In the Battle Between
PGA Tour and LIV,
Shit Just Got Real
“‘It is said that the Hornburg
has never fallen to assault,’ said Théoden;
‘but now my heart is doubtful. The world changes,
and all that once was strong now proves unsure.’"
-The Lord of the Rings, The Two Towers: Book Three
The smoking mountain hulking over professional golf has finally erupted. On August 3, 11 pro golfers — formerly of the PGA Tour, now of the Saudi-backed LIV Golf circuit — sued the PGA Tour in a California federal court for alleged violations of antitrust law. (The Complaint is available here.) In a nutshell, the 11 plaintiffs — among them Phil Mickelson, Bryson DeChambeau, Abraham Ancer, and Ian Poulter — claim that the PGA Tour’s responses to LIV’s ascendance amount to illegally anticompetitive behavior. In so doing, the plaintiffs allege that the Tour has cost them lost earnings and threatens to cost them future playing opportunities. For a sports circuit that has seen no serious competition in its more than half-century history, the culmination represented by Mickelson v. PGA Tour is tectonic. “The world changes, and all that once was strong now proves unsure.”
I am not an antitrust lawyer. But as the Mickelson lawsuit moves forward, I will do my best to make Lying Four a reliable home for observations of medium-grade legal substance, packaged for non-lawyers. When the lawsuit presents questions turning sharply on antitrust expertise (as it doubtlessly will), I will do my best to seek out that expertise and present it in that same packaging. Lying Four’s goal, as always, will be to tell this story thoroughly and independently.
For now, a quick rundown of the moment’s landscape.
. . .
What is this lawsuit about?
By now, the PGA Tour’s response to the LIV Golf insurgence has been well documented. Through a combination of threatened (and ultimately realized) bans, alliances, and pressure campaigns, the PGA Tour has attempted to deter everyone in the pro golf ecosystem from associating with the Saudi-backed upstart. That the Tour’s campaign raised obvious antitrust questions also is not a new suggestion. And that’s where this lawsuit’s rubber meets its road: whether the Tour’s efforts to nip LIV in the bud violated federal and California state antitrust laws (which, briefly speaking, prohibit entities with monopoly power from engaging in purely anticompetitive behavior designed to prevent competition). It is one thing for a business to compete against another. It is even one thing for a business to out-compete another. But it is quite another for a business to suppress competition. That’s antitrust.
What is a Complaint, and what does the Mickelson one say?
A Complaint is a document that a plaintiff (or group of plaintiffs) files with a court to begin a lawsuit. A Complaint alleges a violation of the plaintiff’s legal rights, the (alleged) facts behind that violation, and the type of relief that the plaintiff wants the court to award (for example, money damages). A Complaint is not evidence; it is only a set of allegations. In other words, just because a Complaint says something is true doesn’t make it true.
The Federal Rules of Civil Procedure (which establish the process by which litigation moves forward in federal court) require only that a Complaint contain “a short and plain statement of the claim showing that the [plaintiff] is entitled to relief.” It doesn’t have to be anything fancy or lengthy. But the Mickelson Complaint is an unusually lengthy one: 105 pages, to be exact. That doesn’t necessarily mean that it’s any better or more reliable than a typical Complaint, but it’s a signal to the PGA Tour that the players feel like they have a lot of ammunition to use.
A good Complaint tells a story, and the Mickelson one delivers. It’s effectively Twenty-First Century pro golf’s Ninety-Five Theses: an exhaustive account of the PGA Tour’s history, its resistance to evolution, the intransigence that its monopoly position afforded it, and the vulnerability that intransigence created. The Complaint goes on to allege that when LIV stepped into the vacuum left by that vulnerability, the PGA Tour lashed out through a series of anticompetitive, illegal behaviors. Most of the facts alleged by the Complaint were matters of public record long before the lawsuit began. For anyone who has felt frustrated by the Tour’s resistance to change over the past 20 years or more, the Complaint tells a familiar tale.
So, what now?
Usually, the opening stages of civil litigation are pretty dull. Most of the time, a defendant has 21 days to respond to a Complaint’s allegations (through a document called an Answer). And after that, there are a few other pre-discovery bumps in the road that aren’t very exciting.
In Mickelson, though, three of the plaintiffs — Talor Gooch, Hudson Swafford, and Matt Jones — have filed a Motion for Temporary Restraining Order. (The Mickelson TRO motion is available here.) So the opening moments of this case will be exciting.
What is a motion for a temporary restraining order?
Imagine that you own a golf course. Now, imagine that one day a shirtless man rides up to your clubhouse on a bulldozer and says that he will begin renovating your golf course next Tuesday. You explain to the shirtless man that you don’t know who he is, that you like your golf course the way it is, and that you don’t want him to renovate your golf course. He tells you that’s too bad, and that he’ll be back with no shirt and a bulldozer next Tuesday. Well, obviously you need to sue him. But lawsuits can take years to get from start to finish — and this shirtless shaper will be back with his bulldozer long before then. That means you need something quicker than what a typical lawsuit can give you. So what you’d do is to file a Complaint, and in very short order (perhaps even at the same time you file the Complaint), you’d also file a motion (a request) for the court to issue a temporary restraining order — which is an order commanding the defendant not to go forward with the behavior that the plaintiff alleges is illegal. A temporary restraining order is designed to preserve the status quo, which preserves a court’s ability to reach a meaningful decision.
In order to issue a temporary restraining order, a plaintiff must convince a judge that several things are true — but the two most important things are (1.) that the plaintiff is likely to succeed in the lawsuit, and (2.) that, without a temporary restraining order, the plaintiff will suffer an “irreparable” injury (that is, an injury that cannot be fixed by awarding damages at the end of the case). In the Mickelson case, the three golfers claim that they need a temporary restraining order to participate in the FedEx Cup Playoffs, which begin on August 11. Without the restraining order, the three golfers say they will miss out on PGA Tour status for the 2022-23 season, as well as exemptions into the 2023 majors and a slew of Official World Golf Rankings points.
A Twitter account called @LIVGolfLawsuit has shared some insightful observations about the case already, and it reports that the judge will consider the three golfers’ request in court on Tuesday, August 9.
Who are the lawyers involved?
Mickelson is represented by William Roppolo, who works for a well known and well regarded international law firm called Baker McKenzie. The remaining 10 players are represented by a law firm called Gibson Dunn, which — and this cannot be stressed enough — is a seriously heavy-hitting law firm. This is not a group of ragtag lawyers whose faces are on the back of a phone book. This is a well heeled, serious legal team.
According to a Twitter account called @LIVLaffGolf, the PGA Tour will be represented by a San Francisco-based law firm called Keker, Van Nest & Peters. Keker is a relatively small law firm, but as with the plaintiffs’ firms, it is highly regarded. Southerners who followed the Dickie Scruggs prosecution in the late 2000s will remember John Keker as Scruggs’ attorney.
What happens next?
The court’s hearing on the Motion for Temporary Restraining Order (which you might see referred to as a “TRO hearing”) is apparently scheduled for August 9. Presumably, the judge will issue a decision either that day or the next, so that the three players will know by August 11 whether they can play the opening event of the FedEx Cup Playoffs.
The judge’s ruling on that request won’t necessarily indicate which side will win the entire case. But generally speaking, the winning side of that ruling will feel very encouraged about the judge’s first impression.
Who’s gonna win?
Jesus, who knows? Nobody knows who’s gonna win after a Complaint is filed! Trying to predict that would be like guessing the result of a football game after the kickoff.
Having said that, I found the plaintiffs’ Complaint extremely compelling. The point I found most convincing was that the Tour’s bans had no legitimate, pro-competitive purpose. As the Complaint explained, banning top players from the PGA Tour would necessarily injure the Tour itself by watering down its week-to-week strengths of field. Why would the Tour injure itself (inherently a move that does not support its competitive position), except to injure LIV in the process? I suppose the Tour could argue that the LIV players acquired a Saudi taint, and that banning them was necessary to prevent its product from being damaged by association; but if that were true, then why did the Tour allow these same players to compete repeatedly in the European Tour’s Saudi International event? And if the PGA Tour were concerned with taking on the taint of oppressive regimes notorious for violating human rights, then why did it host an annual event in China for nearly 15 years? The notion that banning the LIV players might have had some pro-competitive justification is difficult to imagine.
Intuitive or not, there’s no way to tell who will win. But the Mickelson Complaint makes clear that this is a serious case.
. . .
You might also enjoy reading…