San Diego Mark McGwire, the Cardinals slugger who hit a record 70 home runs last season, isn't scheduled to visit San Diego until mid-May, when the Padres host St. Louis in a three-game series. But McGwire's lawyers are already in town and doing some preseason slugging of their own, suing a local multi-level marketing company that used McGwire's image to sell a dietary supplement called the Freedom Formula. The San Diego company, an outfit called People First Inc., claims McGwire endorsed its product last year in an impromptu locker-room photo-shoot with one of its distributors. McGwire's lawyers say it ain't so.
In a suit filed in St. Louis late last month, they accuse People First of "fraudulent and unauthorized use of Mr. McGwire's name and likeness." They also accuse the company of concocting "phony quotes in its marketing, promotion and distribution of...the Freedom Formula," which is touted as a "neutraceutical derived from a plant that comes from the rain forest." A month's supply costs about $75. "It's kind of a limb-loosener and pain reliever," says James S. Turner, the company's attorney and the only member of the management team who agreed to be interviewed for this story. McGwire's alleged endorsement, publicized in a sales brochure People First says it has now discontinued, can still be viewed on the websites of some of the company's independent distributors. It features a snapshot of McGwire holding a bottle of the pills and reads:
Saint Louis Cardinals' Mark McGwire with the Freedom Formula
Twice before, Mark McGwire threatened to break sport's most celebrated record -- 61 home runs in a single season. Both times he failed when pain in his back and Achilles tendon sidelined him late in the season. But this year was different -- thanks to the Freedom Formula!
All through the stretch run and into the record books, McGwire relied on the Freedom Formula to keep him pain-free and in the line-up.
How does this relate to you? Well, over 100 million Americans suffer from chronic pain. The Freedom Formula has worked for over 90% of those who have tried it! Mark just happened to be the most famous.
How can you profit from this amazing product? By teaming up with Mark...and People First, Inc., you can position yourself to win with the Freedom Formula and the explosive publicity surrounding Mark's success!
Then, according to McGwire's attorneys, comes the real whopper, an item that looks and reads like a news story and features a quote from McGwire that links his record performance last year with his use of the Freedom Formula. There's just one problem: McGwire says the quote is a flat-out fabrication. And People First distributor Dave Parker, the only company representative who knows for sure, agrees that McGwire never said it.
CINCINNATI -- St. Louis Cardinals' slugger Mark McGwire, baseball's new home run king, credits a special "tip" from batting coach Dave Parker for helping him make history.
"It wasn't a batting tip," McGwire said, "but a health tip."
About two months ago, when chronic back pain and a tender Achilles heel flared up and threatened again to slow down his home run chase, McGwire turned to Parker for advice. Parker, a former National League MVP and baseball's first player to sign a million-dollar contract, had an answer.
He introduced McGwire to the Freedom Formula, a safe, all natural, plant-based product for pain and inflammation. McGwire started taking the product, got immediate results, and the rest -- as they say -- is baseball history.
"Mark takes the product religiously," said Parker, a distributor for network marketing's newest superstar company, People First. "Every time he sees me he says, 'Thanks for that product!' He has a dozen bottles in his locker so that he won't run out before the end of the season."
Twice before -- in 1996 and 1997 -- McGwire chased baseball's cherished home run mark only to fall short late in the season when pain slowed him down. But this year, thanks to Dave Parker and the Freedom Formula, the big red-head has re-written baseball lore.
Now "Big Mac" is off to Cooperstown. And no doubt taking The Freedom Formula with him.
"[That] sounds like an interview and that wasn't the case," Parker says. "Mark told me the product worked, he liked taking the product. That's all he said. I can't say that all [the quotes] corresponded with what happened and what he said. When anybody asked me what the response was from McGwire, I said McGwire said, 'Wow, this stuff works.' That was basically it."
McGwire's attorneys, Michael A. Kahn of St. Louis and James W. Huston of San Diego, have asked the court to bar People First from using McGwire in any of its sales and marketing materials and asked for thousands of dollars in damages for "embarrassment, humiliation and indignity caused" by the ads, as well as thousands more in punitive damages.
"To us it seems very clear-cut," says Kahn. "There was no agreement between Mark and this company, there's no consent and there's certainly been no payment."
David W. Allen, the CEO of People First and the only named defendant in the case, declined to be interviewed for this story. But Turner, the company's attorney, insists Allen believed that McGwire, who was given free supplies of the supplement by Parker and agreed to pose for a picture holding a bottle, knew the picture would be used in product promotions.
"The dispute is whether Mark said, 'Go ahead and use the photo for promotion,' " says Turner, who has represented Allen for 15 years. "Parker was adamant that Mark McGwire said, 'Use it.' So we used the name. As soon as he said stop using the name, we stopped using the name. We don't think we owe him anything. We think we're right."
Although Parker isn't a defendant in the suit, he played a key role in the sequence of events that led to it. A former baseball great who has had five knee surgeries and two thumb surgeries, Parker says he was turned on to the Freedom Formula by a friend and was so impressed by how quickly it relieved his pain that he became a distributor himself. Today, Parker says, "I got my mother on it, my brother, my sister, my wife, my mother-in-law, just about everybody that's close to me. I feel so strongly about it that I got all my loved ones on it.
"I think it's a product that the world could use. If you can alleviate pain, or take it away from people throughout the country, I think you are doing a little bit of God's work."
So last year, when Parker was working as a batting coach for the Cardinals, he introduced McGwire and several of his teammates to the Freedom Formula, giving them free bottles of the pills. When People First's Allen -- or "Doc," as Parker calls him -- found out that members of the team were using the Freedom Formula, he asked Parker to get some snapshots.
"Doc wanted pictures of the guys," Parker says. "So I was with a bunch of guys -- Brian Jordan, DeLino DeShields, Ray Lankford, Willie McGee, and Mark McGwire. And I said, 'Everybody's using the product. Everybody's happy with the product. What I would like to do is take some pictures to promote the product.' So that was out there. Nobody complained. I'm not saying Mark said, 'Yeah' or not, because I don't recall that. But nobody complained. So I took the pictures and I sent them out [to San Diego]."
Faster than you could say "single-season home-run record," the photograph of McGwire was everywhere: plastered across People First's marketing materials and reproduced by distributors and posted on their websites on the Internet. The company also used McGwire's name in a recorded message on the toll-free number it maintains to sell the Freedom Formula and recruit additional distributors for the company. The recorded advertisement remained on the toll-free line even after McGwire's attorneys wrote a letter to the company asking it to cease and desist. The company says that was an oversight. McGwire's attorneys say they're skeptical.
"The thing that's kind of surprising is that they don't seem to be very smart about this," says Huston, of Gray, Carey, Ware & Freidenrich.
"They don't seem to be doing what to me is the obvious right thing to do. Stop when you're asked and then talk about the damage you've done and how you'll fix it. I don't see those things happening."
(The recording has since been modified. All references to McGwire have been dropped from the ad. It now only mentions "St. Louis batting coach Dave Parker" by name, even though Parker no longer works for the Cardinals and lives in Cincinnati, where he owns a Popeye's Famous Fried Chicken and Biscuits franchise.)
The dust-up appears to be the first legal scrape for People First, a relatively young minority-owned firm headquartered in the Golden Triangle. Even Kahn, McGwire's St. Louis lawyer, admits, "we had trouble finding out a lot of information about them." Although the Freedom Formula has been sold since last summer by the independent distributors in the company's multi-level marketing network, People First itself only incorporated late last year, right about the time the company received the cease-and-desist letter from McGwire's attorney.
It isn't clear whether Allen, the company's CEO, is a medical doctor or not. Although some of the company's literature refers to him as Dr. Allen, the only degree mentioned is a Ph.D. not an M.D. An 18-page company overview lists the members of the management team but provides only the sketchiest details about their backgrounds and previous accomplishments. For example, Barbara Allen, the company's COO, is described this way: "Ms. Allen, a well-known authority on women's health and nutrition, brings her intuition and expertise to the business world of Network Marketing."
The company's mission statement includes an amalgam of New Age rhetoric and curious allusions to Adam Smith and Thomas Jefferson. It reads, in part, "Our mission is to become a model for change. We believe a company dedicated to the cause of humanity and grounded in the principles of free enterprise will herald a new worldwide 'renaissance' in health and financial freedom." People First also believes in something called "Quantum Health" -- the concept is never really defined -- and is dedicated to exposing "the flaws in an outdated medical care system that victimizes dedicated health care professionals and, consequently, their patients. In the process," the company says, "we are committed to elevating Network Marketing to its rightful place as the greatest source of grassroots capitalism in history."
Two pages of the overview briefly describe the company's two products: The Freedom Formula, and something called Amazonic 10, which People First advertises as "an all-natural supplement that enhances people's moods, boosts their immune system and reduces unhealthy cravings." The rest of the overview is dedicated to the company's compensation program for distributors, a system so complicated it takes nine pages of diagrams and notes to explain it all.
Turner, meanwhile, says People First isn't particularly worried about the loss of its star endorsement.
"Frankly," the People First lawyer says, "it wasn't a very good name. Nobody really signed up because of Mark McGwire. In fact, there was a lot of confusion, and we had to really guard against it being confused with the other drug he was taking."