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Monday, October 14, 2019

Former pro baseball player sues AP, ESPN and USA Today for defamation over article about elk antler supplement


By Kyla Asbury | Jun 26, 2018

MIAMI (Legal Newsline) – A former professional baseball player and his company are suing ESPN, The Associated Press and USA Today after a 2016 news article was published that had alleged false information. The three defendants have filed motions to dismiss the lawsuit.

Neiman Nix founded DNA Sports Performance Lab in 2012 and manufactured a health supplement that is derived from antler tissue that is naturally shed by elk and is humanely harvested, according to a complaint filed in Florida state court in March and then removed to federal court on June 4.

The substance is not prohibited by the Worldwide Anti-Doping Agency or several other agencies and is not a performance-enhancing drug, according to the suit.

Nix claims he became the target of an investigation by Major League Baseball (MLB) in 2013 when he was falsely accused of selling illegal performance-enhancing drugs to MLB players.

MLB allegedly caused an economic blow to Nix's business and he and his company filed a lawsuit against MLB in July 2016. On the day the lawsuit was filed, ESPN and USA Today published a story written by an Associated Press writer that contained false information, according to the suit.

The sentence Nix is challenging is "The suit admits Nix and his company used bioidentical insulin like growth factor (IGF-1), which is derived from elk antlers and is on baseball's list of banned substances," the complaint states.

Nix claims the defendants' false information implied that he and his company sold illegal drugs or legal drugs in an illegal manner and it damaged his reputation.

Nix is seeking compensatory and punitive damages. He is represented by Alex S. Hornik of the Law Office of Alex S. Hornik in North Bay Village, Florida.

The defendants filed motions to dismiss on June 8 in the U.S. District Court for the Southern District of Florida.

In ESPN and USA Today's motion to dismiss, the media companies allege that because they did no original reporting and relied on the Associated Press, a wire service and reputable news source, they should be dismissed from the lawsuit.

"Here, ESPN’s and USA Today’s reporting falls squarely within the wire service defense," the motion states. "ESPN and USA Today relied on AP, a recognized, reliable news source, for their stories."

The news stories published by ESPN and USA Today were "facially verbatim recitations of the text of the source AP story," which included the one-sentence statement that Nix and DNA claim is false information.

In the Associated Press' motion, it states that Nix and DNA note that one of the main ingredients used in the supplement is from bio-identical Insulin-like Growth Factor, which is known as IGF-1.

The prohibited substances list by MLB lists IGF-1 as a substance that is banned by MLB, according to the motion.

"In the text of the prohibited substances list, MLB describes the relevant list as 'non-exhaustive,' but specifically names IGF-1, without any restrictions on the form of the substance," the motion states. "In other words, MLB bans both synthetic and bio-identical forms of IGF-1, despite plaintiffs’ obvious wishes to the contrary."

The Associated Press notes that while it can see that Nix and DNA are "frustrated" with MLB's position on banning IGF-1 in all forms, it does not matter what other agencies ban and don't ban, because the substance is on MLB's banned substances list.

The defendants are represented by Carol Jean LoCicero and Allison Kirkwood Simpson of Thomas & LoCicero in Tampa, Florida.

U.S. District Court for the Southern District of Florida-Miami Division case number 1:18-cv-22208

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The Associated Press U.S. District Court for the Southern District of Florida USA Today

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