On Tuesday, the PGA Tour denied the requests of members who sought to play in the LIV Golf’s London event on June 9-11. The move is the latest in an ongoing saga pitting the Tour and its commissioner, Jay Monahan, against LIV and its commissioner, Greg Norman, The denials also generate a concrete action that could be challenged in court and spark a lengthy legal fight that transforms golf’s labor market.
The denials, PGA Tour executive Tyler Dennis wrote, were made “in accordance with the PGA Tour Tournament regulations” and “in the best interest of the PGA Tour and its players.” The action follows weeks of public sparring involving Norman and Monahan.
In a statement, Norman blasted the Tour’s stance, saying the Tour “seems intent on denying professional golfers their right to play golf, unless it’s exclusively in a PGA Tour tournament.” He also called the denials “anti-golfer, anti-fan, and anti-competitive.” Norman further suggested the Tour is hypocritical in operating as a nonprofit with a mission to promote the common interests of golfers.
And after weeks of rumors, at least a few of those golfers have come out definitively as future LIV participants. During an on-camera argument with an official rules at the Wells Fargo Championship on May 4, Sergio Garcia: “I can’t wait to leave this tour,” and, “Just a couple more weeks until I don’t have to deal with [this] anymore. ” (The Tour later acknowledged that Garcia was right in challenging the ruling.) And after Norman said LIV had two former World No. 1 players signed up, Martin Kaymer admitted he was one of them. Kaymer, 37, was No. 1 for eight weeks in 2011 and is currently 195.
Phil Mickelson, who was for a long time the most enthusiastic supporter of the rival series, remains in a self-imposed timeout after quotes in which he brushed aside the human rights record of Saudi Arabia (the chief financial backer of LIV) in favor of “Leverage” over the Tour. He’s registered for next week’s PGA Championship and sought a release for LIV London, but when and where he’ll emerge remains a mystery.
When pressed on the issue of Saudi atrocities, including the murder of Washington Post reporter Jamal Khashoggi and the public beheading of 81 people in March, Norman said, “We all make mistakes,” and that “I heard about it and I just kept moving on.” The comments went viral, leaving LIV backpedaling later in the day and players to once again consider what they’re signing up for if they join LIV.
Those Tour members who do move forward with Norman and friends constitute one of the parties that may take legal action, although there are several possibilities, each with its own set of defenses.
Denied players have standing to sue the Tour and demand temporary restraining orders to allow them to play. One likely claim would fall under antitrust law. The Tour would be portrayed as a “monopsony” in that it has dominance over the industry and has now prevented elite golfers from selling their services to a similar and potentially competitive buyer (ie, LIV).
The Tour’s affiliated businesses, such as sponsors and partner courses and tournaments, could be labeled conspirators. To that end, the players might urge the US Justice Department to take a close look at the Tour’s business practices. In recent years, the Justice Department has aggressively sought to prevent employers from constraining workers’ economic opportunities.
Antitrust claims are strengthened if the challenged restraint is shown to harm consumers, including by raising prices or diminishing choices. Here, players could insist that golf fans are deprived of opportunities to watch other tournaments that feature elite players in a distinct format (three days of team play vs. four days of individual stroke play).
Players could further maintain that the Tour’s interpretation of its own rules is “arbitrary and capricious,” the legal standard commonly applied to a private organization’s application of rules. Players could maintain the Tour has ordinarily granted releases and its departure from that practice reflects non-meritorious reasons.
Players also can underscore the nature of their contractual relationship to the Tour. They are independent contractors. Players in the major sports leagues, in contrast, are employees and protected by unions, who negotiate CBAs on their behalf. Courts and lawmakers have begun to scrutinize restrictions placed on independent contractors more strictly.
LIV, meanwhile, may bring its own claims against the Tour.
The rival tour could sue under antitrust law and depict the Tour as using monopoly power to prevent competition. Like the players, LIV could insist that golf fans suffer a diminished market for their fandom — and dollars — when the Tour blocks players from playing elsewhere. LIV might also assert that the Tour has interfered with prospective contractual relations between LIV and players, who want to bargain with LIV but run the risk of Tour penalty, including possible suspension or even loss of membership.
The Tour’s willingness to deny requests in spite of the risk of litigation reflects its confidence in rebutting any claims. The most persuasive defense is that players, as Tour members, contractually agree to follow Tour rules and authorize the Tour to enforce its rules.
One rule in the player handbook explicitly states that “by participating in cosponsored, coordinated or approved golf tournaments, acknowledges the right and authority of the PGA Tour Policy Board [and] the Commissioner to (i) fine and suspend the member from tournament play, and / or (ii) fine and permanently bar the member from play in PGA Tour cosponsored, approved or coordinated tournaments for violation of the tournament regulations. ” This language accords the Tour substantial discretion. Other provisions similarly extend authority to the Tour to prohibit conduct detrimental to the league.
Courts are also deferential to decision-making by pro leagues and, more generally, private associations on issues of membership and application of internal rules. The tour denying requests does not raise discrimination concerns (for example, there’s no indication the denials are motivated by race or ethnicity) and players, who are adults, contractually assented to Tour discretion. The denials are also arguably reasonable since SGL’s London event is scheduled for the same week as the RBC Canadian Open.
The Tour could further parry claims by referring to industry data. The Tour would describe the global marketplace for elite golfers as competitive, with affiliated tours already being held across the globe. Both golfers and fans, the Tour could insist, enjoy choice irrespective of LIV. The Tour might also warn that LIV could fragment the golf industry, eroding the Tour’s long-standing order — which golf fans value — and putting individual PGA tournaments at risk of being canceled.
As to deflecting claims by LIV, the Tour could point out that nothing stops a player from quitting the Tour and signing with LIV, and stress that a sports league denying its players from playing in a rival league is hardly unusual. It is a common practice that courts have found lawful. Nearly 50 years ago, the US Tennis Association defeated an antitrust lawsuit after it denied players the opportunity to play in a rival league. The court ruled the ban enhanced rather than impaired competition by promoting an orderly schedule of tournaments — a point the Tour could make.
Lastly, while Norman portrays the Tour as anti-competitive, he has acknowledged in recent interviews that LIV could also minimize opportunities for players and consumers. Although he’s defined 2022 and 2023 as “baiter” years to draw players into the LIV fold (meaning players can play sporadically if they choose), he’s implied that in 2024 they’ll have to sign a contract obliging them to the entire LIV schedule.
Likewise, the LIV format envisions permanent teams that will in part be owned by the players and potentially feature 18 or more events a year. Presumably LIV would allow its players to appear on other tours during its off weeks, but PGA Tour attorneys could insist this format undercut LIV’s central thesis, since LIV’s plans would eventually lock players in for a significant number of weeks per year.