The legal battle between LIV Golf and the PGA Tour is moving to the D.C. area, as a LIV-connected public affairs group and the PGA Tour fight over a third-party subpoena regarding communications with LIV’s backers in Saudi Arabia.
A central issue is how human rights and national security controversies in Saudi Arabia relate to the underlying claims.
There’s a lot to unpack but it begins late Wednesday, when the PGA Tour filed a 22-page brief in an Alexandria, Va., federal district court regarding McKenna Advisors LLC’s effort to quash a PGA Tour subpoena.
The dispute stems from the PGA Tour sending document and deposition subpoenas to McKenna, a nine-employee consulting company headquartered in the D.C. suburb of Arlington, Va.
The PGA Tour and McKenna dispute which materials must be shared as part of a third-party subpoena, a court order to a business or individual who is neither a plaintiff nor a defendant but who nonetheless possesses evidence or potential testimony relevant to the legal claims.
The PGA Tour contends McKenna has “provided extensive services” to LIV and its primary financial backer, the Public Investment Fund of the Kingdom of Saudi Area (PIF).
As depicted by the PGA Tour, McKenna played an instrumental role in LIV’s launch, including by “solicit[ing] Tour members” and by using “public relations and media campaigns” to “paint PIF and LIV in the best light—and the Tour in the worst light.” Further, McKenna staff allegedly “worked closely with LIV’s leadership” and “interfaced with players, broadcasters, sponsors and vendors, and managed LIV’s reputational issues.”
LIV and the PGA Tour assert various claims against the other. LIV portrays the PGA Tour as trying to prevent LIV from competing, while the PGA Tour insists LIV induced its golfers to breach their contracts. Both LIV and the PGA Tour have served third party subpoenas on different individuals and businesses with ties to golf and in different states.
The PGA Tour suggests its need to question McKenna officials is elevated by PIF and its governor, Yasir Al-Rumayyan, refusing to appear in New York City for questioning and share key materials. PIF and Al-Rumayyan recently asked the U.S. Court of Appeals for the Ninth Circuit to rule they need not participate in a U.S. litigation given their relationship to a foreign government—a legal argument California federal judge Beth Labson Freeman rejected. The Ninth Circuit could take many months to decide, which in turn could trigger a delay in the trial date, currently set for May 17, 2024.
Judge Freeman has suggested the PGA Tour can issue subpoenas to third parties who have communicated with PIF and Al-Rumayyan. The PGA Tour could then obtain some of what it seeks from PIF and Al-Rumayyan, such as emails, contract proposals, minutes of meetings or texts.
But in an April 12 court filing, McKenna painted a contrasting picture.
McKenna objects to the PGA Tour on several grounds, including that the subpoena arguably seeks privileged materials and is both excessive and overly burdensome. The company notes it “already agreed to produce its communications with LIV and certain other third parties related to player contracts, compensation or recruitment,” which it contends is an appropriate scope.
McKenna also says some of the requests “implicate important constitutional rights,” such as when the PGA Tour demands “all communications with any elected or unelected government officials or their staff.” Those inquiries, McKenna contends, interfere with “constitutionally protected First Amendment activity, including the right to petition the government.”
Still other requests, McKenna argues, are both “irrelevant” and “would be plainly inadmissible in any court,” with communications related to Saudi Arabia’s human rights record mentioned as an example. McKenna also objects to such search terms as “Khashoggi”, “Khasogi,” “Kashhogi” and “Kashoggi” (in reference to murdered Washington Post journalist Jamal Khashoggi) and “9/11,” “terror” and “September 11” (in reference to the terrorist attacks of Sept. 11, 2001, where 15 of the 19 hijackers were Saudi citizens).
Yet the PGA Tour insists these requests are relevant. It maintains “LIV’s limited success in signing broadcast or sponsorship deals or in locating vendors and tournament venues is not the result of any conduct by the Tour.” Instead, the PGA Tour asserts, “these third parties have their own reasons for not wanting to work with LIV, including because . . . they do not want to be associated with PIF and Saudi Arabia’s poor human rights and civil rights record.”
The Virginia case is before U.S. District Judge Rossie Alston Jr. and U.S. Magistrate Judge William Fitzpatrick. The PGA Tour on Wednesday separately petitioned that the case be transferred to California, where the main lawsuit is being heard.
