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Part 2 — LIV Golf: Where do things stand?

Analysis: Have things deteriorated too far for there to be a peaceful resolution?

 

This is Part 2 of a 3-Part series looking at the conflict between LIV Golf, the professional tours, and the larger Golf Establishment. In this Part, we look at the current state of affairs between the existing tours and LIV Golf, the increasingly partisan divide, and the legal issues coming to the fore. Updated August 17, 2022.



The Current Situation

Today, LIV Golf has arrived onto the professional golf scene, having organized events in London (Centurian Club), Portland (Pumpkin Ridge), and Bedminster, New Jersey. The golf has been less than spectacular, and its presentation remains very much a work in progress. However, its presence has led to a significant disturbance in the professional golf scene as players start migrating to the LIV platform, leaders within the golf community speak out against the new initiative, pundits weigh in with their opinions, and more. This is clearly the beginning stages of the conflict, as participants and actors find their way through a changing and evolving landscape. The eventual resolution is a chapter not yet written.


Format

Most traditional forms of golf competition include four balls (better ball), foursomes (alternating shot), and match play – formats familiar to Ryder Cup and Solheim Cup audiences. Then there is the tried and true method of medal or stroke play competition, producing a winner using the crucible of 72 holes spread over 4 – days.

Professional golfer Dustin Johnson plays an imperious tee shot
2-time major champion, Dustin Johnson is the biggest star to play for LIV Golf so far


Playing 18 holes often yields surprises, those players who have “caught lightning in a bottle”, posting a good score while the better players are off to a slower start. Stretch it out to 36 or 54 holes, and the first round leader tends to move down the leaderboard as the better players begin moving to the top, like cream rising to the top of the milk. But that still doesn't quite separate the best player from the field and more often than not, that is where the final round of 18 holes provides just enough golf for the best player to separate themselves from the field. Borrowing the phrase from Sandy Tatum, former president and executive member of the United States Golf Association (USGA), the goal of the 72 hole competition is to identify the best players.[20]


By comparison, the LIV Golf format is reminiscent of the charity scramble with the shotgun start. All that appears to be missing are the young women driving beverage carts around the course selling their supply of ale, soft drinks, sandwiches, and snacks. But for all of its low brow appeal, there is something to be said for the spectacle it creates. It may not and probably does not appeal to many seasoned golfers, particularly within the more mature golf markets, but that is its purpose or at least a significant part of it — namely, to promote golf to a non traditional audience among others.


Back in October, Greg Norman as the newly announced CEO of LIV Golf, stated that the goal of partnering with the Asian Tour was to work with professional tours to create additional opportunities for players around the world in promoting the sport.


“I have been a staunch supporter and believer in playing and developing golf in Asia for more than four decades. The Asian Tour is a sleeping giant and we share ambition to grow the series and unlock what we believe is significant untapped potential. We see our promotion of these new events as a vital first step in supporting emerging markets, creating a new platform, rich with playing opportunities that create valuable player pathways.” [21]


Now that some events have been staged, it is a fair assessment to say that they have sparked widespread interest, even if much of that interest was from its detractors. The LIV Golf events have drawn a particular brand of scrutiny from a mainstream golf media that appears determined to frame it as farcical, a poor alternative to established tours where everything is a showdown between the established PGA Tour/DP World Tour and the upstart LIV Golf. Others have sought to frame the issue as LIV Golf with its Saudi seed investment being the ruination of an otherwise lily white sport. Fewer yet consider the issue from a more objective perspective, considering the issue from more than one side. Even rarer are those that are able to see or identify silver linings.

 
Captain Dustin Johnson holds the team trophy with Patrick Reed, alongside Taylor Gooch and Pat Perez
One of the biggest differences with the LIV Golf series is the inclusion of a team concept where the team with the lowest score wins the team competition
 

As for those that sought the path of derision, they promote further division and discord, stoking emotions higher whether it be for more clicks and views or simply to catch the attention of contemporary readers with short attention spans. At least one columnist has taken it so far as to describing the players that have joined LIV as charlatans, dishonest, and cowards.

Writing under the headline — “Dustin Johnson was presented a test of character by the Saudis. Unsurprisingly, he failed it”, Eamon Lynch, went on to suggest that Johnson was the “blue whale” needed to focus attention on the “quality” of the LIV Golf field and to lend some credibility to the venture. He further stated that Johnson had merely waited until his value was maximized before joining LIV Golf. He then went on, writing that “He (Johnson) is LIV’s great blue whale, but they might yet fill the unassigned spot in next week’s event (in June) with at least a pygmy whale. A Brinks truck may already be backing up to Rickie Fowler’s front door in Florida.” [22]


At the time of writing, Rickie Fowler has not played in any LIV Golf events, nor are we aware of any instances in which he uttered his desire to do so. Instead, he appears wholly committed to his golf and getting himself back among the top competitors. Yet, the derision directed to Fowler was palpable. It was speculative at best and mischievous at worst.


This is by no means the only time nor the only columnist, reporter, or writer that has framed the issue as a contest between LIV Golf and the PGA Tour/DP World Tour — villain versus hero, protagonist versus antagonist, good versus bad. Such dogged determination in describing the LIV Golf initiative with hackneyed descriptions serves no beneficial purpose other than perhaps to “sell newspapers” – it’s drawn from a school of thought that there is no such thing as bad publicity. It is more reminiscent of the tabloid culture than that of a more serious publication promoting greater understanding, dialogue, and thoughtful discussion. Such an approach serves only to embitter and divide, to mock and ridicule, to harden and strain relationships.


As for those writing from the perspective of a pro-LIV Golf position, there do not appear to be many North American based writers, columnists, or reporters advocating for its cause. Or perhaps it is because they have been drowned out by the cacophony of a dominant mainstream golf media. Instead, support for the LIV initiative seems to be stronger in other parts of the world where the PGA Tour’s reach and impact is lessened.

English golfer Tony Jacklin hoisting the US Open trophy in 1970
Tony Jacklin was the preeminent player from Europe during the late 1960s through the early 1970s

One of those voices in support of the initiative is that of Tony Jacklin, a two-time major winner – the Open (1969) and the US Open (1970). He captained the Ryder Cup team to two victories against the United States. In the Telegraph, a U.K. based newspaper, Jacklin wrote that his sole source of income was and is his social security pension, earned presumably from his years playing in the United States. He went on commenting that the amounts of money being offered with LIV Golf is life changing, and that criticism of the source of money is hypocritical.


“If somebody wants to pay a golfer $20 or $30 (million) to turn up 14 times around the world to play in a three-round event in a Super Golf League, then he or she should be entitled to do it wherever the funds come from, so long as the money is not deemed “illegal”. If someone offered me $2 (million) to play in a tournament, I wouldn’t say ‘I don’t want your filthy money’ – I’d be on the next plane thinking how my family could benefit. Politics certainly wouldn’t come into my decision making process.”[23]


Jacklin then wrote “let’s face it, after signing their recent “strategic alliance”, the PGA Tour and the DP World Tour have a monopoly on the game right now and they obviously don’t want to let that go. So we are heading into a very complex, messy situation.”[24]


A Hardening of Positions

As Jacklin suspected, the situation has deteriorated, becoming increasingly complex and messy. The Wall Street Journal reported in July that the Department of Justice has since opened an investigation into PGA Tour Inc. for potential antitrust violations, investigating whether the PGA Tour engaged in anticompetitive behaviour.[25] PGA Tour Inc. is the corporate entity under which the PGA Tour is operated.


Despite the investigation, a spokesperson on behalf of the PGA Tour said in a statement to Forbes, that “this (investigation) was not unexpected. We went through this in 1994 and we are confident in a similar outcome.” The outcome referred to, was an investigation in the 1990s by the Federal Trade Commission.[26] After an elevated response from the PGA Tour, including writing to members of Congress and the Senate, the FTC eventually voted 4-0 to reject the recommendations of their antitrust lawyers to pursue legal action.[27]


With LIV Golf, the professional golf world has moved into a new phase, where de-escalation, shared interests, and cooperation often become dirty words, never to be spoken aloud. The situation has become more positional based than interest or values based, more of a contest of wills and ego instead of a desire to identify and advance the greater interests of golf in general and professional golf in particular.


The DP World Tour and the PGA Tour have developed a unified approach in responding to players that participate in LIV Golf events, suspending many of them indefinitely.[28],[29],[30] In the leadup to the 150th Open Championship, Ian Poulter, a player suspended by the DP World Tour for playing in LIV events, sought an injunction against the Tour seeking to play in the Scottish Open. He wanted to play in the event partly to prepare himself for the Open Championship to which he had qualified. After deliberations, the retired Judge that heard the application as part of a dispute resolution process, granted it, opening the door to not only Poulter, but other DP World Tour players that had been suspended, but otherwise eligible to compete. For more on this, see our story here. [31]

 
The California Superior Courthouse in San Francisco
The competition has moved from the golf course to the court house in San Francisco where suspended PGA Tour players will ask the court to reinstate them in light of alleged "antitrust" conduct
 

Then, on August 3, some of the players suspended by the PGA Tour filed a complaint in the United States District Court for Northern California (San Francisco Division). The complaint alleges that the PGA Tour has developed into “an entrenched monopolist with a vice-grip on professional golf” and that it has used its “dominance to craft an arsenal of anticompetitive restraints to protect its long-standing monopoly.” Furthermore, the Plaintiffs alleged that the PGA Tour has “ventured to harm the careers and livelihoods of any golfers, including Plaintiffs . . . who have the temerity to defy the Tour.” [32]


The Plaintiffs further alleged that the PGA Tour accomplished this by not only threatening lifetime bans on players for participating in a LIV Golf event, but by imposing “unprecedented suspensions” on those players. In addition, its alleged that the Tour threatened sponsors, vendors, and agents to persuade or coerce players to essentially remain loyal to the Tour.[33]


And while the application seeking a Temporary Restraining Order and injunctive relief from the player ban, did not succeed in court, it is but a step in what could become a long and fairly lengthy process. [34] Those not understanding the nature of injunctive relief, wrongly conclude that this outcome is to be interpreted as to how the main matter will be decided. [35]


The Judge in her written decision, concentrated on the element of irreparable harm without which there can be no injunctive relief granted. And that is what the Judge stated, "the Court finds TRO Plaintiffs have failed to meet their burden of showing irreparable harm." [36] There was little consideration given to the actual merits of the underlying case instead some comments that are known in the legal realm as "obiter dictum" -- loosely meaning comments made in passing. They are not legally binding and have little weight in an actual proceeding. That will be left to the Jury.


The presiding Judge's obiter dictum comments may be summed up as "impressions of the merits of TRO Plaintiffs' claims at this stage." [37] She noted that the Court would be applying the legal standard for a mandatory injunction instead of one for a prohibitive injunction, noting the differences in the legal test being that the mandatory injunction "must establish that the law and facts clearly favor her position, not simply that she is likely to succeed" as would be the case in a prohibitive injunction. [38]


What is important is that this was not a trial nor a hearing on the main matters and in time, legal counsel for the Plaintiffs can revisit their application and craft a strong set of legal arguments that may find a receptive audience with the judge and jury.

As this story was being written, the discord in the professional golf world took another twist as former Masters Champion, Patrick Reed filed a complaint against Brandel Chamblee and the Golf Channel, alleging defamation. The complaint was filed in the United States District Court for the Southern District of Texas (Houston Division). It represents another shot fired in the legal arena and not the golf course. [39]


The present day division and disturbance within the golf world is very real. Save for the period of the Great Depression, the War years, and the schism of 1968, this period of time may prove to be the most disruptive in the long history of the sport. If golf is going to come through this period with any hope of being enhanced or perhaps more realistically, without being greatly diminished, then cooler heads must prevail. Emotion must be parked at the door.


That is not to say that facts and values do not matter, especially as they pertain to countries like Saudi Arabia, China, or Russia. They most certainly have a place in the conversation about the future direction of the sport. But there are also other considerations and issues that must be be factored in to any discussion. Whether agreement can be reached on the future direction of the sport or not, remains very much dependent on being able to have a conversation — And that is where the Final Part takes us.



In the Final Part, we consider potential next steps and a possible resolution that could see golf emerge stronger than ever - if parties are willing to work towards that.

 

[20] David Shefter, “A Life Devoted to Golf: Remembering Sandy Tatum”, USGA June 27, 2017 available from https://www.usga.org/content/usga/home-page/articles/2017/06/former-usga-president-frank--sandy--tatum-dies.html , accessed on July 29, 2022.

[21] Greg Norman, “Greg Norman Named CEO of LIV Golf Investments”, LIV Golf News Release, October 29, 2021. Available from https://www.livgolf.com/news/greg-norman-named-ceo-of-liv-golf-investments , accessed on July 31, 2022.

[22] Eamon Lynch, “Lynch: Dustin Johnson was presented a test of character by the Saudis. Unsurprisingly, he failed it”, GolfWeek, June 2, 2022 available from https://golfweek.usatoday.com/2022/06/02/eamon-lynch-dustin-johnson-test-character-saudi-liv-golf/ accessed on July 29, 2022.

[23] Tony Jacklin, “Elite Golfers should be free to make Saudi fortune – I would be on the first plane there”, Telegraph, February 2, 2022 available from https://www.telegraph.co.uk/golf/2022/02/02/elite-golfers-should-free-make-saudi-fortune-would-first-plane/ accessed on July 28, 2022.

[24] Jacklin, Elite Golfers.

[25] Louise Radnofsky and Andrew Beaton, “Justice Department is Investigating PGA Tour Over Potential Antitrust Violations in LIV Golf Battle”, Wall Street Journal, July 11, 2022 available from https://www.wsj.com/articles/pga-tour-antitrust-liv-department-of-justice-investigation-11657557177 , accessed on August 7, 2022. [26] Derek Saul, “Feds Launch Probe into PGA Over Response to Rival LIV Golf”, Forbes, July 11, 2022 available from https://www.forbes.com/sites/dereksaul/2022/07/11/feds-launch-probe-into-pga-over-response-to-rival-liv-golf/?sh=488565da57c8, accessed on August 7, 2022. [27] David Willman, “PGA Outclubs FTC in Antitrust Fight”, Los Angeles Times, October 22, 1995 available at https://www.latimes.com/archives/la-xpm-1995-10-22-fi-59876-story.html, accessed on August 9, 2022. [28] PGA Tour Media, “Commissioner Jay Monahan responds to players competing this week without proper releases,” news release, June 9, 2022, https://www.pgatour.com/news/2022/06/09/pga-tour-commissioner-jay-monahan-responds-players-competing-without-proper-releases.html [29] Josh Sens, “With LIV looming, PGA Tour and DP World Tour strengthen alliance”, Golf Magazine, June 28, 2022, available at https://golf.com/news/pga-tour-dp-world-tour-strategic-alliance/, accessed on August 10, 2022. [30] PGA Tour Media, “DP World Tour, PGA TOUR expand and strengthen alliance”, news release, June 28, 2022, https://www.pgatour.com/news/2022/06/28/dp-world-tour-pga-tour-european-tour-expand-strenghten-alliance.html [31] See the following for more information on the Poulter decision, “LIV Golf Suspensions – Ian Poulter Okay to Play Scottish Open”, World of Golf, July 4, 2022, available at https://bit.ly/IanPoulter-Appeal. [32] Mickelson v. PGA Tour, Inc. (5:22-cv-04486-BLF), Complaint & Jury Trial Demand, United States District Court for Northern California (San Francisco Division), filed August 3, 2022, p.1 and available at https://www.cand.uscourts.gov/wp-content/uploads/2022/08/PGA-complaint.pdf, accessed on August 7, 2022. [33] Mickelson v. PGA Tour, Inc., p.2.

[34] World of Golf, Live Golf Suspensions.

[35] World of Golf, Live Golf Suspensions.

[36] Mickelson, et. al. v. PGA Tour, Inc, "Order Denying Plaintiffs Motion for Temporary Restraining Order", Case No. 22-cv-04486 BLF, p.11.

[37] Mickelson, et. al. v. PGA Tour, Inc, "Order Denying", p.12.

[38] Mickelson, et. al. v. PGA Tour, Inc, "Order Denying", p.12.

[39] Patrick Nathaniel Reed v. Brandel Eugene Chamblee and TGC, LLC d/b/a/ Golf Channel (4:22-cv-02778] Complaint and Jury Trial Demand, United States District Court for Southern Texas (Houston Division), filed August 26, 2022. available at https://www.scribd.com/document/587427728/Patrick-Reed-vs-Golf-Channel-Brandel-Chamblee




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