The lawsuit, joined by pro cyclist Amber Neben, alleges tainted Hammer Nutrition supplements caused positive tests, while Hammer President calls lawsuit “baseless.”
By Jay Prasuhn
Feb. 12, 2008 -- In a group suit, professional triathletes Rebekah Keat and Mike Vine, and professional cyclist Amber Neben served Hammer Nutrition, LTD. with a lawsuit, alleging that the company’s Endurolyte supplement contained banned substances that resulted in positive doping test results.
The suit, arranged by California lawyer Howard Jacobs and served Monday, Feb. 12 in Orange County Superior Court, seeks financial reparations for potential lost income due to their individual suspensions, as well as lost sponsorship opportunities, after each athlete used Endurolytes, which allegedly contained trace elements of the steroid precursor norandrostenedione, a banned substance under WADA code. Jacobs sent a press release on the filing to Triathlete Tuesday.
After winning Ironman Western Australia in 2004, Keat’s drug test revealed trace amounts of 19-norandrosterone. Despite an appeal hearing, where the Court Arbitration for Sport (CAS) accepted the result was due to supplement contamination, the Australian was suspended for two years by Triathlon Australia, Australia’s triathlon governing body. With the ban served, Keat returned to competition in 2007, winning Ironman Australia and earning a sixth-place finish at the Hawaii Ironman in October.
Vine, of Victoria, B.C. Canada, tested positive for trace amounts of 19-norandrosterone following the 2002 Xterra World Championships in Maui. At the time, he was sponsored by Hammer Nutrition and was using Endurolytes. As a result of the positive drug test, Mike Vine was suspended from competition for two years, and has returned to racing on the Xterra circuit, winning the 2005 and 2006 Mountain Championships and finishing second in the 2007 U.S. Pro Series standings.
After the UCI Montreal World Cup race on May 31, 2003, then T-Mobile pro cyclist Amber Neben’s drug test revealed trace amounts of 19-norandrosterone. At the time, the American was a member of a professional women’s cycling team that was sponsored by Hammer Nutrition, and was using Endurolytes. As a result of the positive drug test, Amber Neben was suspended from competition for six months. Neben returned to competition after the ban. She is currently a member of the Flexpoint Cycling Team and has been ranked among the top 10 cyclists in the world, winning numerous major stage races, including the Tour de l’Aude Feminin and the Redlands Cycling Classic.
19-norandrostenediol, a urinary metabolite of the banned steroid precursor norandrostenedione, is the moderately anabolic base of the steroid Deca-Durabolin. It was allowed to be sold in the United States after new legislation made it legal to sell it as a nutritional supplement. 19-norandrostendiol has been reported to increase strength, initiate rapid and massive muscle growth and allow for faster recovery.
Jacobs said there would be three possible causes for a product contamination. “The raw materials can be contaminated to start with. Or, they are making a product with norandrostenedione and don’t clean the encapsulation machine. Or, it’s intentionally spiked,” he said.
“The purpose is to reimburse the athlete for lost income, but it’s the damage to the reputation that is often the bigger part of the puzzle,” Jacobs told Triathlete Tuesday. “You can’t ever turn back the clock, but to some degree, it helps athletes have closure on the event. Right now, if you Google Rebekah Keat, the first thing you find is that she tested positive. It was the same with Olympic swimmer Kicker Vencil. But if you do it now, you’re likely to find stories about how he sued a supplement company and the jury awarded him about $600,000. “
Hammer Nutrition founder and president Brian Frank told Triathlete the lawsuit is frivolous. His statement reads: “The allegations contained in this press release and the lawsuit it references are baseless. We are confident that when all of the facts are known, we will be vindicated of any wrongdoing. We have referred this matter to our insurance provider who will be tendering our defense under our product liability coverage.”
Frank continued, "We have hundreds, if not thousands of athletes that take our products. The fact that three used them and got caught up in false positives for nornadrostendione is a stretch. "The suit has been filed in Orange County, and we’ll be defending it under product liability defense. It’s odd their lawyer is sending out releases, trying us in the court of public opinion. We’ve been making products for 21 years, with athletes like Scott Tinley and Scott Molina using them without fail. It’s unfortunate. We’ve seen Tyler (Hamilton), all these athletes that will do or say anything to clear their name. With this there’s no basis whatsoever.”
Frank said the Whitefish, Mont.-based company will likely sue the athletes for libel and slander. “It’s unfortunate, but scapegoating supplement companies will not work,” Frank said.
Endurolyte, a capsule product designed to reduce cramping in endurance athletes, has an ingredient list that includes sodium chloride, calcium, magnesium, potassium, Vitamin B-6, manganese and L-Tyrosene.
When asked if any products within his wide nutrition line contain 19-norandrostendiol, Frank said “Of course not, our entire product line is clean. All the products are made in facility that doesn't contain any banned substances. Production for Endurolytes is done by a vendor in NJ., a vendor we’ve worked with for 20 years. We have some production in Kalispell, MT, one in Florida as well. All are all banned-substance-free facilities. In order for someone to have tested positive with our products, someone would have to have intentionally laced them.”
Initial testing of the samples of Endurolytes from the package Keat used at Ironman Western Australia were undertaken by Simone Keat prior to seeking counsel with Jacobs, receiving a rare agreement with a WADA-accredited laboratory in Asia to test the supplements. “This was a massive achievement, as the director advised us that all laboratories were instructed to not test for athletes,” Simone Keat said, “The rationale being that athletes are responsible for what they ingest and strict liability applies.”
The suit, initiated by Keat and her twin sister Simone and joined by Neben and Vine, was filed after the samples were tested by two as-yet-unnamed laboratories—although he did confirm at least one was a U.S.-based lab—and both tests came up positive for nandrolone precursors, Howard said. “One is a WADA-accredited lab, and the other is run by one of the most respected people in the anti doping industry.”
Jacobs said the testing results for all three athletes was between seven and eight parts per billion, per milliliter. In comparison, former track and field athlete C.J. Hunter was found to have tested positive with 2000 nanograms per milliliter. “They’re not even comparable, Jacobs said. “If you talk to anyone educated in drug testing, cases like this with 7-8 are entirely consistent with contamination. That is, unless you just happen to be at the very, very end of a deliberate doping cycle—highly unlikely considering you have three athletes who tested with the same numbers within about a year or two of each other.”
Frank said the numbers are without foundation. “We brought in Dr. Richard Kreider, a top exercise physiology researcher,” Frank said. “According to Kreider’s research, in order for Keat to pee the numbers she was showing, she would have to have consumed 30,000 to 60,000 capsules. The likelihood she could pee those numbers from using a dozen caps in a race is absolutely impossible. And in our research, we have not been able to find a lab that can test down to parts per billion.”
When asked about what kind of conversations any of the athletes, or he, have had with Frank or Hammer Nutrition, Jacobs was blunt. “They were pretty aggressive with Rebekah,” he said. “There was no intention or even acknowledgment that there may have been a problem. There were some fairly intimidating letters, prior to her being represented by me, threatening her—threats of suing her, which they never did—for suggesting that this could have been caused by Hammer Nutrition products.”
Jacobs adds: “I’ve had very little communication directly with Hammer Nutrition on this. My sense was that lengthy proceedings prior to filing would have been a waste of time. The dealings I’ve had with them was a couple of years ago with Amber’s arbitration. USADA called them in as a witness. (Frank) was insistent that they don’t produce anything with steroid precursors. I asked him on cross examination where he got his raw materials, and he refused to answer.”
The nutritional supplement industry remains a largely unregulated one, with no Food and Drug Administration restrictions placed upon companies. It is this point that Jacobs is at odds with, considering that athletes are largely on the line for anything unregulated that they ingest. “It’s odd. Congress is spending so much on hearings about what athletes may have used steroids in baseball, but they continue to let the supplement industry operate in the fashion they do.”
While the courts will ultimately decide this suit, there is certainly no love lost between Frank and the Keat sisters, who initiated the suit. “This girl comes out of nowhere, who’s never won anything or an Ironman anywhere and smokes ‘em,” Frank said. “Two years go by and she claims she supposedly finds some supplement that she tested positive with.”
While her Ironman Western Australia win in record time was indeed surprising, Keat did have a resume to back the Ironman result, including a 1996 ITU Junior World Championship title. “For the record, Bek (Rebekah) didn’t come out of nowhere,” Keat’s sister Simone told Triathlete. “She won 13 of 14 half Ironman races before winning Busselton (IMWA) and had a world title under her belt.”
Still, much of Frank’s energy focuses on Keat. “Keat is leading this charge. She tried to play her game in Australia, but because the court system there is not as litigious there as it is here (in the U.S.), she didn’t pursue it. The deal was in Australia, the positive was found in Australia. They couldn’t get a law firm or come up with the $150 grand for a retainer. The only way she can pursue it here is by engaging U.S. athletes.”
Frank said that Keat’s sponsorship “deal” was acquired indirectly through an Australian distributor of Hammer Nutrition products, and that it was for different products than Endurolytes. “She had an endorsement that we had nothing to do with. Our policy has been that we don’t pay professional athletes—we work with amateurs.”
Frank said he has questions of his own for Keat. “Her "A" test was a 7 and her "B" was a 12. Under normal WADA protocol, that test should have been thrown out because of disparity—in cases over 10 percent, WADA tosses them. Why her defense never brought that up is a mystery to me,” he said. “And the other thing is she was using Endurolytes unknowingly to us since a distributor did that deal. What was odd was she made a request, saying she wanted -- in writing -- that (Endurolytes) would not cause her to test positive.”
Frank surmises Vine’s positive test had nothing to do with his supplements. “He was taking numerous other substances,” he said. "And keep in mind, Mike tested positive the same time a bunch of other Canadians were also on hot streaks or testing positive, like Roland Green. During Mike’s hearings, he never claimed supplement contamination—he said it was a mystery. There was even a theory about the Canadian back bacon -- that they used non-castrated male pigs that would have higher hormone contents, to make it.”
In addressing Neben’s case, Frank said, “She also claims contamination, but they had 14 products tested, and all of them tested negative. That was one of the most tested teams in the U.S. We were supplying them through Mike Engelman’s (U.S. Women’s Cycling Development Program director and founder) women’s development team, which was also the T-Mobile team, so not T-Mobile per se. But the funny thing is, she tested positive at a stage race in Quebec. All her teammates were tested and using the same product out of the same containers, and none of them tested positive.”
Jacobs said the three athletes are happy to have the filing announced publicly. “They all had to bite their tongues for so long, after sitting out and after coming back -- having people look at you differently and making inappropriate comments. So yes, they’ve been looking forward to it,” Jacobs said. “With doping cases, there is a media fatigue. It’s one thing to say you’re not guilty, that you didn’t take it, but it’s another to have evidence and file a suit about it.”
In the press release, Keat is quoted as saying, “The pain of being labeled a drug cheat and not being able to clear my name was soul-destroying and something I would not wish upon my worst enemy. Thanks to the hard work of my twin sister we finally have an answer and this lawsuit for me will bring some justice. Nothing can give me back my two years, but my self worth and soul are slowly rebuilding. At least now this chapter I don't want to remember may be closed and I can move forward with this burden finally lifted. I just want to focus 100% on what I love, triathlon, and strive to achieve my dream of winning Hawaii Ironman. ”
Said Vine in the release: “To be unfairly accused of using steroids has been one of the worst things that can happen to me as an athlete. Enduring a two-year suspension for this was a traumatic and incredibly difficult ordeal. My return to sport has not been without some unfair comments from competitors and press.”
Frank, meanwhile, is readying his defense, which he hopes to include a polygraph test. “One of the things we’ll insist on are polygraph tests, asking a simple question: Have you ever in your life knowingly taken banned substances? Their willingness to submit to a polygraph will speak volumes.”
Related: Hammer Nutrition official response to athlete lawsuit