When Offense Not a Good Defense

18 Things You Need to Know About Vijay Singh's Lawsuit Against the PGA Tour

Vijay Singh took the unusual step of suing the PGA Tour. We've read the Complaint and it's a doozy. Singh is suing the PGA Tour for

Negligence
Negligence
Negligence (yes, three different kinds of negligence)
Breach of Implied Covenant of Good Faith and Fair Dealing
Breach of Fiduciary Duty
Intentional Infliction of Emotional Distress
Conversion (this has to do with money and not the long putter)

Can we sue Singh for having been forced to read this thing?

We have been very critical of the PGA Tour leadership and its actions regarding Singh so it does take a certain amount of skill by Singh's lawyers to make me sympathetic to the PGA Tour. Singh has always claimed to be a guy that supports the PGA Tour so the lawsuit is surprising.

The full complaint in PDF format is at the end of this article (if you have the time and inclination to read it).

To make it easy, we've read it and provide you with the 18 things you need to know about Vijay Singh's lawsuit against the PGA Tour.

The original suspension for Singh (that Finchem would not reveal in the press conference last week announcing they were taking no further action on Singh) was going to be 90 days effective February 14, 2013.
The PGA Tour held Singh's earnings from February 4, 2013 in escrow. If he had lost the appeal, that money ($99,980) and his FedEx points would have been "redistributed". Presumably, everyone would have moved up a spot and Singh's finishes would have been vacated. This could be interesting when it comes to the bubble for both FedEx points and the money list at the end of the year in order to keep a player's tour card. Would the "redistributed" money and points have changed the standings?
The lead lawyer Peter R. Ginsberg from New York runs a small law firm in New York City that, based solely on his website, consists of himself and 2 guys fresh of law school (2010 and 2012). Just an interesting tidbit that Singh is not using a big firm. Having practiced law, a small firm is no indication of lesser ability and I have seen many situations in which smaller firms or sole practitioners are more dogged and tenacious than a big "brand-name" firm. From media accounts, Singh is also has a lawyer named Jeffrey Rosenblum on the team. Rosenblum appears to have represented Jonathan Vilma and his NFL suspension in the New Orleans Saints and "bountygate" controversy and unsuccessfully tried to vacate Doug Barron's PGA doping suspension in 2009.
Ginsberg's firm's website claims "sports law" is one of the things although Ginsberg mostly references football on his modest site.
The complaint was filed in New York although Singh lives in Florida and the PGA Tour is a Maryland company based mostly in Florida. To be fair, Singh (interestingly) has a residence in New York City (although I've never seen him at a NYC muni) and the PGA Tour has an office in New York. Somewhat oddly, they claim the PGA Tour is hosting one of its most prestigious events in New York: the PGA Championship. I'd have to say any golfer knows (or at least thinks of) the PGA Championship as being run by the PGA and not the professional PGA Tour.
The complaint indicates Singh has been subject to random testing and passed every one.
In the complaint, Singh claims he compared the bottle of the deer antler spray (the "Spray") made by SWATS, the company that makes the product, and did not identify any banned substance. Now, there does not seem to be a picture of the box or back of label out there. But, this is a somewhat odd claim because SWATS themselves on the website and with all it promotional material appears to focus on the fact the product contains IGF-1 and their special technology helps deliver it to the bloodstream.
SWATS website focuses and even brags about the fact that the Spray has IGF-1. It is interesting that Singh appears to be essentially claiming he checked and even though IGF-1 is on the list of banned WADA substances, he was not worried about the spray after checking the bottle.
There is a weird argument (at paras 34-36) claiming that the PGA sent the Spray to the UCLA Olympic Analytical Laboratory that found IGF-1 but failed to prove Singh consumed or "used" the substance in a prohibited manner? It doesn't seem like he UCLA Laboratory was asked to provide any proof Singh consumed IGF-1 but simply whether the Spray had IGF-1 or not.
The PGA Tour's main original claim was that Singh was guilty of "using" a product because he admitted to using the product. It appears to be a specific rule in the PGA drug testing policy and rules. The complaint seems to ignore this part of the PGA policy that says an admission of use is the same as use for the purposes of the policy. It does beg the question is why they ignored this issue. Is this good "lawyering" or is this an indication that this complaint is just part of the PR campaign for Singh?This admission rule makes sense because certain drugs simply leave the system. For example, if Player X took HGH in 2007 against the rules but was never caught and this year freely admits to having taken HGH, it makes sense that the PGA should consider this a violation.
The complaint claims the PGA is aware of other golfers having taken the Spray (other than Mark Calcavecchia) but did nothing.
Singh does not appear to be doing SWATS any favors claiming that the Spray and the IGF-1is "biologically inactive" and nothing more than a "placebo." Sheesh. That's like saying former Singh sponsor The Stanford Group is nothing more than a Ponzi Scheme just because of a few accounting irregularities ... wait a minute ....
The complaint correctly that cow's milk has IGF-1. Cows milk has about 3-10nanogram per ml. So they are right that the amount in a spray is probably small even compared to a glass of milk. However, SWATS brags on their site that the point is the body digestive system "completely destroys" the IGF in a "hydrochloric acid bath" which is why they use special technology to deliver the IGF-1 to the blood stream. I guess not.
The complaint claims the IGF-1 in the Spray is not the same as the IGF-1 that is banned by the World Anti Doping Agency (WADA). This is interesting but there are no details.
The complaint seems to suggest Singh and his lawyers had to prepare for the appeal hearing are upset they had to work for a couple of days while the PGA decided what to do once WADA let them know the Spray doesn't really deliver relevant amounts of the banned substance. This may be the first time I've heard of lawyers complaining they had extra hours to bill.
Singh claims to have spent thousands of dollars in scientific studies. It would be interesting if he let everyone see these studies.
There is a claim that people have been focusing on the alleged violation rather than his play, It is hard to see why that is a negative thing but okay. As Tiger says, winning takes care of everything.
The whole complaint raises the questions as to whether Singh is hurting his reputation with this lawsuit. I think most golf fans like Singh and would have for behind him if he made a serious run at winning a tournament. Everyone knows in America, people love comeback stories especially if they are coming back from something that wasn't actually illegal. Now, I get a sense there would be more reluctance to get behind Singh now because of the lawsuit. Does a lawyer just have his ear or even more concerning would be the possibility that it is a chapter from the Lance Armstrong playbook of go on the offensive. Unusual denials and behavior can be one of the traits or tells of PED users. Let's hope this is not the case.

All this begs the question whether the PGA Tour would have been better off suspending Singh if they were going to get sued anyway. Alternatively, they should have asked for a release for not suspending him for taking a substance (albeit likely ineffective) banned at the time he took it.

While some may say no one looks good in this mess, the weirdness of Singh's lawsuit does seem create some sympathy for the PGA Tour ... for now.