How NFL and Peyton Manning could respond to accusations of HGH use
According to a Huffington Post report of an Al Jazeera investigation, the Indianapolis anti-aging clinic Guyer Institute supplied Peyton Manning with human growth hormone (HGH) in 2011 to help him recover from neck surgery.
Manning, who emphatically denies Al Jazeera’s accusation and by all accounts has never failed a drug test, is accused of obtaining HGH through packages sent to his wife, Ashley Manning. The key informant in Al Jazeera’s report is former Guyer Institute employee Charlie Sly, who was secretly recorded by British athlete and undercover investigator Liam Collins (the recording appears to have been done in Texas, which is a “one-party consent” state for purposes of recording law, meaning Sly did not have to give his consent to be lawfully recorded). Sly has since recanted his accusations against Manning and other players, bringing the report's validity into question.
Physicians can lawfully prescribe HGH for three specific types of uses (HGH deficiency, Idiopathic Short Stature and physiological wasting from AIDS), but through collective bargaining the NFL and NFLPA have banned HGH for use by NFL players. So, as explained below, if Manning used HGH, and that's a big if at the moment, the league could reason that it undermined the integrity of the game and warrants a stiff punishment.
How the NFL could respond to the accusations against Manning
The Al Jazeera report places the league and NFL commissioner Roger Goodell in an awkward spot. Manning, who is 39 years old and still recovering from injuries, appears to be nearing the end of a storied NFL career. Would the league commence an investigation into allegations that, if true, occurred nearly five years ago, and would the league continue the investigation if Manning retires? But if the league ignores allegations that concern a form of cheating, would Manning be an undeserving recipient of favorable NFL treatment over Tom Brady—the subject of a multimillion dollar investigation and federal litigation over assertions that concern slightly under-inflated footballs?
Reasons for the NFL to not investigate Manning
The league could determine that it should not investigate Manning over an accusation that centers on alleged conduct from 2011. Nearly five years have passed since Manning would have taken HGH, making it potentially difficult to obtain corroborating evidence. While there is no “statute of limitations” for the NFL to investigate a player accused of misconduct, in criminal law many noncapital crimes are not subject to prosecution after several years have passed. For instance, there is a five-year statute of limitations for most federal drug crimes. One leading rationale for capping how long a person can be prosecuted for a crime is that evidence tends to become less reliable over time.
In that vein, the NFL could reason that 2011 is simply too far back in time to warrant the launching of a new investigation in 2016. Also, although the NFL and NFLPA had already banned HGH in 2011, the league and NFLPA had not yet adopted testing procedures. This likely means the league would not have “caught” Manning in 2011.
It is also not clear whether the NFL would receive any cooperation from the supposed witnesses. Most of the key figures from the Al Jazeera report—Collins, Sly, Ashley Manning and the Guyer Institute—have no contractual obligation to speak with the NFL. Moreover, as a private company, the league has no subpoena power to force them to speak. These procedural hurdles are in sharp contrast to when the NFL investigates conduct allegedly committed by NFL team employees, who are subject to contractual requirements that they cooperate with the league.
Major League Baseball faced similar procedural hurdles when investigating Alex Rodriguez and the Biogenesis clinic. MLB only got around these hurdles by suing Biogenesis for tortiously interfering with player contracts. It seems unlikely that the NFL would undertake such a legal effort here.
Reasons for the NFL to investigate Manning
The claims against Manning have surfaced in what would be an especially awkward time for the NFL to take no action: the Deflategate era. The NFL has spared no expense investigating Brady over what amounts to a scientifically doubted accusation about slightly underinflated footballs used in a blowout game. Indeed, the league has spent millions of dollars in hiring several prominent law firms to scrutinize Brady and now litigate against him in federal court.
Here, Manning is accused of violating a far more important policy than mere equipment rules: the league’s policy governing performance-enhancing drugs (“PEDs”). Use of PEDs, in Goodell’s own words from his “final decision” on July 28 to uphold Brady’s four-game suspension, “reflects an improper effort to secure a competitive advantage in, and threatens the integrity of, the game.” A player who tests positive for a PED receives a four-game suspension, which can increase to six games if the player used masking agents or attempted to manipulate the test results. Critics of the NFL might wonder whether the league would be engaged in favoritism if it sweeps the accusations against Manning under the rug while it wages an almost historic crusade against Brady.
Also, although Manning has not failed a drug test and thus could not be punished for using HGH, the league could punish him for related conduct. Recall the sweeping wording of Article 46 of the CBA: the commissioner can punish players for any “conduct detrimental to the integrity of, or public confidence in, the game of professional football.” In all likelihood, this language would be sufficiently encompassing to enable the NFL to punish a player who obtained HGH through one’s wife. Also consider that other leagues have punished for related conduct. As reference above, Major League Baseball severely punished Alex Rodriguez in the aftermath of Biogenesis despite the fact that Rodriguez had not failed a drug test.
If the NFL launches an investigation, don’t expect it to be styled as an “independent” effort undertaken by a law firm. This device backfired against the league in investigating Brady when Ted Wells acknowledged that the NFL had edited his report and when he invoked his attorney-client privilege with the NFL. More likely, the league would investigate Manning on its own, as is normally the method used by professional sports leagues in conducting investigations.
How Manning could respond to the accusations
In a statement, Manning categorically denies the report, saying, “it is totally made up” and “it never happened.” If Manning is telling the truth, he could bring a defamation lawsuit against Sly for the accusation and Al Jazeera for its report. Manning would be able to show damages fairly easily, as an international report depicting him a cheater is clearly damaging to his reputation.
Manning, however, is a public figure, and under defamation law, it means he must prove actual malice: not only must he show the accusations are untrue but he must also show that Sly and Al Jazeera knew the accusations were untrue. Actual malice is normally difficult to prove, although given that Al Jazeera likely expended considerable resources fact-checking a story of this magnitude, Manning could make a plausible argument that Al Jazeera must have known the accusations were untrue.
Then again, Manning would accept some risk in bringing a lawsuit. For one, if his lawsuit advances he would become subject to pretrial discovery, which would involve sharing evidence and giving sworn testimony that would risk perjury charges. Recall that Brady voluntarily gave his Deflategate denials while under oath—it’s not yet clear if Manning would be willing to deny the HGH allegations while under oath. Manning might also not want to subject his personal life to the unintended consequences of civil litigation. His wife, Ashley, would likely be required to give sworn testimony, as might other family members.
It’s also not clear a defamation lawsuit would be worth Manning’s time and energy. Such a lawsuit would take many months, if not several years, to play out. Various publications indicate that Manning is worth more than $100 million, which means the prospect of winning hundreds of thousands of dollars or even millions of dollars in a defamation lawsuit might not be as alluring for Manning as it would be for most people.
Instead of litigating, Manning might simply hope the story goes away on its own. That would only happen, however, if the NFL declines to pursue it. At this moment, the league has no comment. Stay tuned.
Michael McCann is a legal analyst and writer for Sports Illustrated. He is also a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He teaches an undergraduate course at UNH titled “Deflategate.” McCann is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law and he teaches “Intellectual Property Law in Sports” in the Oregon Law Sports Law Institute.