It was a random Tuesday when the media storm struck Vijay Singh.
“Ross, my phone’s blown up,” Singh told Ross Berlin, the PGA Tour’s director of player relations, on Jan. 29, 2013, as the Fijian prepared to play that week’s Waste Management Open.
“Vijay, it’s because an article that came out in Sports Illustrated, and you were interviewed and you admitted using deer antler spray,” Berlin explained.
The article, which was posted on SI.com just hours earlier, told the tale of S.W.A.T.S., a two-man company that billed itself as an alternative to steroids and sold an assortment of products from “negatively charged” water to something called Ultimate Spray, the substance Singh admitted to using “every day.”
According to the SI.com story and the S.W.A.T.S. website, the spray contained IGF-1, a growth hormone like HGH, which is banned by the Tour.
The ensuing media maelstrom and investigation has led to 2 1/2 years of contentious and often confidential litigation between the Tour and Singh, who filed a lawsuit against the Tour in New York County Supreme Court in May 2013.
That lawsuit reached a milestone last week with a flurry of filings, including a request from both Singh and the Tour to the court for summary judgment. Last week also marked the end of an intense discovery process, with over 130 filings posted to the public record last Thursday (Nov. 5) that at least partially pull back the veil on this bizarre episode.
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In his deposition last December in Ponte Vedra Beach, Fla., Singh – who has not publicly discussed either the Tour’s investigation into his use of the Ultimate Spray or his lawsuit – said it was his caddie, Tony Shepherd, who suggested he use the spray to help with knee and back injuries.
He also said that the Tour crafted his statement to the media following the release of the SI.com article, and that he was never comfortable with it.
“They made a statement and I didn’t like what was said,” Singh said in his deposition.
Jeff Rosenblum, a member of Singh’s legal team, declined to discuss the specifics of the case, and a Tour spokesman did not respond to an email requesting comment. It’s the circuit’s policy to not comment on ongoing litigation.
Some of the discovery offers a glimpse into the nuanced world of anti-doping, like an email exchange between Ty Votaw, the Tour’s executive vice president of communications, and a golf writer from the Associated Press who asked, among other things, if deer antler spray was on the Tour’s list of banned substances.
Votaw responded that, yes, deer antler spray is on the Tour’s banned substances list, when in fact it is not. The substance IGF-1, an ingredient found in the spray, is on the banned list, but not the product itself. It’s a nuanced distinction but central to Singh’s claim that the Tour was negligent in its handling of his case.
Singh applied the Ultimate Spray to his knee and back, “which was very weird,” he said, as well as in his mouth (as instructed by S.W.A.T.S. owner Mitch Ross) for about a month and a half. He also said he agreed to the SI.com interview to help promote the product.
According to court documents, Singh was notified within two weeks after the publication of the SI.com article that he had violated the Tour’s anti-doping program, which is modeled after the code used by the World Anti-Doping Agency (WADA) and considers an admission of use tantamount to a positive test.
In a letter sent the next day (Feb. 15, 2013), Singh responded to the Tour’s ruling, writing, “I did not go to Mitch’s website and simply took him at his word which was, in retrospect, a big mistake. I believe in my innocence, I hope you, the commissioner and the Tour think likewise.”
Four days later, Singh met with Tour commissioner Tim Finchem in his office at TPC Sawgrass and was informed he would be suspended for 90 days, a sanction that would be retroactive to Feb. 4.
“I asked them (Finchem and Ed Moorhouse, the Tour’s co-chief operating officer) what would have happened if I hadn’t given them the bottle [of Ultimate Spray]? They said I would have been suspended for longer.” Singh said in his deposition.
Singh turned over a bottle of the spray to Berlin the day the SI.com story was published and two separate tests found IGF-1 in the sample.
Whether the amount and the biological makeup of the IGF-1 found in the Ultimate Spray warranted a violation or provided any doping benefit has turned into a point of contention in the lawsuit, with both sides providing expert testimony.
“Any IGF-1 in the S.W.A.T.S. deer antler spray is inactive, and thus unable to have any biological effect,” wrote Dr. Michele Hutchison, a pediatric endocrinologist and scientist, in a letter dated May 8, 2015.
Hutchison added, “The PGA [Tour] could have requested Mr. Singh to provide a sample of blood to test for elevated IGF-1 levels in order to determine if he had used a banned substance. However, based on all the evidence identified above, I strongly doubt that such a test would have yielded an IGF-1 level above the normal range.”
The Tour responded with testimony from Larry Bowers, the chief science officer with the U.S. Anti-Doping Agency.
“The amount of IGF-1 in the product or biological activity of IGF-1 are wholly irrelevant to determining whether Mr. Singh’s admitted use of the S.W.A.T.S. Ultimate Spray constituted an anti-doping violation,” Bowers said.
PGA Tour commissioner Tim Finchem at a news conference in 2013, announcing that the Tour was dropping its case against Singh. (Getty Images)
The lawsuit and discovery, much of which is redacted, has also focused on the timing of the Tour’s investigation.
Finchem announced at an April 30, 2013 news conference that, “WADA clarified that it no longer considers the use of deer antler spray to be prohibited unless a positive test results,” and the Tour was dropping its anti-doping case against Singh.
In that news conference, Finchem said the Tour received WADA’s notice on deer antler spray four days earlier on April 26, 2013.
But on Feb. 1, 2013, Dr. Olivier Rabin, WADA’s science director, responded to a request for clarification on deer antler spray from the chief executive of Drug Free Sport New Zealand, writing in an email, “WADA takes a very similar approach for deer antler as we do for colostrum or some other dietary supplements ... Deer Antler Spray is not prohibited per se, but WADA recommends athletes be extremely vigilant with this supplement because it may contain IGF-1.”
Four days later, less than a week after the SI.com article was posted, WADA published a “clarification” regarding IGF-1 on its website. It also on its website in 2013 explained that colostrum, which like the Ultimate Spray contains trace amounts of IGF-1, “is not prohibited per se.”
It wasn’t until late April, however, that the Tour contacted WADA for clarification, some three months into the investigation into Singh’s use of the spray and ensuing appeals process.
In fact, according to testimony from Rabin, as far back as 2008 WADA ruled that colostrum contained “minute amounts of IGF-1” but was not considered a prohibited product. In February 2013, it announced a similar view of deer antler spray.
“The PGA Tour is not an experienced [anti-doping organization],” wrote Richard Ings, one of Singh’s scientific experts who was former chief executive of the Australian Sports Anti-Doping Authority (ASADA). “Seeking clarification from WADA was a necessary step before determining that a [anti-doping rule violation] had occurred, especially when the PGA Tour has indicated that it defers and refers to WADA on anti-doping matters.”
Singh also conceded that he did not see the Tour’s warning regarding deer antler spray and IGF-1 in a memo sent to players in April 2011, adding that it wasn’t until after the investigation began that he learned of the notification from Jason Dufner.
“[Dufner] said it was accidental how he read it,” Singh said in the deposition. “He was sitting in a can having a you-know-what and it was laying on the floor so he picked it up, and he was surprised that it was on it.
“He said if he hadn’t been in the can at that moment in time, he’d have never known that it was [on the banned list].”
Singh also claims the Tour breached its fiduciary duty to him and that he “has been damaged in [an] amount to be proven at trial,” although a recent filing in the case for a dispute resolution hearing sets that sum at $5 million.
In his deposition, Singh suggests the Tour’s investigation and initial ruling over his use of the Ultimate Spray tarnished his reputation and suggests it prompted Cleveland Golf, who had endorsed the 34-time Tour winner for 16 years, to end its relationship with him.
“There was rumors on Tour, with the manufacturers, that ... because of my suspension, my credibility with the golfing world, Cleveland Golf may not extend the contract [beyond 2013],” Singh said.
Singh’s lawsuit also points to other players – most notably Mark Calcavecchia (who admitted to using the Ultimate Spray) – who were not subjected to the same investigation and initial sanctions as Singh.
“Tom Pernice was on, he was a good person to talk to because he was on the Player Advisory Board forever,” Singh said. “He mentioned a few golfers that were disciplined and was disciplined and for what reason.”
That portion of Singh’s testimony is followed by a redacted paragraph.
The next step in the case is for the court to rule on motions for summary judgment filed by both parties. The court’s determinations on those motions are not expected for several months. Meanwhile, the parties will participate in a voluntary, non-binding dispute resolution hearing with a mediator.
The next step in the lawsuit is a voluntary, non-binding dispute resolution hearing with a mediator. Both sides have filed motions for summary judgment that will be ruled on in the next few months.
If the two sides fail to reach an agreement in dispute resolution the next stop would be a jury and, according to Rosenblum, that likely wouldn’t occur until late 2016 or early 2017.
