Golf fans accustomed to tracking birdies and bogeys by their favorite players are now witnessing a new form of competition in professional golf: the off-the-course legal battle between the PGA Tour, LIV Golf and pro golfers who recently initiated an antitrust lawsuit to challenge rules and regulations that they deem to violate the law.

After the first week of the litigation, the PGA Tour decisively won the first legal battle. The judge's opinion casts doubt on the plaintiffs' claims, and puts the PGA Tour in a strong position to defeat the lawsuit as the legal process plays out.

On Aug. 9, in the case entitled Mickelson, et al. v. PGA Tour, Judge Beth Labson Freeman of the U.S. District Court in the Northern District of California issued an oral ruling in an expedited hearing that denied the motion of three players (Talor Gooch, Matt Jones, and Hudson Swafford) for a temporary restraining order (TRO) to require the PGA Tour to allow them to play in the FedEx Cup playoffs. In ruling in favor of the tour, she determined that the plaintiffs (a legal term denoting the individuals who brought the suit) could not show they would be irreparably harmed if they were not permitted to play in the first playoff event, the past week's FedEx St. Jude Championship in Memphis, Tennessee.

On Aug. 11, Labson Freeman issued a 14-page written opinion explaining her bench ruling. The written opinion is a scorcher. It pours cold water on the main aspect of the lawsuit.

Besides denying the TRO, the judge opined on her views of the respective arguments of the parties. Though the determination of whether the PGA Tour violated antitrust laws – the merits of the claims brought by the players – was not addressed definitively, the judge's written order provides insight into how the case might play out.

The key parts of the Aug. 11 opinion stated:

  • On plaintiffs' breach-of-contract claims (based on the PGA Tour's rules), the judge indicated that she agreed with the tour that there was no breach of any contract;
  • On plaintiffs' antitrust claims, the judge indicated that the antitrust theories were somewhat dubious, because "LIV Golf's early success in entering the elite professional golf market undermines" the theory that the PGA Tour "has the power to exclude competitors from the market."
  • That said, the court determined that "these complex issues" would "be best resolved on a more developed record.

Though the plaintiffs undoubtedly will argue that the Aug. 11 opinion concerned only a procedural issue, the impact of the ruling cannot be underestimated.

For purposes of a scorecard in a legal sense, the PGA Tour made an eagle and the plaintiffs double-bogeyed.

So, what can golf fans expect next?

There are myriad possibilities in the legal arena. As a scorecard might become necessary to keep track of potential legal developments, here are key things that could happen down the road as the litigation unfolds.

The lawsuit just started. If the case culminates in a trial – because the PGA Tour is unable to get it dismissed on motions or the parties resolve it – that legal showdown will be 12 to 24 months down the road. In the interim, players, tour officials and LIV executives would sit for depositions (during which they would be questioned under oath for up to seven hours by counsel for the parties) and each side would seek discovery of documents that pertain to the issues in the case. That process is often contentious and most always expensive.

More rulings can be expected. Each side is apt to bring motions requesting rulings by the judge – ranging from topics of discovery to whether there is any merit to the claims, and whether the claims ought to be dismissed before trial. The motions will come in waves, with the PGA Tour trying to dismiss the claims as legally insufficient on their face, or for summary judgment based on the evidence given in testimony. Expect the tour to file motions by September and for the next round of hearings in October and November.

Plaintiffs might reboot their theories. Parties often amend their pleadings in the course of a lawsuit. Given the language in the court's written opinion of Aug. 11, the plaintiffs are apt to re-jigger their theories.

The legal proceedings will be public. In the U.S., the legal process by and large is undertaken in public. Motions that are filed and hearings that take place are all matters of public record. The only exception is when highly confidential materials are "sealed" in the public record, which, while not typical of most cases, is possible (but normally based on a determination by the judge that sealing is necessary to protect one of the parties' interests that outweigh the general presumption of open access to records).

A trial is far from certain. In the litigation process, 98 percent of lawsuits get dismissed or resolved. Only a smidgeon actually gets tried to verdict before a jury. This case might be impossible to settle (based on a series of acrimonious public statements issued by the respective tours thus far, and due to the varying expectations that the parties might have as to alleged damages), and each side may want to have a jury decide their fate. It remains to be seen how their decision-making on the pros and cons of their respective positions plays out.

Other lawsuits may get filed. This new lawsuit could be the first of several. Other players might file their own cases, or try to join the existing case. The same is true for LIV Golf. The litigation roadmap may take a circuitous route before these issues get resolved by trial, pre-trial rulings or settlements.

Lawsuits take time. Careful consideration of the evidence and a full airing of the respective legal positions of the parties will stretch into 2023, for sure.

Originally published by Global Golf Post.

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