Vijay Singh Is Prepared to Take the PGA Tour to Trial, Lawyer Says

August 31, 2016

Now in its fourth year, Vijay Singh’s lawsuit against the PGA Tour has never been more contentious. A key ruling by Justice Eileen Bransten of the New York State Supreme Court this summer prompted the release of previously redacted documents that not only bolster Singh’s claim that he was treated differently than other golfers who also admitted to using deer antler spray but also raise questions about Finchem’s handling of the case.

How did we get here? Let’s recap: In 2013, after Singh told Sports Illustrated that he had been using deer antler spray, which contains the growth hormone IGF-1, the Tour suspended Singh for violating its anti-doping policy. But when the golfer appealed, Tour commissioner Tim Finchem rescinded the suspension because the Tour had subsequently learned that the World Anti-Doping Agency didn’t consider admitted use of the spray to be a doping violation without a positive test. Singh sued, claiming that he had faced “humiliation and ridicule” as a result of the Tour’s mistake.

“For Vijay, [this case] is not only trying to prove publicly that the PGA Tour’s accusations against him were erroneous, unfair, and arbitrary, but it is an opportunity for him to say to the PGA Tour, ‘You have to be responsible,'” Ginsberg says.

With settlement negotiations apparently stalled, Singh and the Tour could be headed for trial as early as 2017. In an interview with GOLF.com, Singh’s lawyer, Peter Ginsberg, explained the implications of the case and why he believes his client was wronged by Tour officials.

When reached for comment about Ginsberg’s allegations, the Tour issued the following statement: “While the Tour does not comment on pending litigation, the Tour’s briefings, which are a matter of public record, provide detailed explanations of the Tour’s actions and serve to refute these wholly unsubstantiated allegations.”

The following transcript has been edited for length and clarity.

GOLF.com: You’ve represented several professional athletes in disputes against the leagues they play for, including the NFL and the NCAA. What makes Vijay Singh’s case against the PGA Tour unique?

Ginsberg: The golf world is a unique place, and Vijay is certainly a unique person. He is the prototype of a professional, a mature man who has achieved what people dream of achieving. He is a thoughtful, decent person who was wronged by an arbitrary and irrational decision by the PGA Tour. The PGA Tour is also different than most leagues because it isn’t subject to the same guidelines or restrictions that a collective bargaining agreement imposes on some of the other leagues. And the players themselves, the labor part of the sport, have not organized or acted in coordination the way that they do in some of the other leagues.

The lawsuit is in its fourth year, so let’s go back to when this all started in 2013. Singh is nearing the end of a Hall of Fame playing career on the PGA Tour. He’s approaching 50. He’s got a bad back and bad knees. Was Singh worried about his ability to continue playing golf at an elite level?

No, I don’t think it was anything as traumatic as that. I think, like all professional athletes, he had some aches and some pains. And his caddie one day mentioned to him that there was this spray that several other golfers were using. He suggested to Vijay that he try it.

What was Singh hoping to gain?

I don’t think Vijay even gave it that much thought. Vijay works out incessantly. It wears and tears on his body. And I don’t think he gave it any real thought about what it was, other than understanding from his caddie that there was a spray that other golfers were using it, apparently with some limited success. So Vijay took a couple bottles from the manufacturer.

Did Singh look into the product at all before he began to use it?

Singh and his assistant both looked into the product. He has always been very careful about that. They checked the bottle. He met with the man who was manufacturing the product. I believe they talked with some of the other golfers, but he certainly looked at some of the testimonials from other golfers. There was nothing they could find that made the product suspicious in any way. And I think the fact that other golfers were not only using the product, but publicly endorsing the product and continued to do so without the PGA Tour standing up or stopping it — as far as Vijay could tell — gave him no reason to feel like there was a reason not to take the product.

As Sports Illustrated‘s David Epstein reported in 2013, Sports with Alternatives to Steroids, the company selling the spray, was a two-man operation run out of the back of a gym near Birmingham, Alabama, and its founder, Mitch Ross, was a former male stripper and steroid dealer who did not even have a college degree in science. After he read the article, did Vijay feel deceived?

Absolutely. I mean, he met with Ross, and it was Vijay who called the PGA Tour and said, “Dear God, what’s goin’ on?” So he felt betrayed that Ross didn’t appear to be the person he had presented himself to be. I think to some extent he probably felt betrayed by the PGA Tour that they had allowed other golfers to use this product and to deal with Ross and hadn’t sent out any real warnings to golfers that this person was portraying himself as something other than what he was.

When did Vijay realize he had a problem with the Tour?

Well, shortly after the article was published, Vijay realized that a Tour spokesperson had told the media that he had used a banned substance. Vijay read that and thought the Tour had a problem with him. That is inconsistent with the Tour’s promise to the players that if there is an issue like this, it’s all supposed to stay private unless there’s some disciplinary action that is affirmed.

Epstein’s article created big problems not only for Ross (who was ultimately charged with 260 counts of deceptive trade practices, resulting in a permanent injunction) but also for Vijay, who was notified of his 90-day suspension from the PGA Tour for his “admitted use” of a banned substance. But Vijay appealed his suspension and the Tour rescinded it. Case closed, right? So why did Vijay sue the Tour?

Because in the interim time period, Vijay had been subjected by the Tour not only to humiliation within the Tour itself, but based on some of the things that various executives had said, including Commissioner Tim Finchem, Vijay had essentially been called a cheater. The PGA Tour said publicly he had committed an anti-doping violation. And that’s not true. He was scorned and ridiculed when he was walking the golf course. There was a public event held by the PGA Tour where Vijay was the butt of a joke by a PGA Tour executive in front of several hundred people. So, it wasn’t case closed. For Vijay, it was not only something he felt personally affronted by, but it also occurred to him that if Commissioner Finchem and his troops can treat Vijay, somebody who is an extraordinarily accomplished and hardworking golfer, in that manner, what about the lesser-known golfers with less protection and less reputation? So, for Vijay, it was not only trying to prove publicly that the PGA Tour’s accusations against him were erroneous, unfair, and arbitrary, but it was an opportunity for Vijay to say to the PGA Tour, “You have to be responsible.”

In a recent brief, you argue that the Tour failed in the administration of its drug policy in several ways, one of which was you pointed out that the Tour did not consult the World Anti-Doping Agency prior to suspending Vijay. What is WADA’s position on deer antler spray?

Since 2007, the World Anti-Doping Agency, to which the PGA Tour has stated publicly again and again that it defers with regard to these issues, was absolutely clear that using deer antler spray was not an anti-doping violation in the absence of a positive drug test. Vijay has been drug tested — he can’t even count the number of times — and has never failed. In the weeks leading up to this public dispute, WADA had even informed another league that using the spray was not a violation. WADA had issued a press release, which Finchem and his troops must have seen, which said without any equivocation that using deer antler spray without a positive test is not an anti-doping violation. Finchem ignored not only what WADA was saying but also what these other sports organizations were saying and proceeded to discipline Vijay.

Could deer antler spray, or the trace amounts of IGF-1 it contained, have helped Vijay in any way?

Absolutely, unequivocally not. And the PGA Tour doesn’t even claim that anymore. In March, when they dropped the discipline, the PGA Tour said, “It is not a anti-doping violation to use deer antler spray.” That’s what Finchem said. And if it wasn’t a violation in March or April, it wasn’t a violation a couple months earlier, either. And instead of just saying, “We were wrong. We apologize. Vijay Singh never violated the anti-doping policy,” instead Finchem tried to rationalize this significant mistake by, frankly, not telling the truth. Because what he told the public was that WADA had changed its position about deer antler spray, and now WADA had decided that it was not a violation. And that was just an absolute fabrication.

(Editor’s note: In his deposition, Commissioner Finchem said: “[The Tour] asked for confirmation from [WADA], and we received a letter from WADA indicating that they had taken a different view toward IGF as it’s conveyed by deer antler spray.” According to Ginsberg, however, WADA’s Director of Science, Dr. Olivier Rabin, confirmed in his deposition that WADA’s position on products, like deer antler spray, containing trace amounts of IGF-1 has not changed since 2007 or 2008.)

You used some strong language in that memo. You called Finchem a liar. Why?

Well, because I wanted to be precise. I said that Finchem lied. Maybe that’s calling him a liar, but what I said was that Finchem lied, for precisely the reason I just said. Finchem said that WADA changed its view of deer antler spray, and that wasn’t true. And when I asked Finchem, incidentally, to explain why in announcing to the world that he wasn’t going proceed with the discipline he said something that was inconsistent with the facts, why he said something that wasn’t truthful, Finchem got up from his deposition and walked out of the room and refused to come back.

Are you allowed to do that?

You’re not allowed to do it. In my almost 30 years of practice, I’ve never seen anybody do it. It is the kind of activity that is an insult to the judicial system. But apparently, in the way Finchem thought that he could be cavalier with Vijay and his reputation, he felt that he could treat our judicial system the same way.

What happened after he walked out?

We have a video. We’re going to let the jury see how he behaves when he’s confronted with not telling the truth.

Will the public ever see that video?

The public is certainly invited to come to court.

Discovery revealed that the PGA Tour was aware of deer antler spray use by as many as five other professional golfers, but they didn’t face any discipline. The Tour has argued that those golfers played on the Champions tour, and its drug-testing policies don’t apply to senior golfers unless they’re playing on the PGA Tour. What do you make of that explanation?

I find it almost farcical. First of all, I’ll go through the documents with you to show you that there are multiple forms that the golfers sign, whether they’re playing on the Champions tour or the PGA Tour, where it states explicitly that they are subject to the PGA Tour’s anti-doping program. So, it’s not accurate. There were multiple golfers who were on the PGA Tour and also playing on the Champions tour. And the PGA Tour apparently has attempted to rationalize the non-discipline in that way. But if the PGA Tour rationalization were credible, what it means is that someone who’s playing both PGA Tour events and Champions tour events can use steroids, for example, throughout his time on the Champions tour, and then, right before going to play on a PGA Tour, can stop using the steroids, play the event, take advantage of the effective of a steroid, and not be disciplined. That can’t possibly be true.

That makes the Champions tour sound like an exhibition.

That’s right. What the PGA Tour’s position has done is to make the Champions tour seem less legitimate than it is. The PGA Tour is taking the position in this litigation that if you’re playing on the Champions tour, you can cheat all you want. And if that is going to be part of Tim Finchem’s legacy when he leaves, that’s part of his legacy.

From where I’m sitting there have been two major turning points in this lawsuit. You were originally seeking documents spanning the entire history of the PGA Tour’s anti-doping efforts, but the judge limited the scope of your discovery to the Tour’s handling of deer antler spray cases. Vijay is one of only four players to run afoul of the Tour’s anti-doping program. Did you uncover any evidence to suggest that the Tour’s drug problem runs deeper than that?

I believe based on anecdotal information that the Tour has not acted consistently with the way it disciplines golfers, that there are certain golfers with certain positions in the golf world who have been given a wink and a nod. And I think the Tour was very, very concerned about our discovery being as broad as we tried to make it. I also think if we were to have been allowed to discover the process which led to the creation of the anti-doping program, the world would have learned that it was less rational, less thorough, less thought out than behooves a professional organization. You know, you have to ask the Tour what it has been trying to hide. Every step of the way in this litigation, the Tour has been trying to hide. The Tour has been trying to hide how it treats other golfers. The Tour has been trying to hide how it created this policy. The Tour has been trying to hide its communications with WADA. The Tour insisted on a confidentiality agreement before it would provide any discovery, which for a long time caused us to have to redact almost every aspect substance from our papers. Now, finally, the judge, as we’ve approached trial, made it clear that that kind of game playing by the PGA Tour had to stop. And that’s why we were able to file papers which make it more clear what our position is.

That ruling was the second big turning point in the case. Why was that such a huge blow to the Tour’s case?

Well, like I said, the Tour has been trying to hide pertinent parts of how it treats golfers. And one important aspect of this case is the dynamic between, for lack of a better way to phrase it, labor and management. The Tour has taken the position that it’s management and, “You can’t see what we do behind the curtain. We just do what we want to do, whether it’s arbitrary, whether it’s capricious. We have the right to behave any way we want.” And the discovery, as limited as it might have been, and now our ability to set the record straight about what occurred, I think has allowed Vijay to disclose to his fellow golfers and to the public generally why this case is so important. My view is that this case is important both to Vijay personally and because there are labor management issues that are important. And Vijay, I think, has a right, and his fellow golfers have a right, to pull the curtain back and learn everything about management and how the executives of the PGA Tour treat golfers, feel about golfers, how seriously they do or don’t take their responsibility to treat everybody equally and fairly. Those are important issues, whether it’s in the golf world or at the GM plant. And workers have a right to know that stuff.

The notion of fair play is really the cornerstone of golf culture, so what kind of effect did the announcement of a suspension have on Vijay?

Vijay is still shaken by it. He’s emotional when he talks about it. He’s hurt by it. And he needs to have the public understand that he is not a cheater, and that the PGA Tour was wrong, that he violated absolutely no part of the anti-doping program. There are still times that people will scream out while he’s hitting a shot. But in a way, that’s probably of a lesser concern to Vijay than just the perception that anyone would believe what Finchem said about him being a cheater.

When Sports Illustrated polled Vijay’s peers in 2014, 64 percent of them told us they believed Vijay should have been suspended. Does that worry you and, more importantly, does it worry Vijay?

Our presidential polls change a lot as well. And depending on your politics, you might be very pleased about that. But we now know and his fellow golfers now know that using deer antler spray was never a violation of the anti-doping program. So, I think that golfers’ perceptions have changed since 2014. After all, in 2014, Tim Finchem was saying that Vijay was a cheater. And, so, it’s not surprising that most golfers who were polled said Vijay should’ve been disciplined. So, that was the problem with Finchem saying what he said and playing with the facts the way he did.

What does the Tour’s handling of the Vijay Singh case tell you about the way the Tour conducts its business?

I believe the commissioner has too much discretion. I believe that the workforce has too little involvement. And some of that may be the golfers’ fault. Golfers are independent contractors. And although there’s camaraderie, it is a different kind of labor force than in football, for instance, where the players have a union and the players go to union meetings and talk about important issues.

Is Vijay advocating for a change to PGA Tour policy?

I hope so. Hopefully, the Tour will be more responsible and thorough and fair, not only in saying stuff to the media before they know the facts and in violation of the program, but in how supposed violations are investigated, who’s involved in the investigations, what ultimately is said to the public. So, I hope that there has been a sea change in responsibility, in fairness. And the other thing is that the idea that the Tour could rationalize its disparate treatment, the fact that it treated Vijay differently than all those other golfers based on a rationalization that I think is offensive to any notion of common sense should cause the Tour to sit back and think, “We better make sure we’re treating everyone fairly. We better not be singling out player A and not player B,” whether it’s because one player has won more, has earned more, has a different image, has a different racial or ethnic makeup. The Tour should be careful. And hopefully it’s learned its lesson in that regard as well.

In your last court appearance, you told the judge that the two sides are still very far apart in their settlement negotiations. Vijay is a 34-time winner on the PGA Tour. He’s made millions on and off the course. What does Vijay want? Is there a number he has in mind that could settle this? Or is this about more than money?

I don’t know if there’s a number. Vijay is looking both to redeem his reputation and is looking for the PGA Tour to change its ways.

Is Vijay prepared to take this to trial to do that?