In a move with ramifications for the antitrust lawsuit headlined by Phil Mickelson and LIV Golf, the PGA Tour recently revoked the 2022-23 memberships for LIV golfers who had not already resigned.
Sports Illustrated reported on the development, which involved PGA Tour vice president Kirsten Burgess writing a letter to each golfer. She claimed the golfers’ “contractual commitments to LIV Golf” make it impracticable for them to satisfy “material obligations” of membership.
At first glance, revoking memberships seems inconsequential. The golfers are already suspended; with or without active memberships, they wouldn’t be able to play tour events.
But for at least four reasons, the move could alter the trajectory of the federal litigation, which is currently scheduled for a jury trial in San Jose beginning on Jan. 8, 2024, before Judge Beth Labson Freeman.
1. Membership revocation might help the tour defend its punishments as logically consistent. LIV attorneys and/or Freeman might have questioned why the tour would suspend the golfers but not revoke their memberships.
2. Revocation could be viewed as an additional “injury” suffered by LIV golfers. In their federal complaint, the golfers detail what they describe as “incalculable damage” resulting from their suspensions and what they portray as an unlawful boycott of their services. This alleged damage reflects “harm” to the golfers’ “goodwill, reputation, and brand,” as seen in the loss of endorsement deals and sponsorship opportunities. By further stigmatizing the golfers, revocation arguably exacerbates reputational damage.
3. LIV golfers now have an additional line of attack for asserting the tour failed to follow its own rules. Suspended golfers could maintain that even if their suspensions were defensible, revocation was unwarranted. As explained by Sportico, courts are generally deferential to sports leagues administration of their own rules. However, a court will question a league that appears arbitrary or inconsistent in its application of rules. Attorneys for the golfers could demand answers on when else members have seen their memberships revoked—and not revoked.
4. The litigation roadmap remains fluid. Although Taylor Gooch, Hudson Swafford and Matt Jones lost their petition for a temporary restraining order to play in the FedEx Cup, they or other golfers could seek a preliminary injunction allowing them to play in tour events. This possibility has been mentioned by Freeman, whose order denying the TRO was made “without prejudice”—meaning without barring—a possible motion for a preliminary injunction.
A preliminary injunction is similar to a TRO in that it would prevent the tour from denying LIV golfers a chance to play in tour events, but a preliminary injunction would last longer—potentially until the case ends. A hearing for a preliminary injunction would also draw from more testimony, facts and evidence.
Freeman would review a motion for a preliminary injunction in the same way she reviewed the motion for a temporary restraining order. She would consider whether the golfers establish that they’d suffer irreparable harm—meaning an injury that money can’t later remedy—if they’re denied a chance to play, as well as whether an injunction would advance the public’s interests and other considerations.
Gooch, Swafford and Jones’ bid for a TRO came up short largely because they failed to prove they were harmed. In her Aug. 10 order, Freeman stressed the golfers and their expert witness suggested LIV is superior to the Tour in terms of pay and other aspects of player compensation. That position undermined the golfers’ portrayal of the Tour as possessing monopolistic control over the market for elite golfers’ services.
But the litigation was transformed on Aug. 26 when LIV joined as a plaintiff. The impact of LIV’s addition was apparent in an amended complaint, wherein the Saudi-backed league suggested its seemingly generous terms to attract golfers was itself evidence of the Tour’s market control. Allegedly, LIV could only recruit golfers from the Tour by excessively paying them, an approach that is portrayed as unsustainable. Had LIV been a party to the TRO hearing, it might have assisted the golfers in addressing the hurdle of irreparable harm. If a preliminary injunction is sought, it could make its case then.
So despite the tour’s early success in court, there are still a lot of shots left to play.
(This story has updated the headline.)
