23 May 2017

Vijay Singh’s deer antler case to proceed to trial

Vijay Singh’s lawsuit against golf’s anti-doping policies will proceed to trial, after the New York Supreme Court dismissed Singh’s request for summary judgment against the PGA Tour, which the Fijian argues is guilty of ‘reckless administration and implementation of its Anti-Doping Programme’. Singh was suspended by the PGA Tour on 19 February 2013, after admitting using ‘deer antler spray’ in a 29 January 2013 Sports Illustrated article.

The PGA Tour dropped its case against Singh ahead of an arbitration hearing scheduled for 7 May 2013. ‘WADA clarified that it no longer considers the use of deer antler spray to be prohibited unless a positive test results’, read a 30 April 2013 PGA Tour press release. ‘Based on this new information, and given WADA’s lead role in interpreting the Prohibited List, the Tour deemed it only fair to no longer treat Mr. Singh’s use of deer antler spray as a violation of the Tour’s anti-doping program’.

The lawsuit alleges that the PGA Tour failed to contact the World Anti-Doping Agency (WADA) prior to suspending Singh. On February 5 2013, WADA had issued a statement clarifying that it did not consider deer antler spray to be banned, but warned that the substance it contained could lead to a positive test. ‘Deer Antler Velvet Spray may contain IGF-1 and WADA recommends therefore that athletes be extremely vigilant with this supplement because it could lead to a positive test’, read WADA’s statement. ‘There can be no guarantee that IGF-1 taken orally will not influence the plasma level of IGF-1, which may then influence the result of anti-doping tests’.

Singh argues that WADA’s position regarding deer antler spray has been unchanged ‘since 2007 or 2008’. In his original lawsuit, he argued that the Insulin-like Growth Factor 1 (IGF-1) within the spray ‘is not a substance that the Anti-Doping Program bans’, as ‘IGF-1 can only be introduced into the body through injection’, and Singh used the spray in his mouth. Singh’s earnings were held in escrow during the appeal process (7 February until 14 April), which the original lawsuit alleges amounted to US$99,980.

‘The Court finds it is up to a jury to determine whether Defendant’s decision not to consult the WADA and/or ignore WADA studies and findings issued prior to Plaintiff’s suspension concerning deer antler spray constitute an “appropriate” investigation’, reads the 12 May court decision (PDF below). ‘Both Plaintiff and Defendant’s experts agree the substance identified by UCLA as “IGF-1” did not have the same three-dimensional chemical structure as IGF-1 and, without that structure, could not have presented a potential to enhance performance’.

However, it also found that the contractual agreement between the PGA Tour and Singh did not require the PGA Tour to ‘take into consideration the “effectiveness” of the Prohibited Substance but rather its mere presence’. It therefore rejected Singh’s argument that the PGA breached its implied covenant of good faith and fair dealing by not requiring UCLA to further test the chemical composition of the IGF-1 it found in the deer antler spray.

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