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Vijay Singh might have a bit of fun in his lawsuit against the PGA Tour as he demonstrates how badly tour officials handled his drug test and their attempt to suspend him. But the fun will end when Singh tries to prove to a court and a jury that the tour's blunders somehow harmed him and should result in an award of money damages.
There is little doubt that the tour's testing of the deer antler spray that Singh admittedly used, and its attempt to impose discipline on Singh, was at best a comedy of errors. Although the tour adopted its drug testing program in 2008, it remains, as Christine Brennan of USA Today insightfully labeled it, a "starter kit" in the world of performance-enhancing drug enforcement.
The failures of the tour's drug plan will allow Singh to prevail in the first phase of his lawsuit, known among lawyers and judges as the "liability" phase. Like hundreds of thousands of people pursuing civil damages cases each day in American courthouses, Singh must prove two things -- liability and damage.
To prove liability, Singh and his attorneys must show that the tour is guilty of misconduct. To prove damages, Singh must show that his reputation has suffered. That's where he will face some problems.
It is easy to see why the PGA drug program has not worked real well. The drug testing programs in the four major team sports were forged in collective bargaining between team owners and player unions, a process that produces a testing plan that has been checked and re-checked, written and rewritten. Even after intensive bargaining with top-of-the-line lawyers applying their lasers to the language of the plan, there can be flaws. We need look no further than the Ryan Braun fiasco.
The PGA Tour's drug plan is a barely coherent, cut-and-paste collage of language and ideas taken from other drug programs and appears to have been written by people who thought they had more important things to do. Like neurosurgery and piloting an airliner, drug enforcement is not something that can be done part-time.
The PGA dropped the program on the players without the scrutiny of a bargaining process and without the experience of the Olympics drug programs that have been in place since 1972. Players agree to the plan each year when they renew their tour memberships.
When tour officials learned in a Sports Illustrated report that Singh might have used a banned substance, they started their process seeking to determine whether the deer antler spray or any of its ingredients qualified as a banned substance. Under the PGA program, to be banned, a substance must "affect muscle, tendon, or ligament protein synthesis/degradation, vascularization, energy utilization, regenerative capacity, or fiber type switching." Without any of these physiological effects, the substance is legal.
As Singh attorney Peter Ginsberg explains in the lawsuit, the substance discovered in the spray and in Singh's urine sample was incapable of producing any of the physiological effects that are the basis of a PGA ban.
But, because the substance was on a list that the PGA borrowed from the World Anti-Doping Agency, the PGA officials concluded that it was a banned substance.
The problems were that the substance was present in the spray only in miniscule amounts (a shot of liquor in a swimming pool, in Ginsberg's description), that the substance was biologically dead and could not work even in a larger amount, and that the substance must be injected, not sprayed, to have any effect.
The PGA's failures are the kind of thing that attorney Ginsberg is particularly well able to exploit. Ginsberg is a tenacious and relentless advocate who has succeeded in sports cases considerably more difficult than the Singh situation. In his work for NFL defensive tackles Kevin Williams and Pat Williams, Ginsberg managed to fight the NFL to a standstill as it tried to suspend them for steroid violations. Ginsberg, who is based in New York, also represented Jonathan Vilma in the bounty scandal and assisted Michael Vick for a short time in Vick's bankruptcy.
Confronted with insurmountable evidence that the substance did not qualify for the PGA ban, the tour had no choice -- it abandoned its attack on Singh. Will the PGA Tour contest Singh's assertion in his lawsuit that the PGA was "reckless" in its attempts to operate its drug program? Tour officials won't say. They're not discussing any aspect of Singh's lawsuit.
Whether or not they try to defend their drug testing, the tour lawyers are sure respond to Singh's claim that his reputation was damaged with an aggressive attack on his character and his history.
Singh's claim that he has suffered "an unjust blemish on his personal and professional record" will allow tour lawyers to dig into Singh's background for other personal and professional blemishes. They will find both.
Singh's attorneys will fight them, but the PGA lawyers are sure to focus on Singh's criticisms of Annika Sorenstam's participation in the Colonial in 2003 and his stated hope that she would miss the cut. A jury that determines Singh's award of damages will not be favorably impressed with his misogynist tendencies.
In addition to his attack on Sorenstam, the PGA lawyers will tell the jury about Singh's attempt to change his scorecard in the Indonesian Open in 1985, a serious professional "blemish" that has followed Singh for nearly 30 years.
Dismissing its case against Singh when its flaws became apparent, the tour lawyers will suggest, repaired any damage to Singh's reputation.
When it is all over, Singh might wonder why he filed the lawsuit. As he continues with his career, instead of mentions of his 34 Tour wins including three majors, he will now face in media accounts and in the galleries routine use of the adjective "litigious" and the embarrassing phrase "deer antler spray." It might have been a better idea to forgive the PGA Tour for its blunders and to enjoy the good feelings that come to a man when he is able to forgive and to forget.