Only the Lawyers Win If LIV Golf vs. PGA Tour Continues, So Why Not Drop It?
The dust has settled on the first skirmish between LIV Golf and with the PGA Tour, with the Tour taking the first battle over a week ago.
The battlefield was a courtroom in San Jose, California. Federal District Court Judge Beth Labson Freeman listened to two hours of arguments by lawyers from the plaintiffs, Talor Gooch, Hudson Swafford and Matt Jones, and defendants, the PGA Tour, on a motion for a temporary restraining order (TRO). It was clear early in the hearing that the judge was skeptical, and the TRO would have little chance for success.
Ultimately the judge ruled that missing the FedEx Playoffs would not cause the three Tour pros irreparable harm, which needed to be shown, and they could not play in the playoff events.
The 14-page decision outlined the court's position, hanging its legal hat on one of the four factors that needed to be satisfied—irreparable harm—and not delving into the antitrust issue, per se.
“Since the Court finds that TRO Plaintiffs have failed to show irreparable harm, the Court does not need to reach the issue of whether TRO Plaintiffs have shown a likelihood of success on the merits,” wrote Judge Freeman in addressing the antitrust issue.
With the immediate issue solved, the next would likely be a motion for a preliminary injunction, which would lift the suspensions imposed by the PGA Tour on those players that are still PGA Tour members and allow them to play, if they otherwise qualify.
“The standard for issuing a temporary restraining order is identical to the standards for issuing a preliminary injunction,” Judge Freeman wrote in her decision. “An injunction is a matter of equitable discretion and is an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”
Which ultimately means that the plaintiffs must again try to climb the irreparable harm hill, with no new information and likely a lesser case of harm, due to the benefits of finishing in the top 30 of the FedEx Cup playoffs no longer at issue. It’s likely that the plaintiffs won’t pursue a preliminary injunction and will focus solely on getting ready for its antitrust trial that would begin Jan. 8, 2024. (Judge Freeman set dates Thursday, including a summary judgment date of July 23, 2023.)
If a motion for preliminary injunction is defeated as the TRO was, or the plaintiffs decide not to file a motion at all, than the big question is: Why proceed?
Let’s first understand the cost of approximately a year of litigation. In the case of Optronic Techs, Inc v Ningbo Sunny Elec Co, Ltd, in the Northern District of California, decided in April 2020, the antitrust case cost $13.7 million dollars (plaintiffs $4.7 million and defendants $9 million) according to Americas Antitrust Review 2022.
While both LIV Golf, which is funded by the Private Investment Fund of Saudi Arabia, and the PGA Tour have the money, it doesn’t mean it should be tossed out the window.
It’s clear why the Tour must fund its defense, but what would LIV Golf accomplish with a win in 2024?
Ultimately LIV wants free agency for its players, but why? With 14 events in a new schedule starting in 2023 and the possibility for its better players to compete in the four majors, that would be 18 events.
Even with a win and Judge Freeman granting these players access to the PGA Tour, the Tour is still a membership organization and with that, the organization can still control and manage itself as necessary.
So, would the court rule how the Tour should operate? That’s doubtful. Does it provide for players to qualify for events through a different formula than other members? Again, doubtful.
So, how do players that have been granted access to the PGA Tour qualify to play on the Tour?
Both Dustin Johnson and Phil Mickelson have won 20 events to be lifetime members, but Johnson hasn’t played the requisite 15 years as required by the rules. Also, Johnson resigned his membership in June (though he did earn a five-year exemption by winning the 2020 Masters).
For Mickelson, he seemingly could play, but does he really want to? Every player and PGA Tour official would shun him on the course, in the locker room and in player dining.
Is this what millions of dollars would be spent for, to allow Mickelson to eat around a group of players that can’t stand his guts?
Many of these players decided when they took the money to join LIV that their chances of playing the PGA Tour would most likely be over.
So, if they won the antitrust suit and if the judge forced the PGA Tour to allow these players to return and if they met the membership requirements and if the courts didn’t allow the Tour to somehow remedy their monopolistic behavior?
Then these players, who have not played in a regular PGA Tour event for over a year, may get a chance to play on Tour in early 2024.
It just seems like a large waste of time and effort, as some of the players that jumped to LIV understand they made a choice and no longer want to be involved with the Tour by relinquishing their memberships.
Even Carlos Ortiz, who was a party to the lawsuit, decided to have his name dropped as one of the parties suing the Tour after the TRO decision.
It seems clear that while neither side will win if this case continues to progress through the courts, the lawyers that continue to rack up hundreds of billable hours will win just by the sheer size of the task at hand.
It’s time for cooler heads to prevail with both sides sitting down and discussing some type of settlement, since nothing worthwhile will come out of a trial and verdict.
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