players in order to verify that the product Mr. Singh was about to utilize did not contain any prohibited substances, especially in light of the [PGA] warning issued in August 2011 in relation to deer antler spray.”

An article from the Associated Press noted that Jeffrey Rosenblum, one of Singh’s lawyers, “also represented Doug Barron, the only player suspended under the tour’s anti-doping policy.  Barron sued the tour, and the case was settled.  Rosenblum could not comment on the settlement, which was confidential.”  There is no telling which way Singh’s case will fare (see what I did there?), but a similar settlement might not be too surprising.

Note: for all of you civil procedure buffs out there, the following language was taken from Singh’s complaint, seeming to establish personal jurisdiction and/or proper venue: “The PGA TOUR does continuous and systematic business in New York, employs personnel in New York and hosts events in New York, including but not limited to the 2013 PGA Championship, one of the PGA TOUR’s most prestigious event.”

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