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PGA Tour Still Views LIV as Not 'Rational' as Court Showdown Looms

The Tour's response Monday was largely predictable, but interesting revelations are deep within its explanations why LIV players should not be allowed in the FedEx Cup playoffs.
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The PGA Tour response on Monday to the motion for a temporary restraining order by three LIV golfers was as expected.

A pointed argument was put forward explaining why the players, in this case Talor Gooch, Hudson Swafford and Matt Jones, are not entitled to relief by the courts and in fact are not even arguing in the correct venue or have the correct legal argument to move forward in the larger antitrust case, which was also filed last week by 11 former Tour players, headlined by Phil Mickelson.

As expected, the Tour believes that after waiting two months to file the TRO motion, the plaintiffs caused their own urgency.

The urgency is to play in the FedEx Cup playoffs, which start on Thursday at the FedEx St. Jude Championship at TPC Southwind in Memphis.

Putting the timing aside, the Tour makes numerous arguments about the plaintiffs’ knowledge of their suspensions pre- and post-jumping to LIV. The Tour also suggests that the LIV golfers knew their actions would lead to their suspensions, an action within its powers as a Tour.

It's abundantly clear from the Tour's perspective, while not admitting any wrongdoing, that they absolutely don’t want these players in Memphis this week. The Tour also believes that if it does eventually lose the antitrust lawsuit, the players in question can be compensated with monetary damages instead of granting them a TRO to play Tour events.

“Moreover, neither the equities nor the public interest tip in favor of TRO Plaintiffs, who willfully breached their contracts with the Tour for a pile of cash supplied by LIV," the response reads. "LIV is not a rational economic actor, competing fairly to start a golf tour. It is prepared to lose billions of dollars to leverage Plaintiffs and the sport of golf to “sportswash” the Saudi government’s deplorable reputation for human rights abuses. If Plaintiffs are allowed to breach their Tour contracts without consequence, the entire mutually beneficial structure of the Tour, an arrangement that has grown the sport and promoted the interests of golfers going back to Arnold Palmer and Jack Nicklaus, would collapse.

This argument of sportswashing and LIV, by extension the Public Investment Fund, the Sovereign Wealth Fund of Saudi Arabia, is an argument that PGA Tour commissioner Jay Monahan has never directly addressed, though he has addressed his concerns about the Sovereign Wealth Fund's investment into golf and detriment to the sport's ecosystem.

It's also an argument that will likely fall on deaf ears as Judge Beth Labson Freeman, who will hear arguments at 1 p.m. Pacific time on Tuesday in her San Jose, California, courtroom, will be more interested in the law and the application of the facts to the law and not the extraneous arguments about sportswashing, Saudi government abuses or the source of the funding.

Ultimately, the court will fall back on the legal basis for a temporary restraining order (TRO), which the Plaintiffs bear the burden of showing: (1) a substantial likelihood of success on the merits; (2) that they will be irreparably injured without relief; (3) that the threatened injury outweighs the harm a TRO would inflict on the Tour; and (4) that the TRO would serve the public interest.

“The Tour argument on the law is that the TRO Plaintiffs cannot satisfy any, let alone all, of the well-established requirements for the Court to enter such a drastic order,” the Tour concluded in their response motion. “Particularly under the Ninth Circuit’s heightened standard for mandatory injunctions.”

It was interesting to note the throwaway sentence used by the Tour about heightened standard for mandatory injunctions.

Which may answer the question of why was the lawsuit filed in California, or more generally the Federal Ninth Circuit, which includes Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon and Washington.

A "heightened standard" most likely means that the court is predisposed to granting the TRO motion for the plaintiffs, seeing that the harm to the defendant, in this case the Tour, is negligible.

Beyond the argument set forth by the Tour on why the TRO motion should not be granted, they also went after the legitimacy of the antitrust lawsuit itself. The Tour claimed that the 11 plaintiffs don’t have standing to bring an antitrust suit, basically claiming that the arguments by the plaintiffs don’t meet the criteria for an antitrust suit.

This will likely not be addressed in the hearing on Tuesday, but will be the basis of another court date down the road once the TRO motion is settled.

The Tour also argues it lacks monopoly power and that its regulations do not restrict competition, both are key points in the larger antitrust lawsuit.

Some interesting tidbits from the motion are that parts of the filing have been redacted.

It seems that the legal representation for LIV supplied the Tour attorneys with copies of the contracts between Gooch, Swafford and Jones, with the specific request that certain information in the response be filed under seal and redacted from public viewing.

The other interesting point is that in numerous places throughout the 26-page motion, the Tour considers LIV Golf a viable competitor using terms as "successful entrance" and "during its short existence, LIV has established itself as a competing golf tour."

With both sides submitting their motions, Judge Freeman will likely make her decision by the end of the day on Tuesday or early Wednesday, since the first tee shot in Memphis is 7:15 a.m. Central time on Thursday.