Judge Details LIV Golfers' Errors in First Round of Antitrust Fight




 

Two days after ruling for the PGA Tour in a court hearing, Judge Beth Labson Freeman issued a 14-page written order on Thursday formally denying the motion for a restraining order that would've allowed LIV golfers Talor Gooch, Hudson Swafford and Matt Jones to play in the FedEx Cup Playoffs. The order makes clear that the 11 golfers who sued last week face a challenging path in proving that the Tour violated antitrust law. (One of those golfers, Carlos Ortiz, has since dropped out of the suit.)

Freeman's order elaborates on why the three golfers failed to convince her that they'd suffer irreparable harm, meaning the kind of harm that money can't later remedy.

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Though golfers can't earn Official World Golf ranking points by playing in LIV Golf events, Freeman wrote LIV golfers aren't "barred from playing professional golf against the world's top players, from earning lucrative prizes in some of golf's highest-profile events, from earning sponsorships, or from building a reputation, brand, and fan following in elite golf." In fact, Freeman stressed, the golfers' own expert witness boasted of LIV offering "large upfront payments" as a means for LIV to compensate for the "loss of opportunities to earn ranking points [and] to earn entry into the Majors." From the judge's vantage point, the golfers "have not even shown that they have been harmed-let alone irreparably."

Freeman added that the golfers knew by joining LIV-a rival league-they were "virtually certain to be cut off from Tour play." She cited cases involving professional tennis players and rodeo contestants where courts declined to find irreparable harm when "a professional sports player is barred from playing in one professional sports league but is free to play professionally in a separate league." As the judge sees it, "the only thing" LIV golfers are barred from is "pursuing [prizes, endorsement opportunities, fan followings etc.] at PGA Tour events." They can still obtain those professional achievements by competing in LIV events.

During Tuesday's hearing, Freeman distinguished an athlete's opportunity to join one of two rival pro leagues, but not both leagues, from an athlete who is denied a chance to join the only major pro league. For example, consider an elite 19-year-old football player who could play in the NFL but who is denied eligibility because of the league's rule requiring that players be three years out of high school. That player can only advance his football development in college, where (other than NIL opportunities), he'll be denied pay. An elite golfer is in a different boat, Freeman reasoned, since the golfer can play for either the Tour or LIV.

Freeman also suggested the golfers' overarching legal theory doesn't add up. She noted the plaintiffs contend that LIV is essentially superior to the Tour, which makes it hard to simultaneously assert the Tour enjoys monopolistic control. Freeman noted how LIV golfers describe their league as offering "a refreshing new 'extremely fan-friendly' business that will lead to 'an improved broadcast output and entertainment experience' compared to the staid old golf world built by PGA TOUR." She bluntly asked, "If LIV Golf is elite golf's future, what do TRO Plaintiffs care about the dust-collecting trophies of a bygone era?"

Although Freeman cautioned that her temporary restraining order decision was based on the golfers failing to establish a lack of irreparable harm, she offered additional insights suggesting she has other doubts.

For example, the golfers contend the Tour breached their Tour membership rights by extending their suspensions while they had appealed the first round of suspensions. Freeman, however, concluded that, when "giving proper deference to the PGA Tour's interpretation and application of its disciplinary rules," the Tour's application of rules was "not unreasonable." She also noted that, though the golfers' antitrust contentions present "complex issues" that "are best resolved on a more developed record," she observed the Tour "has responded with preliminary evidence and argument potentially exposing fundamental flaws in Plaintiffs' claims."

The litigation could last several years, with numerous filings such as motions for a preliminary injunction, for dismissal and for summary judgment. Freeman explained in the hearing that, because of her busy docket, she is now scheduling trials for 2025. Antitrust cases, moreover, tend to last several years. They often raise complicated questions that require empirical findings and data studies. Consider that both Ed O'Bannon and Shawne Alston's antitrust cases against the NCAA lasted more than seven years. If that timeline tracks here, much more will be known about whether the Saudi-backed LIV has what it takes to compete with the Tour by the time the case ends.

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