A court hearing on Tuesday will mark the first U.S. legal test of LIV Golf’s emergence and the PGA Tour’s efforts to counter its new rival.
Talor Gooch, Hudson Swafford and Matt Jones are three of the 11 golfers who sued the PGA Tour last Wednesday, arguing the Tour’s nearly two-year suspensions and $100,000 fines of LIV golfers violate federal antitrust law. The Tour is portrayed as an illegal monopsony, using unrivaled control over elite golfers to pay them less and to exclude would-be competitors. Gooch, Swafford and Jones have separately brought a 35-page motion for a temporary restraining order (TRO). On Monday, attorneys for the Tour filed a 32-page brief opposing the motion. The Tour accuses the trio of “fabricating” a legal emergency by waiting two months to sue, during which they “accepted millions from LIV.”
If granted, the TRO would compel the Tour to let the golfers play in the FedEx Cup Playoffs, a three-tournament competition that begins this week with the FedEx St. Jude Championship at TPC Southwind in Memphis. The hearing will take place on Tuesday at 1 p.m. PT before San Jose federal judge Beth Lasbon Freeman.
It is usually difficult for a party to obtain a TRO; the Justice Department has described TROs as “extraordinary remedies” where the petitioning party “must satisfy a heavy burden.” The three golfers must convince Judge Freeman they’d suffer irreparable harm—meaning an injury that money can’t later remedy—if they’re denied a chance to play in the FedEx Cup. They must also establish a likelihood to succeed on the merits and convince Freeman that an injunction would advance the public’s interests. That’s a lot to show and, with the FedEx Cup starting this week, Freeman has a limited window to weigh the arguments.
Breaking Down the Three LIV Golfers’ Arguments
The trio, whose lead attorney is antitrust expert Rachel Brass of Gibson Dunn & Crutcher, acknowledges they agreed to follow Tour regulations as part of their membership. Those regulations, the motion admits, “expressly give [commissioner Jay Monahan] the power to interpret and apply the regulations as he sees fit [and] discretionary authority over player discipline.” But Gooch, Swafford and Jones claim the disciplinary process forbids arbitrary punishments, requires notice of both disciplinary inquiry and disciplinary action and safeguards the opportunity to appeal. An appeal ordinarily postpones the imposition of a suspension until the appeal is decided.
Here, the three golfers say, their suspensions were abruptly extended from March 31, 2023, to March 31, 2024 “even though at that time they were already suspended by the Tour.” They claim the Tour’s “rolling suspension scheme . . . operates as an effective career ban,” and that the Tour didn’t follow its own rules by imposing suspensions pending appeals.
The trio also asserts the Tour has inconsistently applied its own rules. “Never before,” the motion charges, “has the Tour imposed lengthy or lifetime bans for playing in competing events.” Instead, the Tour is described as “routinely granting releases for golfers to play with promoters” that aren’t viewed “as a competitive threat.” This alleged dynamic poses antitrust problems, since Tour members are independent contractors and—unlike NFL, NBA, MLB and NHL players—they haven’t collectively bargained eligibility rules with their league. The motion cites age eligibility cases in the NBA (Spencer Haywood v. NBA) and NWSL (Olivia Moultrie v. NWSL) to argue that anti-competitive restrictions on labor who are outside a bargaining relationship unreasonably restrain trade.
The golfers also maintain the Tour impedes competition by serving as “the principal avenue for professional golfers to qualify for the Majors.” No other golf league “offers the Tour’s combination of large tournament purses, opportunities to earn Official World Golf Ranking points, public exposure and endorsement deal prospects.” The golfers cite Ed O’Bannon and Shawne Alston’s antitrust cases to contend the Tour’s unrivaled control over elite pro golf is analogous to the NCAA’s unrivaled control over elite college football and basketball.
Gooch, Swafford and Jones insist the Tour “artificially depresses player wages,” a position they try to corroborate by asserting “in response to entry by LIV Golf, the Tour announced increases in player pay totaling over $235 million.” Once the Tour faces more competition, the golfers tell it, it becomes more willing to pay market-based compensation. The trio depicts LIV as more egalitarian, paying every participating golfer instead of limiting pay to those who make a tournament cut.
The golfers identify several categories of harm they’d suffer if denied a chance to play in the FedEx Cup. They’d be denied opportunities to qualify for the 2023 Majors and to accumulate points to qualify for other “premier tournaments.” Gooch, Swafford and Jones also cite loss of income earning opportunities and “irreparable losses to goodwill, reputation and brand.” The relative brevity of a pro athlete’s career is also relevant, the trio contends, since “even a short-term player suspension” inflicts harm. To that end, they cite Haywood’s NBA case where a court found an ineligible player could “suffer irreparable injury” in the form of deteriorating “physical condition, skill and coordination” caused by the absence “of high-level competition.” The golfers further insist that consumers and golf fans are better off by seeing a more competitive field play in the FedEx Cup.
To boost their case, the trio highlights Gilder v. PGA Tour, where golfers successfully obtained a TRO against a Tour rule that had banned clubs with U-shaped grooves. The U.S. Court of Appeals for the Ninth Circuit found that golfers losing their choice of club could negatively impact their play and, in turn, cause those golfers to suffer irreparable harm since they’d become less likely to qualify for tournaments. Gooch, Swafford and Jones argue suspensions are even more detrimental since they “prevent plaintiffs from all play.”
Breaking Down the PGA Tour’s Rebuttals
The Tour has retained a high-profile legal team, including Elliot Peters, a former federal prosecutor who successfully defended Lance Armstrong against False Claims Act allegations, and a trio of seasoned Skadden Arps attorneys: Patrick Fitzgerald, who in the 2000s successfully prosecuted Scooter Libby (Vice President Dick Cheney’s chief of staff) in the Plame Affair, and Anthony Dreyer and Karen Lent, both of whom have long represented the major pro leagues in IP and antitrust cases.
The Tour’s brief stresses that Gooch, Swafford and Jones were suspended on June 9 and then “sat” on going to court until right before the FedEx Cup began. The Tour therefore portrays the golfers as self-engineering an unnecessary emergency for Judge Freeman and the court system to resolve.
The Tour also emphasizes that the golfers knowingly breached their contractual obligations to the Tour to “accept multi-million-dollar payouts” that the Tour denounces as “a pile of cash supplied by LIV.” The Tour then questions why there is a crisis when four of the other 11 plaintiff golfers are similarly qualified to play in the FedEx Cup but, unlike Gooch, Swafford and Jones, don’t seek a TRO.
The Tour further insists that the American public’s interests in human rights weigh against granting a TRO. “LIV,” the brief charges, “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.”
In addition, the Tour disputes the golfers’ procedure-based claim that the Tour breached its own rules. The Tour stresses that its regulations “empower the Commissioner to immediately suspend serial offenders like the TRO plaintiffs, and to maintain those suspensions for their ongoing violations during their appeals.” As the Tour sees it, the three golfers voluntarily agreed to play by Tour rules, which are neither new nor hidden and which explicitly furnish Monahan with discretion—including the right to immediately suspend a member’s playing privileges until the disciplinary process concludes.
The Tour also turns the independent contractor argument on the golfers, noting that the golfers can quit the Tour at any time, without violating a non-compete or other clause; several other golfers, including Dustin Johnson and Sergio Garcia, did just that. The Tour underscores that Gooch, Swafford and Jones elected, on their own, to join a rival league in exchange for more money. The Tour also cites case law where courts have permitted sports leagues, including non-unionized ones like the U.S. Tennis Association, to deny their players chances to play in other leagues.
Similarly, the Tour uses LIV’s promises of success against the notion that the Tour can be described as a monopsony. “In just its first year,” the brief exclaims, “LIV has established a tour that competes directly with the PGA TOUR, has more financial resources than the TOUR, and offers more guaranteed money to players than the TOUR.” This brings up the question, if the Tour truly dominates the market of elite golfers, why are golfers paid more and guaranteed pay for play in LIV?
Lastly, the Tour dismisses the claims of irreparable harm as ignoring the requirement that such harm not be fixable by money. The Tour says the alleged harms are “fundamentally economic” since they concern earnings, endorsements and other money-related topics. The Tour also distinguishes TRO cases where the athlete can’t play to note “plaintiffs themselves argue that they may still compete at an elite level at LIV Golf tournaments.”
Judge Freeman could signal at the end of the hearing which way she will decide. Even if she keeps the parties guessing, she’ll probably issue a written order within several days. The loser could attempt to appeal her ruling to the Ninth Circuit, but appellate courts usually refuse to hear what are called “interlocutory appeals,” meaning appeals before a case is decided on the merits. Odds are Freeman will have the last word on whether Gooch, Swafford and Jones play in the FedEx Cup.