It’s been more than four years since Vijay Singh made what he believed to be an innocuous admission to two Sports Illustrated writers—David Epstein and George Dohrmann—in their reporting of a story about a company that sold performance-enhancing alternatives to steroids. Singh told Epstein and Dohrmann that he used deer-antler spray, a product that some health experts contend can help athletes build muscle while others dismiss as inefficacious. The admission prompted the PGA Tour to suspend Singh, a move that in turn triggered an appeal by Singh and then a lawsuit by him. Many observers believed that the lawsuit would eventually be settled out of court. A ruling Monday by New York Judge Eileen Bransten, however, paves the way for Singh and the Tour to face off in a trial.
The legal aftermath of an untimely admission
Singh never expected that telling SI about his use of deer-antler spray would lead to any adverse repercussions. After all, he maintained that the spray simply helped him treat assorted knee and back ailments. Singh also insisted he used the spray on the advice of his caddie.
Whether Singh used the spray to treat injury or build muscle—and whether the spray actually worked for its intended purpose—weren’t at issue. What mattered to the PGA Tour was that the spray contained a prohibited substance, Insulin-like Growth Factor-1—better known as IGF-1. Still, Singh had reason to believe that a public disclosure of using deer antler spray wouldn’t disrupt his career. He knew that Mark Calcavecchia admitted to using the spray a couple of years earlier and wasn’t punished. Singh also understood that many other golfers used deer antler spray and none of them were punished.
The PGA Tour saw things differently, suspending Singh for 90 days. The PGA Tour reasoned that Singh, like other golfers, contractually agreed to follow the PGA Tour’s anti-doping program manual. Singh’s admission, the PGA Tour observed, proved that he violated the manual. As to other golfers who used the spray, the PGA Tour stressed that none of them used the spray while playing in PGA Tour tournaments. The PGA Tour insisted that it only punishedgolfers who use the spray while competing in PGA Tour events.
Singh was outraged, noting that the bottle didn’t list IGF-1 and that a lab failed to conclude IGF-1 was an active substance. Singh exercised his right to appeal the suspension, but the appeal itself seemed to elevate hispenalty: while an appeal would toll the suspension until after the appeal was heard, any money earned during the appeal would be placed in escrow. If Singh lost the appeal, the escrowed money would be forfeited and Singh would then serve the appeal—meaning he would lose what he would have earned during those 90 days plus money he actually earned during the appeal process.
The appeal would be rendered moot after the PGA Tour dropped the suspension. Shortly thereafter, the controversy surrounding deer antler spray also abated as the World Anti-Doping Agency—which promulgates rules that the PGA Tour adopts—announced that deer antler spray was not prohibited.
Singh remained angered by what he considered to be a character assault by the PGA Tour. He sued in New York state court, raising various claims that, in sum, asserted that the PGA Tour had tried to humiliate Singh in the golf community and paint him as a cheater. After several hearings and accompanying rulings over the last few years, the case now centers on Singh’s contention that the PGA Tour acted in bad faith, engaged in unfair dealing and wrongfully “converted” (took) his money and placed it into escrow. Singh maintains that the PGA Tour unfairly treated him differently from other golfers who used the spray. He also charges that the PGA Tour hastily reached a decision to punish him without first investigating the spray in consultation with WADA.
Judge Bransten’s order: A trial is now on the horizon
Both sides petitioned Judge Bransten to grant summary judgment, an order that would signify that the facts and evidence presented so far can only lead to one conclusion: the side seeking a summary judgment must win. Judges usually deny motions for summary judgment because they are, as Judge Bransten writes, a “drastic remedy” that should only be granted if there are no significant issues of fact. Crucially, the granting of summary judgment renders it unnecessary for a jury to hear a case since a judge has concluded that a jury could only reasonably reach one conclusion. A denial of a motion for summary judgment, in contrast, paves the way for a trial to occur and for a jury to hear the case.
In assessing the competing arguments of Singh and the PGA Tour, Judge Bransten found that certain parts of Singh’s lawsuit remain debatable and arethus appropriate for jurors’ review. This is true, Judge Bransten reasoned, on the question of whether the PGA Tour acted in bad faith by failing to consult with WADA on deer antler spray before punishing Singh. Judge Bransten also found questions remain as to whether the PGA Tour’s public discussion of the spray breached a covenant of good faith and caused damage to Singh. More favorably for the PGA Tour, however, Judge Bransten granted summary judgment on parts of the lawsuit. One key issue that has been dismissed pursuant to Judge Bransten’s order concerns Singh’s conversion argument: Judge Bransten agreed with the PGA Tour that since Singh assented to the PGA Tour placing his money in escrow while he appealed, the PGA Tour acted lawfully in placing Singh’s money in escrow.
The net result: Judge Bransten has shrunk the scope of Singh’s lawsuit, but still green-lighted portions of it to proceed to trial.
Settlement still possible
Unless the PGA Tour offers Singh an amount of money in a settlement offer that convinces him to drop the remainder of his case, PGA Tour officials can expect to testify before New York jurors at some point in the future. While under cross examination, they may be asked difficult questions by Singh’s attorney, Peter Ginsberg, about their drug testing policies and procedures and how they collect and share information.
For his part, Singh would also assume some risk by participating in a trial. For one, he could lose the trial and gain nothing from four years of litigation except legal bills. Second, golf fans who read about Singh’s trial testimony would be reminded of the allegations against him. Such reminders might themselves damage his reputation. Then again, Singh could persuasively testify and win the trial, which would enhance his reputation and financially enrich him, too
Judge Bransten has not yet set a trial date, but any trial would be months from now. Also, while the two sides might detest each other, they will likely have a series of settlement talks before any trial occurs. If settlements talks fail, however, a showdown in court is looming.
Michael McCann is SI’s legal analyst. He is also an attorney and a tenured law professor at the University of New Hampshire School of Law.