In a decision that includes a hefty set of sanctions, the U.S. Fifth Circuit Court of Appeals Thursday affirmed dismissal of a federal case filed by Neiman Nix, a former professional baseball player and pro se petitioner who has repeatedly sued Major League Baseball, the league’s commissioner, the Major League Baseball Players Association, each of the major league teams, a major league baseball player individually, several media organizations, the makers of Gatorade, and a variety of other nutritional companies for having …
… well, that’s kind of the problem, the Fifth Circuit ruled.
“Nix strikes out once again,” wrote Judge Jerry Smith for the three-judge panel.
The lawsuit(s) stemmed from a 2013 investigation into the use of performance enhancing drugs, which resulted in the development and deployment in 2015 of the Joint Drug and Treatment Program, which defines impermissible drug usage by MLB players.
Among the drugs proscribed was “Insulin-like growth factor 1” (IGF-1), a ubiquitous growth hormone that in trace amounts is important in childhood development but has anabolic effects in adults. Nix owned a now-defunct company, DNA Sports Performance Lab Inc., that distributed natural animal substances possessing significant amounts of IGF-1.
DNA Sports was among several sports performance businesses targeted during a 2013 MLB investigation that resulted in a ban on IGF-1, effectively ending the market for the company’s performance enhancing products. In 2016, Nix began suing the MLB, first in the Southern District of New York, alleging tortious interference with his business relationships.
When the media — including ESPN, the Associate Press and USA Today — reported on the New York lawsuits, Nix sued them in the Southern District of Florida, claiming that their coverage was defamatory. When that lawsuit was tossed, one of the defendants informed the MLB in an email Nix deemed offensive. He then sued the MLB in New York state court and a California federal court, according to the Fifth Circuit decision.
At the heart of his argument, Nix claims that because of its natural origins the IGF-1 in his products differed significantly from “performance enhancing drugs” — which he describes as any substance mentioned specifically under Schedule III of the Controlled Substances Act. However, IGF-1 has long been banned in a wide range of sports by the World Anti-Doping Agency and is a controlled substance under the 2004 Anabolic Steroid Control Act.
The California court ruled that Nix failed to state an actual claim and offered Nix a chance to amend his petition. Nix declined, the suit was dismissed and the court sanctioned Nix and his company. According to Thursday’s opinion, those sanctions remain unpaid.
The case under appeal to Fifth Circuit involves a 100-page pro se complaint subsequently filed and dismissed in the Southern District of Texas before Judge Lee Rosenthal. The complaint was dismissed against the MLB and the players’ union because Nix had requested his California lawsuit be dismissed with prejudice. As with the Fifth Circuit appeal, his suit against the other defendants was dismissed for failure to state a legal claim.
Aside from reiterating his previous lawsuits over the issue, Nix asserted in his Texas lawsuit that the MLB’s Joint Agreement ban of IGF-1 should require the MLB to ban all players who eat meat and dairy products (which contain trace amounts of the substance) and “should be shut down and/or become a business catering only to vegan players/employees.”
He claimed his New York case was dismissed because the court was misled by the MLB. “MLB admits and acknowledges that milk and hamburgers contain traces(sic) amounts of IGF-1. Yet MLB Clubs provide such basic items to all players in the clubhouses in all MLB stadiums.”
The district court dismissed those claims, denied him the opportunity to amend and imposed sanctions that forbade him from filing any new pleadings, cases or motions in the SDTX against Major League Baseball or the MLBPA without obtaining the permission of the chief judge.
Smith’s opinion notes the court’s intention to end what it views as Nix’s history of frivolous litigation, at least, at least within Fifth Circuit venues.
“Nix has filed nine lawsuits in four different states,” Smith wrote. “Three courts have imposed sanctions. We become the fourth and end Nix’s onslaught of vexatious and frivolous litigation in this circuit.”
“In short, Nix’s claims bat far below the Mendoza line,” Smith wrote, a popular baseball reference alluding to former major league shortstop Mario Mendoza, whose batting average, frequently resting below .200, became a metaphor for professional futility.
Major League Baseball and other baseball defendants were represented by Adriana Riviere-Badell of Kobre & Kim in Miami, as well as Elizabeth Anne Wyman and James Zucker, both of Yetter Coleman in Houston.
Gatorade was represented by Nancy Lynne Patterson of Morgan, Lewis & Bockius in Houston.
Informed Choice, another defendant, was represented by Dallas attorneys Thomas Spitaletto and Valeri Williams of Wilson, Elser, Moskowitz, Edelman & Dicker.