Having caught up on sleep and bills, shall we revisit that which occurred while I was off on our walkabout?
Bring Lawyers, Guns and Money - We flooded the zone on antitrust analyses, though admittedly a bit early, though the delay in filing this lawsuit seems to this observer a head-scratcher. But it hit just as your humble blogger was wheels down in Inverness:
Phil Mickelson, Bryson DeChambeau and nine other LIV Golf players filed an antitrust lawsuit against the PGA Tour on Wednesday. The Wall Street Journal was the first to report the matter.In a 105-page complaint, the players are challenging their suspensions by the tour for defecting to the Saudi-backed circuit. Three of those in the lawsuit—Talor Gooch, Hudson Swafford and Matt Jones—are attempting to receive a temporary restraining order that would allow them to play the FedEx Cup Playoffs, which begin next week at the FedEx St. Jude Championship in Memphis. All three would have qualified for the tour’s postseason had they not been suspended.“The purpose of this action is to strike down the PGA Tour’s anticompetitive rules and practices that prevent these independent-contractor golfers from playing when and where they choose,” the complaint alleges.
I do hope that that's the ensemble that Phil has chosen for his deposition....
The lawsuit was filed in the U.S. District Court for the Northern District of California, an example of the art form known as venue shopping. While their choice of venue is logical, that ninth circuit is also home to the leader in the clubhouse in decisions being overturned, adding to an already lengthy process.
Regardless of how one views the merits of such claims, and it feels highly dubious to this observer, the overriding factor is that this will play out over a period of years, if not decades. It has a strong whiff of USFL v. NFL, methinks, ironic because of the involvement of a certain NYC real estate developer.
If you'll recall, I posed the relevant question back when we first focused on the antitrust implications, is there a case for injunctive relief?
The complaint from the LIV players alleges that being denied access to the FedEx Cup Playoffs not only would prevent Gooch, Swafford and Jones from playing in those events but “also cripples their chances of qualifying for both the Majors and the Tour’s premier invitationals in future seasons. The punishment that would accrue to these players from not being able to play in the FedEx Cup Playoffs is substantial and irreparable, and a temporary restraining order is needed to prevent the irreparable harm that would ensue were they not to be able to participate.”
Hold those crocodile tears, kids. The TRO was limited to the three players because the other plaintiffs either wouldn't have qualified or had resigned their PGA Tour memberships, a twist I most certainly did not see coming.
I think we can all agree that playing in the FedEx Cup is what's known as a natural right, endowed by our creator. Certainly the ninth circuit would agree, right? Not so quick, Goochie:
The federal judge who denied temporary restraining orders to three LIV Golf players who wanted to come back to the PGA Tour to compete in the FedEx Cup playoffs said the plaintiffs failed to "even show that they have been harmed -- let alone irreparably."United States District Court Judge Beth Labson Freeman, of the Northern District of California, made that assessment in her written ruling that was released on Thursday. Freeman ruled on Tuesday that the PGA Tour could ban Talor Gooch, Matt Jones and Hudson Swafford from competing in the FedEx Cup playoffs while they were suspended for appearing in LIV Golf tournaments without conflicting-event releases."Based on this evidence, [temporary restraining order] Plaintiffs have not even shown that they have been harmed -- let alone irreparably," Freeman wrote in her ruling. "It is clear that the LIV Golf contracts negotiated by the TRO Plaintiffs and consummated between the parties were based on the players' calculation of what they would be leaving behind and the amount of money they would need to compensate for those losses.
It's quite the entitled view of the world, no? Having been told with great clarity by Jay Monahan what would happen if they jumped, they when ahead and jumped anyway, which would seem to have to be for one of two reasons (which aren't, strictly speaking mutually exclusive:
- They believed Greg Norman's assertions that the PGA Tour could not legally bar them; or
- The check was large enough to be worth it, even if the TRO/Antitrust lottery ticket did not pay off.
What happened?To obtain a TRO, the players had to prove that they suffered irreparable harm from failing to appear in the FedEx Cup. “Irreparable harm” means that they suffer some incalculable damage. If you can put a dollar figure on the damage, you don’t get a restraining order. This is mandatory. If you can be made whole by award money, you lose.So it’s a terrible, terrible problem for Gooch, Swafford, and Jones that the following paragraph was included in their expert Dr. Jeffrey Leitzinger’s[7] report:“The costs would also include a loss of opportunities to earn ranking points, to earn entry into the Majors, and to earn retirement benefits. Given these added costs, many Tour members understandably would be very reluctant or altogether unwilling to participate in LIV golf events. It is no surprise then that many elite golfers that agreed to participate in LIV golf events required large upfront payments.”Judge Freeman seized on Leitzinger’s report from the get-go. She asserted that this admission meant that the players themselves had already extracted large compensation from the risk of missing majors, retirement benefits, and world-ranking points. This is why LIV players are getting huge upfront money. If you have followed any moment of the LIV golf saga, you intuitively know this.In short, the Court concluded that there is no risk of irreparable harm. If the players were able to figure out that they needed massive payments beforehand (and actually received them!), then a court would figure out damages later on, too.
They want their cake and eat it too.... What a good look, no?
While the decision is limited to the requested TRO, this absence of actual damage overhangs the entire case. This seems a rather common reaction:
What are the players chances in winning the rest of this lawsuit?
We asked a few attorneys what they thought the TRO denial meant. In the words of one other lawyer we spoke with:
“This case is going nowhere. It’s deader than a doornail. It’s clear the judge sees LIV as a viable competitor to the PGA Tour. The Leitzinger report says that players have voluntarily foregone the certainty associated with the PGA Tour, the FedEx Cup, and the coveted majors spots in exchange for upfront payments. That is evidence of a functioning marketplace—not monopolistic behavior.”
“The Plaintiffs kept referring to a letter Jay Monahan wrote as the ‘Monopoly Manifesto.’ Right at the end of the hearing, Judge Freeman said she really didn’t think it was an appropriate title and said the letter was standard corporate-speak. She might have tipped her hand a bit there. I would not be surprised if the LIV players withdrew their lawsuit to avoid more damaging rulings.”
The defects in the case don't end here, as antitrust law was designed as a remedy for lost profits due to monopolistic behavior. One quite obvious problem for LIV is that, if you've offered a 51-year old golfer $200 million, I think we can safely rule out profitability as an objective.
So, was there any good news for the LIVers?
Man, did anything go right for the LIV players?Well, Judge Freeman did say she was concerned about the PGA Tour’s efforts to pressure vendors. And she also said that some of the LIV players’ facts sounded as though they could plausibly make claims. But there weren’t a whole lot of positives the Plaintiffs could draw from the hearing.
And the next front?
If this case gets dismissed or withdrawn, is that the end of LIV lawsuitsPossibly not. One lawyer we spoke with felt that the better case from LIV’s perspective was against the entities that make up the Official World Golf Ranking (OWGR). In some sense, the agreements between the PGA Tour and the OWGR members look like horizontal agreements to exclude new competitors and entrants in the professional-golf market. Maybe, we are told, it would be easier to legally attack those structures. But many of the same problems would still persist in that hypothetical lawsuit.
“Augusta National, the promoter of The Masters, has taken multiple actions to indicate itsalignment with the PGA Tour, thus seeding doubt among top professional golfers whether they would be banned from future Masters Tournaments,” according to an antitrust lawsuit filed by 11 LIV golfers on Wednesday against the PGA Tour. “As an initial matter, the links between the PGA Tour and Augusta National run deep. The actions by Augusta National indicate that the PGA Tour has used these channels to pressure Augusta National to do its bidding. For example, in February, 2022 Augusta National representatives threatened to disinvite players from The Masters if they joined LIV Golf.”It notes, among other things, that the Tour asked Augusta National officials to attend “an emergency meeting” of the player advisory council meeting in May, ahead of LIV Golf’s maiden tournament once the field was announced, “to discuss ramifications for players participating in LIV Golf.”
Only to admit that they didn't attend said meeting in the next sentence.... And this is for sure a crime against humanity:
It adds that Ridley declined a request for a meeting with LIV Golf CEO Greg Norman.
Because taking meetings with those doing the bidding of genocidal strongmen is now required by which controlling legal authority?
So, we still have those eleven players suing the Tour for its predatory business practices.... Say what?
Carlos Ortiz was one of the 11 LIV Golf players who filed an antitrust lawsuit against the PGA Tour at the start of the month, until he withdrew his name from the papers."At the end of the day, I don't want to have any problems with the PGA Tour,” he explained.“I'm happy where I am. I don't want to go back to the PGA Tour now. And that's why I withdrew from the lawsuit. I'm not against the PGA Tour. I wanted to play the playoffs, if possible.“When I realised that to play the tournaments they put me in a lawsuit, and with all the controversy that is going on, I got off, because I don’t want to sue the PGA Tour,” the 31-year-old explained.
And then there were ten.... Oh, really?
Pat Perez, one of the original 11 players from the Saudi-backed circuit to bring the suit againstthe tour, has dropped out, Sports Illustrated reported on Friday.Perez, 46, is a three-time winner on the PGA Tour and bolted for LIV in June. He made his debut in the circuit’s second tournament, outside Portland, Ore., and told SI on Friday that he joined the lawsuit out of loyalty to the other players, all of whom, including Perez, have been suspended by the tour since joining LIV.“I didn’t really think it through,’’ Perez told SI of joining the lawsuit. “I did it to back our guys.”“I have no ill feelings toward the PGA Tour or any of the players. I’m a LIV guy 100 percent. I’m going to play for them. But I don’t feel any need to go after the PGA Tour. They gave me a wonderful opportunity for 21 years. I’ve got nothing against them, no hard feelings toward anybody. I earned everything I got out there, don’t get me wrong.“I chose to leave and I’m not looking to come back. I’d like to maybe play the Champions Tour one day if that can work out and that’s why I have not given up my membership. But there is no benefit to doing this. I have an unbelievable deal with LIV and I’m behind them 100 percent.’’
Most important because it provides the rationale for using that photo once more. Hey, clicks, baby!
Who's Next - Because, yanno, We Won't Get Fooled Again.... So, in a Saturday conversation, one of my golf buddies noted that every player about whom rumors have swirled has, in fact, defected. That's not completely true (though close enough, for sure), but I did forget to note this best example to the contrary:
Will Rickie Fowler Be the Next PGA Tour Star to Defect to LIV Golf Series?The 33-year-old has not won on the PGA Tour since 2019 and has fallen to No. 173 in the Official World Golf Ranking
He seems too young and too competitively relevant for LIV, no? I'm shocked that he hasn't jumped, but I also understand that he flew to Delaware with Tiger for that meeting with the players, so perhaps he values that more highly.
Alan Shipnuck has been at the eye of the storm for months, and has this granular forecast for next Monday:
On Aug. 29, the day after the FedEx Cup concludes, LIV will announce seven new signees, including one long-rumored superstar. This is not a collection of old-timers playing out the string or unknowns plucked from second-tier international tours—all seven players are PGA Tour members who competed in last week’s FedEx St. Jude Championship, the first playoff event in the Tour’s flagship product, the FedEx Cup. All seven are expected to tee it up at the LIV event in Boston that begins on Sept. 2, triggering their ban from the PGA Tour. This will deeply impact another of the Tour’s marquee events, the Presidents Cup, which will begin three weeks later minus a heckuva lot of star power.
Gee, a long rumored superstar? Sounds like Cam Smith to this set of ears, but this raises an issue I've been pondering in these pages for some time now. It so happens that the eight automatic qualifiers for the International Team at the September Presidents Cup were just finalized:
Cameron Smith, Joaquin Niemann, Hideki Matsuyama, Mito Pereira, Joohyung Kim, Sungjae Im, Adam Scott and Corey Conners are the first eight players to make it into the International team.
Hideki is going as well, and could also be the LRS noted above, but that event seems about to be marginalized, even before we mention the rumors about Adam Scott. Most accounts have Cam leaving after the Prez Cup, though that's never made much sense to me, as it would keep him from playing in two events with small fields and $25 million purses, which is the whole point, right?
Picking Up The Pieces - So, that Tiger meeting? One point I've made repeatedly is that the steps the Tour would take to fend off the Saudi threat, beginning with the PIP program, would inevitably make the Tour a less interesting and more intractably elitist entity:
According to a source with direct knowledge of the meeting, Woods and the 20 top players he assembled discussed the formation of a tour-within-the-Tour: up to 18 no-cut tournaments featuring the top 60 players competing for $20 million purses. This basically would be two WGCs per month in the newly condensed January-August schedule. Such a structure would codify the schism between the Tour’s haves and have-mores, with lesser players consigned to lower-wattage tournaments for far less money. (One consolation that was floated at the recent Player Advisory Council meeting is fronting each of the 200 or so Tour members $500,000 per year, taken against their winnings.)
I've been trying to convince folks since Day One that this is a God-awful vision for our game:
Of course, this proposed slate of super-events sounds very much like what LIV has already created, with its 48-man, no-cut fields vying for $25 million purses. As word has leaked out among the players from both tours about what was discussed at Woods’s confab at the Hotel du Pont, there has been a certain amount of gloating among LIV loyalists that the Tour is stealing its blueprint. Says one LIV golfer, “The best part is the lower-tier guys [on Tour] don’t even know what is coming.” As for the lower-tier guys on LIV, some will now be bumped to the Asian Tour (which has been revitalized by a $400 million commitment of Saudi money), but there is a mechanism for some to play their way back onto LIV through the Asian Tour’s International Series.
Of course, they stole the model from the Brits, not that it's anything more profound than WGCs on steroids.... It's also inevitably less noxious under the Tour's umbrella, mostly because the Tour has in place the feeder system to allow new talent to ascend.
Though it quite obviously pierces the fiction that all Tour events are created equal, and is another in a long history of the Tour selling out its sponsors, at least those foolish enough to think their events would be attended by the cool kids.
But the stench of greed and entitlement is quite pervasive, and it's hard to see who will emerge unscathed from this mess.
But did someone mention entitlement?
Mean Girls - The mind of Patrick Reed must be a fascinating place, a malleable vortex in which the realities of the world are conveniently rearranged to award victimhood status to a man most of consider among the luckiest few.
Not content with cashing eight-figure checks, he seems to believe he inhabits a world in which scrutiny and criticism is proscribed:
The quickest way to make unsavory allegations disappear is probably not to file frivolous litigation. And yet, that is the hole into which Patrick Reed has dug himself.On August 16, Reed sued Golf Channel commentator Brandel Chamblee (and Golf Channel’s parent company) in a Texas federal court for what Reed alleges is defamation. (The Complaint is here.) Also embedded in the Complaint is Reed’s allegation that Chamblee, Golf Channel, and the PGA Tour conspired to eliminate LIV Golf from competition by smearing LIV, Reed, and his fellow Saudi-bankrolled game-growers.
Thin-skinned seems inadequate to the circumstances, though the irony is that this seems entirely consistent with the LIV Tour effort as well. While allegedly the effort is designed to make Saudi Arabia appear to be a "normal country", to this observer all it's accomplished is to provide a logic for revisiting the Kashoggi murder and providing a platform for the 9-11 families. Good work, Sharkie!
But Geoff has provided excerpts from the actual complaint, and it makes a pitiful human being seem even more despicable, which I never remotely considered possible. Shall we sample some?
First, were you making the case for Patrick's position in the game, could you do worse job of it than this:
I'd have gone with the Masters and that Captain America bit, but what do I know?
You might want to strap your eyes in place, otherwise the involuntary rolling might induce nausea:
They're just Living Under Par,™ do you have a problem with that, buddy?
Well, OK. Uh, where does that leave us?
Alright, look. To begin with, it’s nearly impossible for a public figure to win a defamation case — and that’s even when that public figure’s lawyer doesn’t live in Banana Land. The reason that it’s so hard for public figures to win defamation cases is because the Supreme Court requires public figures (unlike regular old people) to prove that a defendant committed defamation with “actual malice.” This is extremely difficult to prove — as it should be! The justification for this difficult standard is that free speech would be chilled if speakers could be sued for accidentally (but in good faith) saying something that turns out to be incorrect. Requiring proof of actual malice is good for public discussion. It also makes proving defamation tough for a public figure like Patrick Reed. Sorry.
Of course, here he's just playing with my emotions:
Theoretically — and we’re talking crazy here — let’s assume the defendants’ Motion to Dismiss is denied. What then?Pop the popcorn! Because then we get discovery, and everyone in this whole hilarious story is gonna be deposed. Can you imagine Patrick Reed in a deposition? Justine Reed in a deposition? Can you imagine bananas Larry Klayman deposing Brandel? It would be insane. The case probably won’t get to that point. But as a country badly divided and in need of healing, these are the depositions that America needs.
Yes it is, and I also look forward to resolving those control issues relating to the UseGolfFacts Twitter account....
So, he has no prospect of success, in fact he's got little chance to survive the inevitable Motion to Dismiss, and his complaint has re-aired dirty laundry such as his estrangement from his parents and his litany of cheating allegations, so the purpose in filing this complaint is? Anyone? Bueller?
What occurs to this observer is that the coddling of the players, the failure to disclose disciplinary actions and the burying of his varying malfeasances, has led Mr. Reed to the logical conclusion that he is entitled to a life without cognitive dissonance. I'm guessing there's a disciplinary file of some heft at the Global Home, and where is that whistle blower when America needs him/her/them most?
Monday should be very interesting....
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