When Vijay Singh spoke to Sports Illustrated in January about using deer antler spray, he clearly didn’t expect the PGA Tour to suspend him. After all, Mark Calcavecchia admitted to using deer antler spray in 2011 and did not face discipline from the Tour. Singh also insists the PGA Tour is aware of other golfers who use the spray and who have similarly escaped sanction.
But the PGA Tour treated Singh’s admission as worthy of punishment: in February the PGA Tour suspended him for 90 days. Singh would appeal the suspension, which the PGA Tour dropped last week.
But in a lawsuit filed Wednesday in New York, Singh asserts the PGA Tour breached its membership duties, acted negligently and intentionally inflicted emotional distress upon him. Singh said that as member of the PGA Tour he was entitled to "good faith" and "fair dealing" for the Tour, which he claims he did not receive.
Singh, who says he has never failed a drug or substance test, is represented by Peter Ginsberg, the same attorney who represented Jonathan Vilma in his unsuccessful defamation suit against NFL commissioner Roger Goodell.
In his lawsuit, Singh focuses his complaint on what he portrays as the Tour’s unlawful treatment of his rights in relation to the drug test This is especially in reference to the testing of the bottle used by Singh.
Singh maintains the bottle does not list any prohibited substances in its ingredients. Also, he claims that the UCLA Olympic Analytical Laboratory tested the bottle and reportedly did not find anabolic steroids and did not conclude that a key ingredient — IGF-1 — was active or in any way beneficial to Singh. Because of this test, Singh contends the PGA Tour had no right to suspend him with this kind of evidence.
He also takes sharp aim at what he portrays as a disingenuous right to appeal the suspension. According to the lawsuit, the PGA Tour told Singh in February that if he appealed the 90-day suspension, the suspension would not begin until after an appeal was heard in May and was found unsuccessful. Pending the appeal, Singh could continue to play on the PGA Tour. Singh, however, claims the PGA Tour told him that any money he earned during the pending period would have to be put in escrow and subject to forfeiture if he lost the appeal.
In other words, if Singh appealed and lost, he would have lost more than 90 days’ worth of money: he would have forfeited any money he earned while pending appeal, plus money he could have earned over the 90-day suspension.
In Singh’s view, the message was clear: he would be punished for appealing. Singh insists no other golfer has been subjected to this arrangement and that it constituted bad faith.
The PGA Tour will likely answer Singh’s complaint within the next few weeks. PGA Tour spokesman Ty Votaw told the Associated Press that the Tour will not comment on Singh’s lawsuit, but I expect the PGA Tour to argue the complaint should be dismissed, and that its actions were reasonable under the circumstances.
First, the PGA Tour will stress that Singh contractually assented to the Tour’s authority and discretion. In his membership renewal form, Singh accepted the PGA Tour’s Anti-Doping Program, which since 2008 has prohibited substances consistent with World Anti-Doping Agency policies, and which affords the Tour wide latitude in its drug-testing implementation.
Even if the PGA Tour’s actions against Singh might be otherwise unlawful, the PGA Tour will maintain Singh contractually waived away any potential claims.
Second, the PGA Tour can argue that the uncertain performance benefits of deer antler spray on a golfer and the public outcry over the Sports Illustrated story warranted a more aggressive, risk-averse response in 2013 than in 2011, when Calcavecchia admitted to using the product.
Moreover, the PGA Tour can stress that while Calcavecchia was not punished for using deer antler spray, the Tour did tell him to stop and that this admonition was known to other golfers. Along those lines, the PGA Tour can reason that it would be justifiable to punish golfers after Calcavecchia since they would have known deer antler spray was prohibited.
Third, the Tour may assert that Singh is forgetting about the PGA Tour’s other duties — namely those it owes to fans, courses, equipment manufacturers, apparel companies, television networks, endorsers, licensees and other parties financially impacted by perceptions of the sport’s credibility. If golfers are seen as “cheating” through performance-enhancing drugs, the PGA Tour could lose fans, television ratings and, ultimately, dollars. These other duties, the Tour can attest, make its actions against Singh reasonable.
Fourth, the PGA Tour can declare that Singh was not harmed in a legal sense. While he was notified of a suspension, he was never actually suspended. He exercised his right to appeal and, while the appeal was pending, the PGA Tour learned more information about deer-antler spray and then dropped its case.
Although Singh’s complaint claims he “has been humiliated, ashamed, ridiculed, scorned and [rendered] emotionally distraught,” the complaint makes no reference to the golfer losing endorsement deals or suffering other financial harm.
Singh’s lawsuit will likely take months before any definitive action. If the case gets past a motion to dismiss, it would move toward the pretrial discovery stage. In that stage, Singh’s lawyers could compel the PGA Tour to provide sensitive information — including information about how the PGA Tour views players and their potential use of PEDs.
Keep in mind that the Tour may want to avoid the discovery process by offering Singh an attractive settlement offer in exchange for dropping the claim. In the meantime, though, the PGA Tour will display a fighting posture and seek to get the case tossed.
Singh’s case is significant in a broader sense for golf and the law. As noted last fall when Keegan Bradley implied he might legally challenge the USGA over its belly putter ban, golfers are in some ways disadvantaged by being independent contractors instead of union members (like NFL, NBA, NHL and MLB players).
There is no union to fight for golfers and no collective bargaining agreement that secures them rights. They are instead largely in a “take it or leave it” scenario where they either go along with rules imposed on them, or they don’t play.
Even if cases like Singh v. PGA Tour are unsuccessful, they might plant the seed for golfers to think about unionization.
Michael McCann is director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He also directs the sports law program at Vermont Law School.