Drug test came back positive

A St. Louis Rams player may have a tough time making a case against a nutritional supplement manufacturer, but it still may be easier than battling an NFL suspension.

David Vobora, who was suspended after a positive drug test result, filed suit in federal court in St. Louis this week against S.W.A.T.S., an Alabama business that makes the “Ultimate Sports Spray” that he used.

Vobora claims that before he started using the spray he checked with other players, studied the listed ingredients and determined the spray didn’t contain anything prohibited by National Football League rules.

But a urine test came back positive for methyltestosterone, a steroid, which the NFL doesn’t allow. Vobora, a linebacker, was suspended without pay for four games during the 2009 season. He later sent the spray at issue to another lab himself and says that lab found it was contaminated with methyltestosterone, which the lawsuit said is a controlled substance under federal law and isn’t supposed to be sold over the counter.

S.W.A.T.S., whose acronym stands for Sports With Alternatives to Steroids, touts itself as offering safe choices for athletes who avoid steroids, illegal drugs and alcohol. A company official didn’t immediately return messages left Thursday by Missouri Lawyers Media seeking comment. But owner Mitch Ross earlier told the St. Louis Post-Dispatch that the spray has no substances banned by the NFL and questioned Vobora’s testing results.

Vobora’s suit makes negligence, breach of warranty, product liability and misrepresentation claims, including under the state’s Merchandising Practices Act. Bob Lattinville, a Stinson Morrison Hecker attorney who specializes in sports law, said athletes have a tough time getting the NFL to change its mind on suspensions, but could have a better chance in court with breach of warranty claims. Lattinville is not involved in the case.

From the league’s view, “You’re responsible for what you put in your body, irrespective of how it got there,” he said.

“It’s going to be a difficult case to make, that’s for sure,” Lattinville said. “A lot of it will depend upon what sort of advertising was done, if there were any promises made.”

At the same time, Lattinville said the 8th U.S. Circuit Court of Appeals is the federal circuit where NFL players have had the most success.

Vobora’s attorney is California lawyer Howard Jacobs, who has handled about a dozen similar cases for athletes against supplement makers. In one of the few such cases to reach trial, a jury awarded swimmer Kicker Vencill $578,635. Vencill claimed a multivitamin was contaminated and caused a positive test result. The parties later reached a confidential settlement, Jacobs said. In another case, a bobsledder reached a settlement of about $450,000, he said.

Vobora’s misrepresentation claims refer not just to the substances in the spray but also to the company’s anti-steroid proclamations. Vobora says he suffered lost income, not only from his suspension, which alone cost him nearly $100,000, but also in lost bonuses and endorsement deals. He alleges his reputation is “permanently tarnished.”

Attorney John Simon, of the Simon Law Firm, said at first blush the Merchandising Practices Act and breach of warranty claims may be the strongest elements of the case. His firm handles product liability and pharmaceutical litigation.

“You can’t make a statement about your product if it’s not true,” said Simon, who isn’t involved in the litigation.

The case is David Vobora v. S.W.A.T.S, 4:10-cv-810.