By Brent Schrotenboer
UNION-TRIBUNE STAFF WRITER
Athletes who fail drug tests these days often give the same excuse:
â€œIt wasn’t my fault. I didn’t know my vitamins were tainted with steroids.â€
To skeptics, it sounds like a schoolboy claiming that his dog ate his homework.
But recently many athletes have been taking their arguments to court to prove they mean it â€“ often with successful results.
The latest attempt came Friday in San Diego Superior Court, where former San Diego State and NFL running back Femi Ayanbadejo filed suit against a Nevada supplement company and local distributor. Ayanbadejo tested positive for a steroidal substance last year, leading to a four-game suspension and his release by the Arizona Cardinals and Chicago Bears.
â€œI took a supplement that had a banned substance in it that was not listed on the bottle,â€ Ayanbadejo said yesterday. â€œI know a lot of guys have been using that excuse. But I said from the beginning that I was going to sue the company and make sure that whoever was responsible would face the music.â€
He said the stigma of testing positive in January 2007 has helped keep him from getting back in the league.
Defendant Author L. Rea, founder of ALR Industries in Nevada, did not return a message seeking comment. A person who answered the phone at the company said the product used by Ayanbadejo, Max LMG, has been discontinued.
Ayanbadejo also is suing the distributor, Nutrimart on El Cajon Boulevard, where the product was purchased between October 2006 and January 2007. That business is now closed.
Advertisement His case is similar to others brought by athletes in recent years after they tested positive and were suspended from competition, including New England running back Mike Cloud, believed to be the only other NFL player to bring such a suit. Most, like Cloud, reached undisclosed settlements to resolve their cases, which almost always means financial compensation for the plaintiff. Swimmer Kicker Vencill received a $578,635 judgment from a jury in 2005.
Most tainted supplement cases involved nandrolone, an anabolic steroid that builds muscles and enhances recovery from injuries and workouts. Ayanbadejo tested positive for a form of nandrolone.
â€œWe’re still not sure whether we have a pure cross-contamination matter (from the mixing facility), or we have a company that actually spiked the supplement (intentionally),â€ said Ayanbadejo’s attorney, Jim Miller.
Athletes go to court because their governing sports bodies leave them little other recourse to clear their names. The NFL’s drug policy states â€œa positive test result will not be excused because a player was unaware that he was taking a prohibited substance.â€ Athletes are held strictly liable by leagues for what they put in their bodies, no matter if it was bought over the counter or that the product may have been tainted.
But a recent study showed that the tainted supplement excuse is no mythical homework-eating dog. Twenty-five percent of 58 supplement samples purchased from popular retail outlets and Internet sites showed the presence of steroid contamination, according to Informed-Choice, a nonprofit partnership between supplement companies and an anti-doping lab. The study was funded by the supplement companies.
The dietary supplement industry is largely unregulated and worth about $20 billion a year. The question is how the banned substances get in the products. One theory is that some companies are eager to grab a share of that market and do so by spiking muscle-building products with ingredients that will work exceptionally.
â€œThey put tainted products knowingly on the shelves to get the user to come back to that product,â€ said David Cornwell, an attorney who represented Chargers linebacker Shawne Merriman in his appeal of a nandrolone positive in 2006. Unless the supplements are certified by the NFL as safe, Cornwell said, players are â€œplaying Russian roulette with their careersâ€ by taking them.
Other possible reasons: The raw materials, sometimes coming from China, may be contaminated to start. Or cross-contamination occurs from other products.
Attorney Howard Jacobs has brought a handful of suits against supplement companies on behalf of athletes. He said he found that â€œmost are pretty reluctant to divulge where they’re getting their raw materials. But a large percentage . . . come from China.â€
Jacobs is representing tennis player Graydon Oliver, who reached a partial settlement in his suit against a supplement company. Oliver tested positive for a prohibited diuretic in 2003 and was suspended for two months. He said the substance was contained, unbeknownst to him, in an herbal sleep aid.
Jacobs said the remainder of the suit is scheduled for trial this summer against a Chinese acupuncturist who imported the pills from China.
Kelly Hoffman of Informed-Choice said most contamination levels are â€œso minimal that they may not have a physiological effect. It wouldn’t make you run faster, be stronger. The issue is more of a drug-testing threshold.â€
Ayanbadejo never previously failed a test in 15 years of college and pro football, his suit states.