An Early Win, but
the Tour is Still a Long
Way from the Finish Line
After months of taking fire, the PGA Tour has counterpunched.
After hearing arguments for more than two hours on August 9, District Judge Beth Labson Freeman denied three players’ last-minute request for a court order that would have allowed them to play the FedEx Cup Playoffs. When the FedEx St. Jude Championship tees off in sweltering Memphis on August 11, the only hot wind on the faces of Talor Gooch, Matt Jones, and Hudson Swafford will be the one coming out of LIV commissioner Greg Norman’s mouth.
This was a crucial victory for the Tour. But it also was a fairly narrow one.
Temporary restraining orders, like the one that three plaintiffs requested in Mickelson v. PGA Tour, are frequently referred to by courts as “extraordinary” orders that are rarely granted. In most cases, no party ever requests a TRO. When a plaintiff does request a TRO, the burden of proof is high. The practical result of all this is, even in the uncommon cases where a plaintiff seeks a TRO, judges usually side with defendants and deny the request. In that regard, Judge Freeman’s decision in favor of the PGA Tour was unremarkable.
Even so, a ruling on a TRO motion is a rare early window into a judge’s impression of a case. Whichever party wins such a battle — even defendants, who usually come out on top — always walks away feeling better about their case than they did beforehand. The PGA Tour justifiably left the TRO hearing feeling a gust of wind in its sails. A loss might have signaled impending disaster. Defeating the plaintiffs’ TRO motion is akin to a first-round knockdown in a boxing match: a long way from victory, but a hell of a start.
. . .
But Judge Freeman’s ruling left both sides with reasons to feel uncertain about the case’s ultimate outcome.
Principally, Judge Freeman’s ruling did not implicate the merits of the LIV players’ case — which is to say that, at least technically, it doesn’t suggest one way or another whether the players are likely to win or lose. Whenever a plaintiff asks for a TRO, it must do more than merely show that it is likely to win the case; the plaintiff also must show that the impending injury is “irreparable,” which generally means that the injury cannot be fixed at the end of the case through an award of money damages. This, in Judge Freeman’s view, is where the LIV players’ TRO request fell apart. As Judge Freeman saw it, the full amount needed to compensate the LIV players (if they win the case) can be calculated — and the proof of that is that the players calculated the amount of money they’d need to leave the PGA Tour and join LIV (i.e., when they negotiated and signed their LIV contracts). LIV’s lawyers undoubtedly comforted their clients after the hearing by reminding them that this outcome’s blast radius was limited to the TRO request alone, and doesn’t affect the plaintiffs’ chances moving forward.
On the other hand, Judge Freeman repeatedly implied that she sees holes in the LIV players’ case — and that should be cause for concern. For one, Judge Freeman said (per No Laying Up) that she sees “significant evidence that LIV has not been prevented from entering the market.” That’s a big problem for LIV, because showing that a company has the power to exclude competition is one of the main ways plaintiffs prove the existence of a monopoly. If the LIV plaintiffs can’t prove that the PGA Tour is a monopoly, then one of its biggest claims (namely, that the PGA Tour violated Section 2 of the Sherman Act) falls apart. To be clear, the plaintiffs also claim that the PGA Tour violated Section 1 of the Sherman Act — and that claim doesn’t require proof of a monopoly. So if Judge Freeman remains unpersuaded that LIV hasn’t been prevented from entering the market, that doesn’t necessarily dismember the LIV players’ entire case — but it would be a significant blow.
It’s an interesting problem that could lurk, even subliminally, in the background of the entire case: i.e., is LIV so uniquely well resourced that it was immune from anticompetitive behavior? That backdrop isn’t going away.
Even with these reasons for optimism, though, the PGA Tour has plenty to worry about. Judge Freeman (per Twitter’s @LIVGolfLawsuit) pressed the Tour on Commissioner Jay Monahan’s power to ban players arbitrarily — an apparent reference to the LIV players’ claim that the Tour’s suspensions deprived them of fair procedure. “That’s where your regs fall apart,” Judge Freeman said (again, according to @LIVGolfLawsuit). To this point, I’d seen that part of the plaintiffs’ case as essentially a throwaway claim. It’s possible that Judge Freeman sees more.
If the LIV players and the Tour haven’t discussed settlement possibilities already, Judge Freeman gave both sides plenty of reason to begin immediately.
. . .
The next stages of the Mickelson case will be less exciting than the August 9 hearing. The two sides’ lawyers will work with the judge to plan a schedule for the case (Judge Freeman indicated a tentative September 2023 trial date; it’s common for an initial trial date to be pushed back, though, so don’t buy your plane tickets yet). The two sides also will try to agree on the ground rules for discovery (discovery is the process through which one side seeks evidence from the other side — for example, through depositions and requests for case-related documents). The depositions probably will offer tremendous #content. Imagine Pat Perez in a deposition, and you’ll know what I mean.
Private settlement discussions are also likely to take place. We won’t hear anything official about those unless an agreement emerges.
In the meantime, both sides can catch their breath — and Pat Perez can get fitted for a suit.
. . .
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