Fairways and Bunkers: The LIV Golf–PGA Tour Quarrel Through the Tenets of Antitrust and Contract Law

Introduction

For several decades, the Professional Golfers’ Association Tour (“PGA Tour”) dominated the American men’s golf sphere.¹ Historically unfettered by competing tours, also known as circuits or series, the PGA Tour encountered its first major challenge in 2021 when LIV Golf Tour (“LIV”) officially announced its presence.² The name “LIV” derives from the Roman numeral for fifty-four, which represents the number of holes played in LIV tournaments, diverging from PGA Tour’s traditional seventy-two-hole tournament.³ Steered by CEO and former top professional golfer Greg Norman, LIV aims to transform how golf is played and reel in new fans.⁴

LIV swept several players from the PGA Tour in 2022, primarily due to its spin on the structure of the game and exorbitant signing bonuses.⁵ LIV’s website displays its current roster, which includes popular players such as Dustin Johnson, Bryson DeChambeau, and Brooks Koepka.⁶ Other fan favorite players, including Tiger Woods and Rory McIlroy, elected to remain with the PGA Tour.⁷ In response to LIV’s growing popularity, the PGA Tour implemented the Player Impact Program (“PIP”) to increase player payouts, as well as other initiatives to guarantee salaries and offset missed tournament cuts.⁸ North American professional golf has international counterparts, such as the DP (European) and Asian Tours, but there have been no concrete challenges to the PGA Tour’s reign until LIV Golf’s entrance.⁹

The American sports industry is no stranger to rival leagues, or upstarts, formed to compete with the big four dominant organizations: the National Football League (“NFL”), National Basketball Association (“NBA”), National Hockey League (“NHL”), and Major League Baseball (“MLB”).¹⁰ The traditional team sports league consists of member-teams which are managed by a governing board or commissioner.¹¹ However, non-team sports, such as golf and tennis, operate quite differently from team sports.¹² Individual athletes are similar to independent contractors and are governed by a sole entity, like the International Tennis Federation (“ITF”).¹³ Non-team sport athletes also miss out on the luxury of collective bargaining agreements that team athletes enjoy.¹⁴ The structural variances of non-team entities impact how the friction between LIV and the PGA Tour will ultimately unfold.¹⁵ In 2023, the PGA Tour, LIV, and DP World Tour stunned the golf world, including the players, when they announced a monumental agreement “to unify the game of golf, on a global basis.”¹⁶

Through the canons of contract and antitrust law, this Note will propose that the LIV–PGA Tour dispute and the newly announced unification agreement should resolve in favor of the players’ freedom to contract to preserve fairness and integrity in the sport and business of golf, as well as other sports organizations where rival leagues surface. Part I outlines the operational distinctions and quarrel between LIV and the PGA Tour, identifies past intersections of antitrust law with competing sports leagues, and narrates the contractual relationship between individual athletes and their organizations. Part II delineates the importance of the LIV–PGA Tour battle in the context of organization-level antitrust and athlete-level contract law. Part III analyzes the antitrust implications of the LIV–PGA Tour unification agreement. Part IV concentrates on the contract restrictions imposed on players by their organizations and advocates for player autonomy.

I. Background

A. Key Differences Between LIV and PGA Tour Gameplay

LIV departs from the PGA Tour’s traditional game structure in order to attract players and modernize the sport for fans.¹⁷ Unlike the PGA Tour’s individualized structure, LIV tournaments are team-based.¹⁸ Each tournament consists of twelve teams and forty-eight players, which is a significantly smaller playing field than PGA Tour events.¹⁹ PGA Tour tournaments eliminate, or “cut,” a certain number of players with inferior scores halfway through each event.²⁰ In most tournaments, if a player makes the cut, he is guaranteed to win prize money.²¹ Accordingly, if a player misses the cut, he earns no money for playing two complete rounds in the tournament.²² With fewer players in each tournament, LIV does not cut players; this decision benefits players because they are all paid for partaking in the event, and it benefits fans because they have the opportunity to watch their favorite players throughout the tournament.²³

Another feature intended to modernize the game is LIV’s tournament speed.²⁴ PGA Tour events provide tee times for each grouping of three to four players at the first hole of the golf course and stagger each start time by ten to fifteen minutes.²⁵ LIV, on the other hand, has all twelve teams tee off at the same time on different holes—known as a “shotgun start.”²⁶ This synchronized start enhances viewer engagement by destigmatizing golf as a slow sport.²⁷ Not only are LIV tournaments an entire day shorter than PGA Tour events, but each individual round is faster due to the shotgun start.²⁸ LIV also schedules fewer events per year, allowing players to spend more time with their families and friends.²⁹ The changes made by LIV contributed to dozens of players exiting the PGA Tour in 2022.³⁰

B. The Tension Between LIV and the PGA Tour Before Unification

LIV’s most prominent feature—and perhaps its biggest problem—is money.³¹ If the new structure and guaranteed payouts are not enough for players, LIV extends copious amounts of money as signing bonuses to encourage players to leave the PGA Tour.³² Multiple major tournament winner Dustin Johnson’s signing bonus with LIV was speculated to be as high as $150 million.³³ Longtime PGA Tour veteran Phil Mickelson’s signing bonus with LIV reportedly amounted to $200 million, exceeding his entire career earnings with the PGA Tour.³⁴

Controversially, LIV’s largest stakeholder is the Saudi Arabian Public Investment Fund (“PIF”)—a sovereign-wealth fund designed to differentiate the country’s economy from its oil revenue.³⁵ Some golfers and members of the public have not received this well because of Saudi Arabia’s recent history involving human rights issues and the murder of journalist Jamal Khashoggi.³⁶ Another problematic feature for some is that former United States President Donald Trump publicly supports the LIV circuit; he has a strong rapport with the Saudi prince and owns seventeen golf courses across the globe, some of which host LIV events.³⁷ There is also pushback by the American public because of the uncertainty surrounding the country’s involvement in the 9/11 attacks, as fifteen of the nineteen airplane hijackers were Saudi Arabian citizens.³⁸

These controversies caused a rift between supporters of PGA Tour and LIV.³⁹ One view is that Saudi Arabia invests money in golf and other sports to improve its reputation in the eyes of Western nations.⁴⁰ Conversely, others perceive Saudi Arabia’s enormous financial investment as “sportswashing,” which refers to a political power’s scheme to utilize the broad appeal of sports and money to glisten over its divisive actions.⁴¹

These divergent opinions, as well as player frustrations with the PGA Tour, led to legal scuffles in 2022.⁴² The players with active PGA memberships who transferred to LIV received indefinite suspensions and ineligibility for select 2022 tournaments.⁴³ LIV Golf and several player-plaintiffs sued the PGA Tour for federal antitrust violations and breaches of player contracts based on its anticompetitive behavior in excluding LIV players from PGA Tour events.⁴⁴ The PGA Tour countersued, alleging that LIV coerced players to break their existing PGA Tour contracts and that the players suffered no actual damages; LIV imposed stricter restrictions on its players through its contracts, but the players agreed to them in exchange for large sums of money.⁴⁵

The LIV player contracts are a combination of standard terms and unusual restrictions.⁴⁶ A sample draft contract revealed that LIV awards a $1 million bonus if the player wins one of golf’s four major championships, which are not controlled by the PGA Tour: The Masters Tournament, U.S. Open, British Open, and PGA Championship.⁴⁷ During both LIV and non-LIV events, players must wear LIV-branded apparel and LIV must authorize any other product brands.⁴⁸ Other restrictions include requiring LIV approval for interviews, compelling players to bolster LIV recruitment, and limiting media rights.⁴⁹

The litigation between LIV and PGA Tour, which included Phil Mickelson and ten other LIV players who left the PGA Tour, came to a halt when LIV and PGA Tour announced their partnership in 2023.⁵⁰ In response to what most refer to as a merger, the U.S. Department of Justice (“DOJ”) and Federal Trade Commission (“FTC”) proposed updated Merger Guidelines to better comport with federal antitrust laws.⁵¹

C. Antitrust Law Applied to Rival Sports Leagues

1. Antitrust in General

Basic principles of the Sherman Antitrust Act (“Sherman Act”) are critical to understanding the LIV–PGA Tour debacle.⁵² The Sherman Act is a federal statute that prevents monopolies, unreasonable restraints of trade, and any other unfair business practices.⁵³ At a sweeping level, § 1 of the Sherman Act prohibits agreements that unreasonably restrain competition in the market.⁵⁴ A viable antitrust claim must affect interstate commerce.⁵⁵ Successful § 1 claims demonstrate a “concerted action” on one side of the lawsuit, which can include a sports league setting certain rules or policies.⁵⁶

Courts employ two primary tests in antitrust analyses under § 1: a per se test and a rule of reason test.⁵⁷ Per se violations, those which egregiously restrict competition and produce no valuable effect on the market, are presumed unreasonable.⁵⁸ Courts utilize the rule of reason test when the per se rule does not apply and requires the plaintiff or government to demonstrate unreasonableness.⁵⁹ This test requires the plaintiff to establish: (1) a concerted action; (2) an injury; and (3) an anticompetitive effect on the market or market power.⁶⁰ Based on the specific facts of each case, the court concludes whether the defendant’s conduct unreasonably restrained trade by weighing the pro-competitive effects against the anticompetitive effects.⁶¹ These evaluations are utilized in sports antitrust cases to evaluate league conduct.⁶²

2. Sports Organization Defenses to Antitrust Lawsuits

Antitrust law serves as a regulatory “check” for the four major sports leagues in the United States.⁶³ When applied to team sports organizations, the non-statutory labor exemption often excuses antitrust defendants.⁶⁴ This exemption essentially punts labor disputes, framed as antitrust claims by athletes, to the National Labor Relations Board (“NLRB”) given its specialized knowledge of labor laws.⁶⁵ This exemption might not apply to non-team sport athletes because they are considered independent contractors, whereas team sports athletes are considered employees and often rely on collective bargaining agreements.⁶⁶

Sports leagues commonly respond to § 1 lawsuits with the single entity defense.⁶⁷ The NFL raised this defense in the American Needle case by relying on the “parties to conspiracy” clause in § 1 of the Sherman Act.⁶⁸ This defense rests on the principle that parties operating as a single entity are incapable of conspiring with each other to restrain trade, though such an entity could still qualify as a monopoly under § 2 of the Sherman Act.⁶⁹ In American Needle, the U.S. Supreme Court held that there was concerted action amongst the thirty-two NFL teams due to each team’s individual competing interests.⁷⁰ The Court also held that the NFL was not entitled to the single entity defense.⁷¹ Team entities have not been successful with this defense, but the outcome could vary significantly with non-team entities due to their inherent organizational differences.⁷²

Since the U.S. Supreme Court’s “baseball trilogy”—Federal Baseball, Toolson, and Flood—MLB has enjoyed an exemption from antitrust laws.⁷³ In the late nineteenth century MLB introduced the Reserve System, which restricted players from transferring from team to team at their will and allowed team owners to unilaterally extend player contracts.⁷⁴ This prompted the formation of the Federal League, a rival league that appealed to the players’ interests.⁷⁵ MLB responded by increasing player salaries and blacklisting players who transferred to the competing league.⁷⁶ After antitrust litigation efforts and an eventual settlement, the Federal League disbanded; however, one Federal team brought its own case against MLB.⁷⁷ The Federal Baseball case ascended to the U.S. Supreme Court, which concluded that MLB did not engage in interstate commerce, therefore antitrust laws did not apply to MLB.⁷⁸

Despite criticism of the Reserve Clause as a form of player slavery, the Court sustained its position on MLB’s exemption in two cases following the Federal Baseball decision—Toolson and Flood.⁷⁹ In reaffirming the exemption and adhering to precedent in Flood, the Court conceded that professional baseball constitutes interstate commerce.⁸⁰ Unclear on the scope of the Flood holding, Congress later responded by enacting the Curt Flood Act of 1998 (“CFA”).⁸¹ The CFA allowed players to successfully challenge the Reserve System, but maintained U.S. Supreme Court precedent that MLB is economically immune from antitrust laws.⁸² To this day, MLB’s exemption persists, allowing it to maintain control over all minor league (or “farm” team) players.⁸³ The exemption also allows MLB to retain geographic exclusivity over teams—preventing them from changing cities at will—and to corner the market on television broadcasting rights.⁸⁴ These powers make it extremely difficult for an upstart league to materialize.⁸⁵ Even though MLB’s exemption has narrowed over time, it is unique to baseball and it is quite challenging for any other sport to assert that the Sherman Act does not apply.⁸⁶

D. Contractual Relationships Between Athletes and Organizations

On a fundamental level, sports contracts are akin to any other binding, express contract.⁸⁷ Customarily, athletes who participate on a team sign a boilerplate professional services contract, also known as a standard player contract, that is essentially identical from team to team.⁸⁸ Traditionally, the team agrees to pay the athlete a salary and cover expenses, such as travel.⁸⁹ Some team athlete contracts contain more individualized clauses.⁹⁰

Historically, sports teams and leagues used contracts to restrict player mobility.⁹¹ Notably, CFA dissipated the MLB Reserve Clause and allowed players to have more autonomy in their contracts to transfer to a different team, which is now known as “free agency.”⁹² Both athlete autonomy and fairness result from collective bargaining efforts by players’ unions, such as the MLB Players Association (“MLBPA”).⁹³

Standard player contracts establish an employer-employee relationship between the team and the athlete.⁹⁴ Conversely, endorsement contracts create a contractor-independent contractor relationship between the company and the athlete.⁹⁵ Non-team sport athletes, such as golfers, have arrangements that are similar to endorsement or licensing contracts.⁹⁶ They typically do not receive salaries and must pay for their own travel and expenses for tournaments.⁹⁷ In order to become a PGA Tour member and to participate in professional golf’s most elite events, a golfer must sign a non-compete agreement that requires Tour approval for that golfer to play in any event that conflicts with PGA Tour events.⁹⁸ LIV Golf attempted to offer golfers an escape from the PGA Tour’s limitations with guaranteed payouts in its player contracts—which included some restrictions of LIV’s own.⁹⁹

II. Importance of the LIV Issue

The LIV–PGA Tour controversy is an unprecedented issue in sports law.¹⁰⁰ While there have been upstart leagues in every major American team sport, non-team sports have not experienced this type of issue before.¹⁰¹ Ideally, the two golf circuits could come to an agreement that satisfies both tours and the athletes, which they attempted to do with the 2023 merger.¹⁰² Otherwise, the circuits would exist independently of one another, which creates problems as well.¹⁰³ Players who remained loyal to the PGA Tour are not thrilled that LIV players who signed exorbitant contracts are allowed to reclaim their Tour cards, and that the PGA Tour succumbed to the Saudi government money that Commissioner Jay Monahan publicly discouraged.¹⁰⁴ No matter the outcome, this will have a huge impact on formations of future rival leagues at an organizational level.¹⁰⁵ Though this dispute is rooted in money, there are other implications at issue, including politics and the daily impact sports have on fans and athletes.¹⁰⁶ Politically, LIV could have a major effect due to its Saudi Arabian ownership.¹⁰⁷ This alone is divisive among players, fans, and the general public.¹⁰⁸ LIV could either lose or gain fans because of its ties to the PIF.¹⁰⁹ If this merger succeeds, sovereign-wealth funds will continue to invest in other sports and international industries.¹¹⁰

From the perspective of golfers and other non-team sport athletes, the LIV–PGA Tour chronicle is significant because it affects their individual careers, livelihoods, and ability to have autonomy over the entities that govern them.¹¹¹ Without the benefit of collective bargaining power, non-team athletes must fend for themselves—resulting in possibly unfair agreements with large entities like the PGA Tour or Saudi Arabian government.¹¹² Athletes are an integral part of this issue because they are the producers of the content and the reason that sports are globally cherished.¹¹³

The eventual outcome of the LIV–PGA Tour merger impacts fans as well.¹¹⁴ While most sports fans are not experts in antitrust or contract law, they do understand that if their favorite players are unhappy with their “employers,” the fans might lose the opportunity to watch those players.¹¹⁵ Watching sports creates a sense of community among fans and, perhaps most significantly, fans propel the business of sports.¹¹⁶ Analyzing the effects of the increasing competition in this market reveals the substantial consumer nature present in the sports industry.¹¹⁷ Through antitrust and contract law, this issue trickles from an institutional level to the general public.¹¹⁸

Analysis

III. Antitrust Law and the Individualized Nature of Golf

A. Challenging the PGA Tour’s Reign over Professional Golf

The PGA Tour savored an unchallenged dominance over men’s professional golf for multiple decades.¹¹⁹ It is not surprising that a new entity seized an opportunity to combat the PGA’s authority by offering players a fresh circuit with a new structure, new rules, and of course, more money.¹²⁰ Also unsurprisingly, the spike in players leaving the PGA Tour for the new LIV Golf Tour led to legal scuffles almost immediately.¹²¹ Though the DOJ’s larger investigation of the PGA Tour’s antitrust law violation loomed in the background, the focus of the now-dismissed lawsuit was on LIV’s antitrust claims against the PGA Tour for banning or suspending players from tournaments after they joined LIV.¹²²

During the litigation, LIV claimed that the PGA Tour monopolized the industry and illegally suspended players.¹²³ The PGA Tour sought to ascertain the level of involvement of the PIF and Saudi Arabian governor, Yasir Al-Ramayyan, in LIV’s operations and potential interference with the PGA Tour’s business; the PIF and Al-Ramayyan answered with a sovereign immunity claim.¹²⁴ However, a magistrate judge ruled that the PGA Tour could depose and subpoena documents from both the PIF and Al-Ramayyan.¹²⁵ If the PGA Tour can access the sovereign-wealth fund’s never-before-seen business records, it could reveal that LIV and the PIF intentionally interfered with the PGA Tour’s business.¹²⁶

1. Asserting the Single Entity Defense as a Non-Team Sport

If this litigation reached the trial stage, the PGA Tour likely would have asserted the single entity defense.¹²⁷ Although this defense to antitrust claims has not proven successful in team sports such as football, it may apply to non-team sports, including golf, due to organizational differences.¹²⁸ These differences include: the lack of unionization and collective bargaining; rulemaking by a single governing board; and event facility ownership by outside sponsors.¹²⁹ When a sports organization raises the single entity defense in an antitrust case, the inquiry hinges on whether there was concerted action.¹³⁰ The organization must demonstrate a collaborative venture of separate decision-makers to prevail on this defense.¹³¹

Team sports organizations involve numerous member-teams under the umbrella of a larger entity; this usually does not constitute the type of concerted action required to raise the single entity defense.¹³² Even though each team is an entity that retains both its own interests to promote and its own competitive market of fans to appeal to, when every team collaborates as a group to license its intellectual property, there is concerted action amongst multiple entities.¹³³ In American Needle, the NFL could not raise the defense due to each team possessing its own individual intellectual property interests and acting in concert to pursue a common goal to limit competition.¹³⁴ Unlike the NFL, the PGA Tour is in a unique position to raise the single entity defense as a non-team sports organization.¹³⁵ Before the LIV controversy, the most recent antitrust claim against the PGA Tour was a class action involving golf caddies who were required to wear bibs printed with sponsor names during tournaments and received no compensation.¹³⁶ The plaintiff caddies in Hicks proved unsuccessful because they failed to narrowly define the particular market.¹³⁷ Though the Ladies Professional Golf Association (“LPGA”) and various tennis organizations previously defended antitrust lawsuits and obtained varying results, the cases were litigated before the single entity defense gained traction among courts—and not in the context of an upstart league.¹³⁸

In raising this defense against LIV, the PGA Tour would argue that it operates as a single entity due to its practice of treating players as independent contractors.¹³⁹ This assertion has a better chance of success for the PGA than the NFL because the PGA Tour does not consist of member-teams motivated to serve their own interests; rather, it is composed of individual players.¹⁴⁰ This is significant because the PGA Tour can demonstrate that the entire organization has the “common unity of economic interest,” and therefore is unable to conspire.¹⁴¹ The PGA Tour also creates its own rules through a Board of Directors and Commissioner, which the players are expected to follow to maintain the common goals of the circuit.¹⁴² The Tour does not own or operate any of the golf courses utilized for the four major championships, which could augment its argument in an antitrust suit.¹⁴³

Conversely, aspects of the PGA Tour cut against its potential single entity defense.¹⁴⁴ The American PGA Tour controls other circuits, such as PGA Tour Canada and the PGA Tour Champions.¹⁴⁵ It also invests in and works closely with the DP Tour, particularly since LIV sliced into the market.¹⁴⁶ LIV could wedge these factors against the PGA Tour because the more disparate the interests of each circuit, the greater likelihood that a court will not accept a single entity defense.¹⁴⁷ Like the individual NFL teams in American Needle, each circuit under the PGA Tour’s control could have its own individual interests and not conspire to restrict competition as a group to constitute concerted action.¹⁴⁸ LIV could also spin the American Needle holding on the PGA Tour by asserting that the players themselves are business entities: they have their own individual financial interests, intellectual property, and sponsorships.¹⁴⁹

The Sherman Act is intended to prevent businesses from colluding and pushing out new participants from the market, which the PGA Tour possibly did to LIV players when it banned them from certain tournaments.¹⁵⁰ However, the PGA Tour’s counter argument would be that players have plenty of other opportunities to play elsewhere—such as LIV-sponsored events or the major tournaments not operated by the PGA Tour.¹⁵¹ LIV likely had meaningful arguments against the PGA Tour to forgo player suspensions, but the costs of litigation—both financial and reputational—may have driven the circuits toward the merger.¹⁵²

The PGA Tour likely had a viable argument under the single entity defense if it persuaded the court that its actions are part of a concerted action and not collusion intended to corner the golf market.¹⁵³ If the court decided that non-team sports can utilize the single entity defense, several unanswered questions would finally resolve after the American Needle case over a decade ago.¹⁵⁴ The single entity defense would have played a significant role if the case went to trial, but the court would default to a rule of reason test if the defense is inapplicable.¹⁵⁵

2. The PGA Tour’s Conduct Under a Rule of Reason Analysis

If the court did not accept the PGA Tour’s single entity defense, it would conduct a rule of reason analysis to determine if a Sherman Act violation existed.¹⁵⁶ Rule of reason analyses are quite fact-specific compared to a per se violation, where anticompetitive conduct is so egregious that it is presumed unreasonable.¹⁵⁷ Under this balancing test, the pro-competitive benefits of the defendant’s conduct are weighed against the anticompetitive effects.¹⁵⁸ Some degree of anticompetitive restraint may be necessary for the sustainability of the organization, as long as it is not an unreasonable restraint under the Sherman Act.¹⁵⁹

The PGA Tour’s response to the LIV plaintiffs’ motion for a temporary restraining order raised several defenses to the antitrust claims, without explicitly naming the rule of reason test.¹⁶⁰ It argued that the procompetitive benefits of its regulations substantially outweigh the anticompetitive effects.¹⁶¹ The PGA Tour maintained that its regulations do not prevent players from participating in competing circuits; players are free to “sell their services” elsewhere as independent contractors.¹⁶² The PGA Tour centered this argument on its desire to avoid LIV “freeriding” on the Tour’s investments, especially because LIV already established itself as a viable competitor in the men’s golf industry despite the PGA Tour accusing LIV of sportswashing.¹⁶³ LIV has its own tournaments, seemingly unlimited funding, and streaming and broadcasting arrangements.¹⁶⁴ These factors indicate that LIV had no issue penetrating the market in its inaugural year.¹⁶⁵ These are compelling procompetitive benefits, but LIV and its plaintiffs alleged suitable anticompetitive effects as well.¹⁶⁶

Under a rule of reason inquiry, LIV and the plaintiffs argued that the anticompetitive effects of the PGA Tour’s regulations and player suspensions outweigh its pro-competitive benefits.¹⁶⁷ LIV contended that the PGA Tour exercised its monopsony power to restrain competition in its player regulations and suspension of the plaintiffs.¹⁶⁸ The Complaint highlighted LIV’s intention to be a direct competitor and “enhance the professional golf marketplace,” which weakened its argument that the PGA Tour is anticompetitive.¹⁶⁹ LIV has the monetary means to offer guaranteed salaries and signing bonuses for players, which the PGA Tour had never done until its Earnings Assurance Program in response to LIV’s entrance.¹⁷⁰ LIV and the plaintiffs claimed that this response by the PGA Tour is anticompetitive, but it more accurately indicates the antagonistic impact LIV already had on the golf market.¹⁷¹ Under a rule of reason analysis, the PGA Tour would likely prevail because of the balancing test weighing in its favor.¹⁷²

B. Antitrust and Other Implications of the LIV–PGA Tour Merger

The PGA Tour, LIV Golf, and DP merger radically shifts the professional golf industry—including the players and the fanbase.¹⁷³ Players on both sides of the battle offer differing perspectives on LIV’s presence.¹⁷⁴ Sports history provides little insight regarding the outcome of this controversy, particularly because of the individual nature of golf as a sport and the fact-specific inquiry required in an antitrust analysis.¹⁷⁵ Golf might not receive the same antitrust exemption as baseball, but it could prove more successful than the NFL by raising the single entity defense; if victorious, this will alter sports antitrust precedent by defining a clearer line for single entity defenses.¹⁷⁶ If the single entity defense bogeys, the rule of reason analysis likely shields the PGA Tour from antitrust liability.¹⁷⁷ The outcome of this merger impacts individual players’ relationships with the newly formed alliance.¹⁷⁸

The PGA Tour’s announcement framed the partnership with LIV and DP as a plan “to unify the game of golf,” without using the word “merger.”¹⁷⁹ Other sources refer to this agreement as a “merger” with potentially fatal antitrust implications.¹⁸⁰ The DOJ announced its intent to investigate this purported partnership under antitrust laws.¹⁸¹ The PGA Tour faces a high burden to corroborate that this agreement does not completely restrict the professional golf market.¹⁸² Even if thwarted by the DOJ, the agreement has a substantial impact on the athletes, including fewer opportunities to freely contract with this new commercial entity.¹⁸³

IV.Contract Constraints and Athlete Autonomy

A. Comparing Player Restrictions in LIV and PGA Tour Contracts

Although LIV golfers desired more freedom and flexibility when they abandoned the PGA Tour, LIV contracts contain provisions that are just as restrictive.¹⁸⁴ While LIV contracts contain beneficial provisions for players, such as bonuses for winning major tournaments, the restrictions are quite demanding.¹⁸⁵ As mentioned, these player restrictions include: wearing LIV-branded apparel at all events, requiring approval for interviews, and assisting with LIV Golf recruitment.¹⁸⁶ LIV players also sign away their media rights, but retain individual rights to their name, image, and likeness outside LIV events.¹⁸⁷ The large signing bonuses and guaranteed payouts that LIV offered players to switch circuits might compensate for the restrictions, but LIV is still in its early stages, so it is difficult to predict the long-term effects.¹⁸⁸

Though LIV players reap the benefits of more money and less rigorous media rights provisions, many of LIV’s restrictions are not unusual to PGA Tour member agreements.¹⁸⁹ The PGA Tour maintains that its players are independent contractors who must adhere to its binding rules.¹⁹⁰ These binding provisions include strict discipline and misconduct rules.¹⁹¹ A major issue in the LIV–PGA Tour feud involved the PGA Tour’s suspension of players who joined LIV.¹⁹² The players were banned from participating in certain PGA-sponsored tournaments, such as the annual FedEx Cup which closes out each season.¹⁹³ The MLB’s Reserve Clause places similar restrictions on players, such as prohibiting players from leaving their respective teams without express approval.¹⁹⁴ Although golf is a non-team sport—and the PGA Tour claims its members are independent contractors—it appeared that PGA Tour players were held against their will.¹⁹⁵ The PGA Tour argued that the players breached their contracts when they signed with LIV, therefore it would be unfair to the remaining PGA Tour players who followed the rules if LIV players participated in the FedEx Cup.¹⁹⁶ It is also contradictory that LIV players complain about the PGA Tour’s constraints yet ask to return to PGA Tour events.¹⁹⁷ This hinders golfers’ mobility and ability to play desirable tournaments while earning a living.¹⁹⁸ While a players’ union and collective bargaining agreements could help golfers negotiate fair contracts with the unified entity consisting of the PGA Tour, LIV, and DP, this practice favors the overarching interests of the group, rather than individual athlete concerns.¹⁹⁹

B. Player Autonomy Should Prevail

The end of the Reserve System and the beginning of free agency provided team sport athletes with more freedom and mobility.²⁰⁰ Non-team sport athletes should possess the same level of autonomy; their independent contractor status should not encumber their ability to play where they choose.²⁰¹ A system that parallels team sports’ free agency would balance the competition between the two circuits.²⁰² This practice allows players to play golf at the same elite events without being penalized for desiring one circuit over the other.²⁰³

Considering the PGA Tour’s quick response, the new circuit’s arrival is precisely what professional golfers needed to meaningfully choose between entities.²⁰⁴ For decades, the PGA Tour was the sole option for professional golfers.²⁰⁵ LIV offers player benefits that PGA Tour players sought for years.²⁰⁶ LIV reportedly covers travel expenses, whereas PGA Tour players must pay their own way to each tournament.²⁰⁷ Another reason several players signed with LIV is the opportunity to spend more time with their families.²⁰⁸ LIV has fourteen events slated for 2023, whereas the PGA Tour currently executes forty-four, four-day tournaments per year.²⁰⁹ Typically, a PGA Tour member appears in twenty to thirty events annually—with almost no security in being paid due to tournament cuts.²¹⁰ Coupling LIV’s less strenuous event schedule with guaranteed payouts, no cuts, appearance fees, and signing bonuses, it is not difficult to understand why players putted over to LIV.²¹¹ The PGA Tour quickly responded to LIV’s arrival.²¹² It enacted several new programs to appeal to player satisfaction, including higher payouts and offsetting costs for missed cuts.²¹³ It is questionable if the PGA Tour would enact these changes without the pressure from LIV’s arrival.²¹⁴ The PGA Tour turned these seemingly progressive changes on their head when it announced the alliance agreement with LIV and DP.²¹⁵ The best outcome for this merger allows the players to retain autonomy and encourages fans to enjoy the sport of golf.²¹⁶

Conclusion

Ultimately, the LIV–PGA Tour chronicle involves complex issues of law, policy, and business that cannot resolve overnight.²¹⁷ Some believe the unified partnership positively impact golf and set a precedent for other sports to follow. Others criticize the merger and classify it as a textbook antitrust violation and a political issue. From the athlete and fan perspective, the LIV–PGA Tour debate should emphasize the players’ freedom to contract and their autonomy to choose their terms. Athletes are often treated as commodities, which is problematic for political and cultural reasons. Rather than concentrating all efforts on business interests, a more individualized view of this conflict is the ideal solution. Through collective bargaining efforts, unions provide ample opportunities for athletes to voice their concerns at the highest levels of their respective organizations.²¹⁸ If the PGA Tour–LIV–DP partnership passes the DOJ’s scrutiny, perhaps golfers will see a similar response by the entity to address their concerns. Sports organizations extensively drive the global economy—an interest that must be on par with cultural and political factors that impact the daily lives of individuals.

1
Blinder et al., What Is LIV Golf? It Depends Whom You Ask, N.Y. Times (May 22, 2023), https://perma.cc/WYN2-4S3J.
2
See Joel Beall, The LIV Golf Series: What We Know, What We Don’t, and the Massive Ramifications of the Saudi-Backed League, Golf Dig. (June 8, 2022), https://perma.cc/YVW2-CATR.
3
Blinder et al., supra note 1.
4
See generally Colt Knost & Drew Stoltz, Greg Norman Breaks Down the LIV Golf Invitational Series and Why He Is Confident the Best Players in the World Will Participate, Golf’s Subpar Podbean , at 16:05–17:27 (Mar. 16, 2022), https://perma.cc/9A26-NY8Y (podcast) (explaining CEO Greg Norman’s goals for LIV soon after its announcement).
5
Owen Poindexter, Seven of 10 Highest Paid Golfers Joined LIV Golf, Front Off. Sports (July 29, 2022, 1:03 PM), https://perma.cc/W934-GZ8L. See generally Dylan Dethier, Every LIV Golfer Who Has Left the PGA, Ranked by Value, Golf (Aug. 30, 2022), https://perma.cc/G4C7-UYS2 (listing former PGA players who joined LIV).
6
See Players, LIV Golf , https://perma.cc/UK9H-TRGY (last visited Mar. 29, 2024).
7
Scott Davis, PGA Tour Announces Massive Changes to Calendar, Player Payouts—And a New Tiger Woods-Backed League—In Response to LIV Golf Challenge, Insider (Aug. 24, 2022, 2:11 PM), https://perma.cc/X9NK-YG9G; see, e.g., Ben Morse, Tiger Woods Turned Down $700-$800 Million Offer to Join Saudi-Backed LIV Golf Series, Says CEO Greg Norman, CNN (Aug. 2, 2022, 5:56 AM EDT), https://perma.cc/R78T-FC3Q (explaining that Tiger Woods rejected an offer between $700 and $800 million from LIV).
8
Davis, supra note 7; see Doug Ferguson, PGA Tour Announces Major Changes in Response to Rival LIV Golf, L.A Times (Aug. 24, 2022, 8:25 PM PT), https://perma.cc/A4QG-A23Y.
9
See Scott Michaux, History Repeating Itself in LIV Golf Controversy, Glob. Golf Post (Aug. 27, 2022), https://perma.cc/6H2R-DRD3. See generally Professional Golf Tours , Pro. Golfers Career Coll., https://perma.cc/AT3D-PVP6 (last visited Mar. 29, 2024) (providing different pro golf tour names); What Does DP World Stand for in DP World Tour (European)?, Why We Love Golf , https://perma.cc/MLZ3-G97A (last visited Mar. 29, 2024) (explaining the DP World Tour’s origin).
10
See, e.g., Jack Moore, Racial Equality, Three-Pointers and Big Money: Why US Sports Need Rival Leagues, The Guardian (May 27, 2015, 6:00 EDT), https://perma.cc/AJJ5-V73A.
11
See, e.g., NFL Org Chart, The Org, https://perma.cc/8YTA-TU73 (last visited Mar. 29, 2024) (displaying the NFL’s current organizational structure).
12
See Cyntrice Thomas et al., The Treatment of Non-Team Sports Under Section One of the Sherman Act, 12 VA. Sports & Ent. L.J. 296, 307–09 (2013).
13
See id. at 297. See generally ITF: Role, Chairman, Structure, All You Need to Know, Tennis Majors (Mar. 15, 2020), https://perma.cc/N9LJ-GFG4 (providing background on the ITF’s role as a governing body).
14
Thomas et al., supra note 12, at 307.
15
See Seebald & Castleman, Legal Issues to Observe in the PGA Tour-LIV Golf Rivalry, Sports Bus. J. (July 11, 2022), https://perma.cc/C6K9-NW92.
16
PGA Tour Staff, PGA TOUR, DP World Tour, and PIF Announce Newly Formed Commercial Entity to Unify Golf, PGA Tour , https://perma.cc/9CL9-4EVZ (last visited Mar. 29, 2024); see Lillian Rizzo, PGA Tour Agrees to Merge with Saudi-Backed Rival LIV Golf, CNBC, https://perma.cc/Z4AR-KBWW (last updated June 7, 2023, 12:11 PM EDT).
17
See About LIV Golf, LIV Golf, https://perma.cc/VXR2-8VHX (last visited Mar. 29, 2024); Fergus Bissett, 9 Ways LIV Golf Is Different to the PGA Tour, Golf Monthly (Feb. 2, 2023), https://perma.cc/78CZ-HPHB.
18
Edward Sutelan, LIV Golf Rules, Explained: The Biggest Differences vs. PGA Tour Include Shorter Rounds, Teams & Shotgun Starts, Sporting News (Sept. 2, 2022), https://perma.cc/95H9-RZTQ.
19
Id. See generally LIV Golf, New Year, New Look . . . Welcome to LIV Golf League 2023, YouTube (Feb. 7, 2023), https://perma.cc/FUV6-X2BT (introducing LIV Golf’s team names in an advertisement).
20
See Nick Lomas, How Many Golfers Make the Cut?, Golfspan, https://perma.cc/P29C-RVUY (last updated Jan. 5, 2024).
21
See id.
22
See, e.g., What Is the PGA Tour Cut Rule, and How Is the Cut Line Determined?, Golf News Net, https://perma.cc/88Q6-ZDW5 (last updated Feb. 9, 2024) (explaining the PGA Tour’s cut rule).
23
See The LIV Golf Format, LIV Golf, https://perma.cc/AT4B-QXD7 (last visited Mar. 29, 2024); Sutelan, supra note 18.
24
See The LIV Golf Format, supra note 23.
25
Andy Hall, What Is a Shotgun Start in Golf? Could This Type of Format Make Golf More Fun to Watch?, AS, https://perma.cc/4JBS-5WD6 (last updated Sept. 2, 2022, 7:14 EDT).
26
Id.
27
See id.; The LIV Golf Format, supra note 23.
28
See Hall, supra note 25.
29
See Joe Rivera, Who Is Playing LIV Golf in 2023? Updated List of PGA Tour Defectors Includes Brooks Koepka, Phil Mickelson & More, Sporting News (Apr. 9, 2023), https://perma.cc/33LR-XJB5.
30
See Jack Rathborn, LIV Golf Players: Dustin Johnson, Cameron Smith and Full 2023 Field for Saudi-Backed Tour, Indep. (Mar. 17, 2023, 9:35 GMT), https://perma.cc/CF7G-QENG.
31
See Alan Shipnuck, An Inside Look at How the Money Works on LIV Golf, Golf Dig. (July 2, 2022), https://perma.cc/5S86-NQS8.
32
See Dave Merrill & Peter Blumberg, Saudi-Backed LIV Tour Makes PGA Winnings Look Like Chump Change, Bloomberg (Aug. 9, 2022), https://perma.cc/Y8RM-R7QE.
33
Blinder et al., supra note 1; see, e.g., Dustin Johnson, Off. World Golf Ranking, https://perma.cc/85TF-9QTW (last visited Mar. 29, 2024) (listing Johnson’s best finishes in golf tournaments). But see Bob Harig, The Wait Continues on LIV Golf’s Quest for Legitimacy Through World Ranking Points, Sports Illustrated, https://perma.cc/7QUE-6J6Z (last updated Nov. 2, 2022) (explaining that World Golf Ranking does not yet recognize LIV events).
34
Blinder et al., supra note 1.
35
See Rory Jones, Saudi Arabia’s Public Investment Fund Raises $17 Billion Loan from International Banks, Wall St. J. (Nov. 30, 2022, 10:55 AM ET), https://perma.cc/9VPT-SHN9. See generally PIF Program Is Directly Mandated to Realize Vision 2030, Including Second Pillar “Thriving Economy,” Pub. Inv. Fund, https://perma.cc/CJ7H-7APF (last visited Mar. 29, 2024) (providing the strategy of PIF to span across multiple industries).
36
Reem Abdalazem, Why Is LIV Golf Controversial? Trump’s Association with LIV; Barkley’s Possible Move, AS, https://perma.cc/EW86-U224 (last updated July 19, 2022, 8:38 PM EDT). See generally BBC News, Why the LIV Golf Series Is So Controversial, Youtube (June 9, 2022), https://perma.cc/GC55-KM7F (discussing the relevant controversies of LIV Golf).
37
Abdalazem, supra note 36.
38
See Eric Lichtblau & James Risen, 9/11 and the Saudi Connection: Mounting Evidence Supports Allegations That Saudi Arabia Helped Fund the 9/11 Attacks, The Intercept (Sept. 11, 2021, 7:00 AM), https://perma.cc/P7DM-SFCB.
39
See, e.g., Adam Wells, Rory McIlroy Says PGA, LIV Golf Feud Is ‘Out of Control,’ Likely ‘Irreparable,’ Bleacher Rep. (Oct. 26, 2022), https://perma.cc/H2L8-W8GU.
40
Abdalazem, supra note 36.
41
Tom Schad, LIV Golf, PGA Tour Merger Shines Spotlight on ‘Sportswashing,’ USA Today, https://perma.cc/ZR6D-EAG6 (last updated June 6, 2023, 4:05 PM ET).
42
See Sean Zak, PGA Tour Countersues LIV Golf: Here’s Where the Lawsuit Stands, Golf (Sept. 29, 2022), https://perma.cc/8WXA-9KG9.
43
See Rebecca Cohen & Tyler Lauletta, Legal Battles Around LIV Golf Intensify as a Report on Golfer Contracts Shows Restrictions, Requirements That Come with Big Paydays, Insider (Aug. 17, 2022, 12:40 PM EDT), https://perma.cc/C2J4-R6UK.
44
Order Granting in Part and Denying in Part Defendant PGA Tour, Inc.’s Administrative Motion to Consider Whether Another Party’s Material Should Be Sealed at 3–4, Mickelson v. PGA Tour, Inc., No. 22-CV-04486-BLF, 2022 WL 4004772 (N.D. Cal. Sept. 1, 2022); Andrew Beaton, LIV Golf’s Player Contracts Include Restrictions to Go with the Big Money, Wall St. J. (Aug. 17, 2022, 10:00 AM ET), https://perma.cc/Z7AT-8P6A; see Zak, supra note 42.
45
Tim Daniels, PGA Tour Says LIV Induced Contract Breaches with ‘Astronomical’ Money in New Lawsuit, Bleacher Rep. (Sept. 29, 2022), https://perma.cc/3H8A-A2GV; Zak, supra note 42.
46
See Adam Woodard, Report: LIV Golf Contract Outlines Everything from $1 Million Bonuses for Winning a Major to Interview and Apparel Rules, GolfWeek (Aug. 18, 2022, 3:37 PM ET), https://perma.cc/EX8X-7Q3V.
47
Beaton, supra note 44. See generally Ben Smith, Revealed: ‘Crazy’ Details Emerge of Big-Money LIV Golf Contracts, Golfmagic (Feb. 27, 2023), https://perma.cc/6NCS-7MQQ (listing tweets with restrictions from the LIV player contracts).
48
Woodard, supra note 46.
49
Woodard, supra note 46.
50
Joe Rivera, LIV Golf and PGA Tour Merger, Explained: Why Golf’s Rival Tours Joined Forces to‘Unify the Game,’ Sporting News (June 27, 2023), https://perma.cc/VKE9-6FLN [hereinafter Rivera, Merger Explained].
51
Justice Department and FTC Seek Comment on Draft Merger Guidelines, Press Release No. 23-778 Off of Pub. Affs. (U.S. Dep’t of Just. July 19, 2023), https://perma.cc/9JB3-VFUV; see Andrew Beaton & Louise Radnofsky, PGA Tour’s Deal with LIV’s Saudi Backers to Be Investigated by the Justice Department, Wall St. J., https://perma.cc/BF66-DE76 (last updated June 15, 2023, 7:32 PM ET).
52
See 15 U.S.C. §§ 1–2.
53
Id.
54
Ralph Gerstein & Lois Gerstein, Prosecution or Defense of Antitrust Actions Relating to College or Professional Sports, in 117 Am. Jur. Proof Of Facts, 3D 391 § 6 (Thomas Reuters 2024) (2010).
55
Id.
56
Robert S. Jeffrey, Beyond the Hype: The Legal and Practical Consequences of American Needle, 11 Fla. Coastal L. Rev. 667, 670–71 (2010).
57
Gerstein & Gerstein, supra note 54, § 11.
58
Antitrust Standards of Review: The Per Se, Rule of Reason, and Quick Look Tests, Bonalaw (Aug. 10, 2018), https://perma.cc/7KXA-GGMQ.
59
See id.
60
See Gerstein & Gerstein, supra note 54, § 11; see also Seebald & Castleman, supra note 15.
61
See Gerstein & Gerstein, supra note 54, § 11.
62
Nathaniel Grow, Regulating Professional Sports Leagues, 72 Wash. Lee L. Rev. 573, 589–91 (2015).
63
See id. at 575–76.
64
Gerstein & Gerstein, supra note 54, § 5.
65
Gerstein & Gerstein, supra note 54, § 5.
66
Thomas et al., supra note 12, at 307. See generally Chris Yates et al., Nonstatutory Labor Antitrust Exemption Risk in Sports Unions, Law360 (Dec. 5, 2022, 4:07 PM EST), https://perma.cc/DEA9-CHC8.
67
Jeffrey, supra note 56, at 671–72.
68
Am. Needle, Inc. v. Nat’l Football League, 560 U.S. 183, 197–98 (2010).
69
Gerstein & Gerstein, supra note 54, § 7.
70
Am. Needle, Inc., 560 U.S. at 186; see Jeffrey, supra note 56, at 681–82.
71
Am. Needle, Inc., 560 U.S. at 204; see Jeffrey, supra note 56, at 681–82.
72
See Thomas et al., supra note 12, at 307–09.
73
Avraham J. Sommer, The National Pastime of the American Judiciary: Reexamining the Strength of Major League Baseball’s Antitrust Exemption Following the Passage of the Curt Flood Act and the Supreme Court’s Ruling in American Needle, Inc. v. NFL, 19 Sports Laws. J. 325, 326 (2012). See generally Ari Kuhner Haber, Keeping the A’s in Oakland: Franchise Relocation, City of San Jose, and the Broad Power of Baseball’s Antitrust Exemption, 22 UCLA ENT. L. REV. 1, at 4–14 (2014) (discussing the three primary U.S. Supreme Court cases excluding baseball from antitrust laws).
74
See Sommer, supra note 73, at 326–27 (explaining MLB’s Reserve System and the Reserve Clause).
75
Sommer, supra note 73, at 327–28.
76
Sommer, supra note 73, at 327–28.
77
Sommer, supra note 73, at 328.
78
Sommer, supra note 73, at 328; see Fed. Baseball Club of Baltimore v. Nat’l League of Pro. BaseBall Clubs, 259 U.S. 200, 209 (1922).
79
Sommer, supra note 73, at 330–32; see Flood v. Kuhn, 407 U.S. 258 (1972); Toolson v. N.Y. Yankees, Inc., 346 U.S. 356, 357 (1953).
80
Sommer, supra note 73, at 332; see Allan H. Selig & Matthew J. Mitten, Baseball Jurisprudence: Its Effects on America’s Pastime and Other Professional Sports Leagues, 50 Ariz. St. L.J. 1171, 1184–86 (2018).
81
Sommer, supra note 73, at 333; see 15 U.S.C. § 26b.
82
See Sommer, supra note 73, at 333–34.
83
Baseball Advocates Want ‘Minor League Curt Flood Act’ Enacted, Sports Illustrated (July 7, 2022), https://perma.cc/9BQM-LLP3. See generally Andrew Simon, Explaining the MLB Farm System, Mlb (May 13, 2019), https://perma.cc/T95L-3LAH (providing background on MLB’s farm system).
84
See Michael Haupert, 2022 Legacy of the Antitrust Exemption, SOC’Y OF AM. BASEBALL RSCH., https://perma.cc/B7YH-XHZ2 (last visited Mar. 29, 2024).
85
Id.
86
See Sommer, supra note 73, at 333–34.
87
Sports Contracts – Basic Principles, Uslegal, https://perma.cc/3B38-S8C4 (last visited Mar. 29, 2024).
88
Id.
89
Ricky Clemons, Commentary: The Brewing Battle Between Pro Golfers and the PGA Tour, Cal. Bus. J., https://perma.cc/VY93-2PU3 (last visited Mar. 29, 2024).
90
See, e.g., Joel Anderson, 30 Strange Clauses in These Athletes’ Contracts, Go Banking Rates (Sept. 10, 2020), https://perma.cc/74DQ-R8RS (providing examples of unique athlete contract clauses).
91
E.g., AJ Neuharth-Keusch, NBA Free Agency Explained: Answering All Frequently Asked Questions, Usa Today (June 27, 2019, 6:00 AM ET), https://perma.cc/7DAT-WCKV (comparing restricted and unrestricted free agency); see Jonathan B. Goldberg, Player Mobility in Professional Sports: From the Reserve System to Free Agency, 15 Sports Laws. J. 21, 21–22 (2008).
92
E.g., Patrick Clarke, Curt Flood Act and Five MLB Players Who Changed the Free Agency Game, Bleacher Rep. (Dec. 11, 2010), https://perma.cc/L9E3-AAYW (providing examples of MLB moments that impacted free agency); see Selig & Mitten, supra note 80, at 1185–86.
93
E.g., Michael Macklon, How Labor Unions Changed Pro Sports, Investopedia, https://perma.cc/7PAX-FCL8 (last updated Jan. 11, 2023); see Goldberg, supra note 91, at 56.
94
See, e.g., NFL Player Contract, Sec, https://perma.cc/3JEA-UDPS (last visited Mar. 29, 2024) (providing an example of a player’s contract with a team).
95
Sports Contracts – Basic Principles, supra note 87.
96
See Clemons, supra note 89.
97
Clemons, supra note 89.
98
Clemons, supra note 89.
99
See Bhawika Bajaj, ‘Restrictions. But Louder’: Complete Details of LIV Golf Contract Revealed, Making Golf World Poke Fun at the Defectors, Essentiallysports (Feb. 25, 2023, 11:30 PM EST), https://perma.cc/7NN4-48FF.
100
See Blinder et al., supra note 1.
101
See Thomas et al., supra note 12, at 307; Gerstein & Gerstein, supra note 54, § 7. But see Damon Martin, UFC-WWE Merged Company Settles on New Name, Plans to Go Public in Late 2023, Mma Fighting (May 16, 2023, 8:00 PM EDT), https://perma.cc/58Z9-WG4Z (explaining the UFC–WWE merger announced in 2023).
102
See generally Blinder et al., supra note 1; Rivera, Merger Explained, supra note 50.
103
See, e.g., Wells, supra note 39; see also, e.g., Mark Schlabach, Rory McIlroy Says PGA Should Be Like NBA, Build Around Stars, Espn (Feb. 15, 2023, 5:14 PM EST), https://perma.cc/6QCW-W666 (explaining a player’s perspective on the outcome of the LIV–PGA Tour tension).
104
See Riley Hamel, Several Players Who Were Involved with the Players-Only Meeting at Last Year’s BMW Championship Feel ‘Betrayed and Manipulated,’ Goldweek (June 6, 2023, 4:53 PM EDT), https://perma.cc/B8G9-2EUT; see also Doug Ferguson, PGA Tour Commissioner Has ‘Heated’ Meeting with Players After LIV Golf Merger, AP NEWS (June 6, 2023, 7:06 PM EDT), https://perma.cc/EFB6-T9YD.
105
See Thomas et al., supra note 12, at 307–09.
106
See Michael Ricciardelli & Marty Appel, Public Says LIV Has Diminished PGA and Pro Golf; By More than 2 to 1 Margin, Say LIV Is Saudi ‘Sportswashing,’ Seton Hall Univ. (Nov. 4, 2022), https://perma.cc/78P2-HVTN. See generally PowerfulJRE, LIV Golf vs. the PGA – The Controversial Divide over the Future of Golf, Youtube (Jan. 12, 2023), https://perma.cc/J47Z-NL84 (speculating different perspectives on the LIV Golf controversy).
107
See Ricciardelli & Appel, supra note 106.
108
See Vishnu Mohan, What Is LIV & Why Is It Controversial?, Sportskeeda, https://perma.cc/MPV8-AWTN (last modified Aug. 25, 2022, 7:35 GMT).
109
Mohan, supra note 108; see Mark J. Burns, LIV Golf’s Few Fans Would Still Rather Watch the PGA Tour, MORNING CONSULT (Oct. 27, 2022, 5:00 AM ET), https://perma.cc/49F3-VVLU.
110
See John Cassidy, The Issues with the PGA Tour-LIV Merger Go Well Beyond Golf, New Yorker (June 13, 2023), https://perma.cc/A4BZ-NF4W.
111
See Sarbjit Singh, Influence of Sports on Human Society, Love Equals (July 16, 2019), https://perma.cc/4DTR-Z2EX.
112
See Thomas et al., supra note 12, at 307–09.
113
See Singh, supra note 111.
114
See Burns, supra note 109.
115
See generally Cornielius Jackson-Edwards, Why Fans Are So Important, Bleacher Rep. (Feb. 24, 2009), https://perma.cc/P3RG-MDET.
116
Id.
117
See id.
118
See Tom Gorman, LIV Golf Effect: The Incredibly Shrinking PGA Tour, Pro golf Wkly. (July 27, 2022), https://perma.cc/J993-5NV3.
119
See Blinder et al., supra note 1.
120
See Blinder et al., supra note 1.
121
See Blinder et al., supra note 1.
122
See Joel Beall, Can Players Be Banned Legally from the PGA Tour for Joining the Super Golf League?, Golf Dig. (Feb. 4, 2022), https://perma.cc/8VHD-CPD3; Mike Chiari, PGA Tour, LIV Golf, DP World Tour Agree to Merge and End All Pending Litigation, Bleacher Rep. (June 6, 2023), https://perma.cc/ESM7-5GUS.
123
Tim Schmitt, LIV Golf’s Anti-Trust Lawsuit Against PGA Tour Handed Severe Blow in Federal Court, Golfweek (Feb. 17, 2023, 9:32 AM ET), https://perma.cc/7SKG-8WA7.
124
Alex Miceli, As the PGA Tour vs. LIV Golf Antitrust Case Drags on, Is a Settlement the Endgame?, Sports Illustrated (Jan. 25, 2023, 3:01 PM EST), https://perma.cc/A8MA-YP35; Schmitt, supra note 123.
125
Joel Beall, PGA Tour Secures Major Victory in Antitrust Case Against LIV Golf, Gold Dig. (Feb. 17, 2023), https://perma.cc/7688-BU9U; James Colgan, Judge Deals LIV Golf Major Legal Blow in PGA Tour Suit, Golf (Feb. 17, 2023), https://perma.cc/Z27Z-6FYN.
126
Miceli, supra note 124.
127
See generally Timothy S. Bolen, Singled out: Application and Defense of Antitrust Law and Single Entity Status to Non-Team Sports, 15 Suffolk J. Trial & App. Advoc. 80, 80–82 (2010) (suggesting that non-team entities should raise the single entity defense).
128
Id. at 80–82, 94.
129
Thomas et al., supra note 12, at 307–08.
130
Am. Needle, Inc. v. NFL, 560 U.S. 183, 195 (2010).
131
Id. at 195–96; see Bolen, supra note 127, at 86.
132
See American Needle, Inc., 560 U.S. at 196–97.
133
Id. at 195–96; see Michael McCann, Private: American Needle v. NFL and the Single Entity Defense: Sports Law Takes Center Stage, Am. Const. Soc’y (Jan. 13, 2010), https://perma.cc/HGB6-FMXW.
134
560 U.S. at 196–97, 204.
135
Bolen, supra note 127, at 86.
136
Hicks v. PGA Tour, Inc., 897 F.3d 1109, 1113 (9th Cir. 2018). See generally Robert A. Harris, Bib Brouhaha: Golf Caddies’ Lawsuit Challenges PGA Tour’s Compensation and Benefit Structure, 7 ELON L. REV. 527, 527–29 (2015) (discussing background of Hicks case).
137
897 F.3d at 1120–21.
138
Bolen, supra note 127, at 94–97. Compare, e.g., Deutscher Tennis Bund v. ATP Tour, Inc., 610 F.3d 820, 827 (3d Cir. 2010) (explaining parties’ arguments regarding single entity defense jury instructions) with, e.g., Blalock v. Ladies Pro. Golf Ass’n, 359 F. Supp. 1260, 1266–68 (N.D. Ga. 1973) (holding LPGA’s conduct was per se illegal with no mention of a single entity defense).
139
See Bolen, supra note 127, at 97–98.
140
See Bolen, supra note 127, at 97–98.
141
Bolen, supra note 127, at 94–95.
142
See Elliott Heath, Who Owns the PGA Tour?, Golf Monthly (Jan. 6, 2023), https://perma.cc/77U4-4L4P.
143
See Miceli, supra note 124.
144
See, e.g., Mike Hall, PGA and DP World Tours Strengthen Alliance Amid LIV Golf Threat, Golf Monthly (June 28, 2022), https://perma.cc/F44L-AJR7.
145
Heath, supra note 142.
146
Hall, supra note 144; Heath, supra note 142.
147
See Am. Needle, Inc. v. NFL, 560 U.S. 183, 195–96 (2010).
148
See id.
149
See id. at 196–97.
150
See Sherman Antitrust Act, Corp. Fin. Inst., https://perma.cc/2AM6-GBSF (last visited Mar. 30, 2024).
151
See Beall, supra note 122. But see Bob Harig, LIV Golfers Will Not Receive Official World Golf Ranking Points at Debut Event in Mexico, Sports Illustrated (Feb. 17, 2023, 7:01 PM EST), https://perma.cc/T9XW-UXP9 (indicating that LIV players will not earn OWGR points, thus increasing the difficulty of qualifying for the four major tournaments); see, e.g., Mike McAllister, Masters to Allow LIV Golfers to Compete; 16 Currently Qualified, LIV Golf (Dec. 20, 2022), https://perma.cc/9WUF-94UK.
152
See Miceli, supra note 124.
153
See Am. Needle, Inc. v. NFL, 560 U.S. 183, 195–96 (2010).
154
See id.
155
See, e.g., Luke Archer, First Draft Pick or Benched Indefinitely? The Future of the Single-Entity Doctrine in Sports Antitrust, 30 Marq. Sports L. Rev. 169, 175–76 (2019) (providing examples of sports organizations asserting the single entity defense).
156
See, e.g., Michael McCann, In Pursuit of Free Agency, Players Could Challenge MLS as Single Entity, Sports Illustrated (Jan. 26, 2015), https://perma.cc/66W6-FX5F (hypothesizing about how a court might analyze a single entity defense by MLS).
157
See David I. Gelfand & Linden Bernhardt, Vertical Restraints: Evolution from Per Se to Rule of Reason Analysis, ABA Antitrust Section Fall F., Nov. 16, 2017, at 1, 1, https://perma.cc/6GP3-XWHW.
158
Grow, supra note 62, at 590.
159
Grow, supra note 62, at 590.
160
See generally Defendant PGA Tour, Inc.’s Opposition to TRO Plaintiffs’ Motion for a Temporary Restraining Order at 18–20, Mickelson v. PGA Tour, Inc., No. 5:22-CV-04486-BLF (N.D. Cal. Aug. 8, 2022) (discussing several defenses to the plaintiffs’ antitrust allegations) [hereinafter PGA Tour’s Opp’n].
161
Id.
162
Id. at 19.
163
See id. at 5–6, 18–20.
164
See id. at 6, 18; James Colgan, The LIV Golf-CW TV Deal Is Official. Here Are 9 Things We Know, Golf (Jan. 19, 2023), https://perma.cc/6LB5-WKQU (explaining LIV Golf’s agreement with the CW Network).
165
See PGA Tour’s Opp’n, supra note 160, at 6, 18.
166
See Complaint – Jury Trial Demanded at 1, 3–4, Mickelson v. PGA Tour, Inc., No. 3:22-CV-04486-BLF (N.D. Cal. Aug. 3, 2022) [hereinafter Plaintiffs’ Compl.].
167
See id. at 22–24; Grow, supra note 62, at 590.
168
Plaintiffs’ Compl., supra note 166, at 22–24. See generally Ryan Bourne, Monopoly and Monopsony in the U.S. Economy – Is Big Business Too Powerful? (Part 1), Cato Inst. (Apr. 11, 2022, 2:57 PM), https://perma.cc/NGJ6-BC3U (explaining the difference between a monopoly and a monopsony).
169
See Plaintiffs’ Compl., supra note 166, at 33.
170
Gabrielle Herzig, DP World Tour Following PGA Tour in Guaranteeing Money to Players, Sports Illustrated (Nov. 3, 2022, 12:03 PM EDT), https://perma.cc/WQ6V-ES9D.
171
Compare Plaintiffs’ Compl., supra note 166, at 36, with PGA Tour’s Opp’n, supra note 160, at 18–19.
172
See Grow, supra note 62, at 590; see also PGA Tour’s Opp’n, supra note 160, at 19 n.7.
173
See What Does the Shock PGA Tour-LIV Merger Mean for Golf?, Al Jazeera, https://perma.cc/36AM-A3HA (last updated June 7, 2023, 4:18 PM GMT).
174
See, e.g., Nick Piastowski, ‘Their Tour Is Meaningless’: Nick Faldo Rips LIV Golf, Their Ratings, Greg Norman, Golf (Jan. 26, 2023), https://perma.cc/BY8V-VNX2; Erin Walsh, PGA Tour’s Adam Scott: I Don’t See LIV as ‘Pure Evil for the Game of Golf,’ Bleacher Rep. (Sept. 30, 2022), https://perma.cc/7BXG-LQLV.
175
See Will LIV Golf Overtake the PGA Tour?, Plugged in Golf (Aug. 1, 2022), https://perma.cc/4YQN-43CZ.
176
See Bolen, supra note 127, at 94–95; Sommer, supra note 73, at 333–34.
177
See Grow, supra note 62, at 589–90.
178
See, e.g., Jessica Marksbury, PGA Tour-LIV Golf Merger: 10 Most Shocking Revelations We Learned So Far, Golf (June 6, 2023), https://perma.cc/D3LP-49WY (providing examples of how the merger affects the sport of golf as a whole); see Paul Sullivan, For 2022, LIV Golf Was the Story, N.Y. Times (Dec. 9, 2022), https://perma.cc/M4LX-3JTM.
179
PGA Tour Staff, supra note 16.
180
E.g., Sara Morrison, Is the PGA Tour-LIV Golf Merger Even Legal?, VOX, https://perma.cc/6GVB-A4DG (last updated June 15, 2023, 2:02 PM EDT) (discussing other merger attempts that recently failed, including American Airlines and JetBlue).
181
Diane Bartz et al., US Justice Department to Investigate PGA Tour-LIV Golf Pact, Wall Street Journal Reports, Reuters (June 15, 2023, 7:03 PM EDT), https://perma.cc/Q94S-88D8.
182
See Aimee Levitt, Will the PGA Tour-LIV Golf Merger Pass the Antitrust Test?, Kellogg Insight (July 1, 2023), https://perma.cc/HC88-ECKD (providing insights from Professor Mark McCareins).
183
Id.
184
Bajaj, supra note 99.
185
See Woodard, supra note 46.
186
Woodard, supra note 46.
187
Alex Miceli, More LIV Golf Regulations Revealed in New Court Filing, Including Player Suspensions and Media Rights, Sports Illustrated, https://perma.cc/AK9D-PGGY (last updated Sept. 14, 2022).
188
See Darren Kane, The Devil’s in the Detail of the LIV Golf Contracts, Sydney Morning Herald (Sept. 2, 2022, 11:40 AM), https://perma.cc/A6X8-WS2H.
189
See Miceli, supra note 187.
190
John Waddington, Are PGA Players Under Contract?, Golf Educate (Oct. 22, 2022), https://perma.cc/R4K4-WH9H.
191
See id.
192
Phil Mickelson and Dustin Johnson Among Players Suspended from PGA Tour over LIV Golf Involvement, Sky Sports, https://perma.cc/37AW-KPBB (last updated June 10, 2022, 6:42 AM UK).
193
Jorge Candamo, What LIV Golf Players Were Deemed Ineligible for the FedEx Cup Playoff?, AS, https://perma.cc/N8QH-VRLM (last updated July 27, 2022, 8:53 EDT).
194
Compare Selig & Mitten, supra note 80, at 1184–86 (discussing the parameters of the Reserve Clause), with Jack Stebbins & Jessica Golden, Mickelson, DeChambeau and Other LIV Golfers File Antitrust Lawsuit Against PGA Tour over Suspensions, CNBC, https://perma.cc/H528-2H28 (last updated Aug. 3, 2022, 6:30 EDT) (explaining that PGA Tour’s restrictive policies limited LIV’s ability to compete for players).
195
See Steve King, The Worker Classification Debate Comes to Professional Golf, Small Bus. Labs (June 9, 2022, 1:00 AM), https://perma.cc/88WM-9JWG.
196
See PGA Tour’s Opp’n, supra note 160, at 1.
197
See PGA Tour’s Opp’n, supra note 160, at 1.
198
Plaintiffs’ Compl., supra note 166, at 89.
199
See Timothy Davis, Balancing Freedom of Contract and Competing Values in Sports, 38 S. Tex. L. Rev. 1115, 1134–36 (1997).
200
See Goldberg, supra note 91, at 21–22.
201
See Jesus Jiménez, PGA Tour Accuses LIV Golf of Interfering with Its Contracts, N.Y. Times (Sept. 29, 2022), https://perma.cc/E6UK-XWWU.
202
See Dan Rapaport, Well Lookie Here, We’ve Got Our First ‘Free Agency’ Move in LIV Golf, Barstool Sports (Nov. 1, 2022, 5:20 PM), https://perma.cc/4RKG-952G. But see Adam Schupak, ‘Free Agency’ in Golf Is Not Everything Greg Norman Dreamed It Would Be, Golfweek (July 5, 2022, 5:57 PM ET), https://perma.cc/23NF-GUFE.
203
See Alex Myers, Free Agency Has Come to Pro Golf, and LIV’s Top Team Has Reportedly Made a Big Move Already, Golf Dig. (Nov. 2, 2022), https://perma.cc/X7NN-292F; Mark Schlabach, Greg Norman on LIV’s First Season, Free Agency and His Relationship with the PGA Tour, ESPN (Nov. 2, 2022, 7:24 PM ET), https://perma.cc/5MM2-J574.
204
See Schlabach, supra note 203 (explaining CEO Greg Norman’s goals of free agency and the franchise model).
205
See Alex Kirchner, How the PGA Tour Is Beating Back Its Saudi Revolt, SLATE (Feb. 21, 2023, 4:58 PM), https://perma.cc/KA6V-BXP6.
206
See Jared Doerfler, The $153 Million Question: Breaking Down the PGA Tour’s Response to LIV Golf, Golf Dig. (Jan. 18, 2023), https://perma.cc/K8HD-ZBSF; Bob Harig, Exclusive: Phil Mickelson Discusses PGA Tour’s Response to LIV: ‘I’m Happy That Top Players Are Being Listened to,’ Sports Illustrated (Sept. 1, 2022, 10:52 PM EDT), https://perma.cc/NL9G-VQNX.
207
See Tyler Zimmer, LIV Golf’s Charter Jet for Players, Caddies Looks Like a Wild Scene, Golf (July 7, 2022), https://perma.cc/E7UV-RHQR.
208
See, e.g., Ryan Lavner, Cameron Smith Outlines Reasons Why He Left Tour for LIV Golf, Golf Channel (Aug. 31, 2022, 7:23 PM), https://perma.cc/4CCG-UKSN.
209
About Us, PGA Tour, https://perma.cc/D7SP-EA69 (last visited Mar. 30, 2024); Justin Shaw, Trump National to Host 2023 LIV Championship, Sports Travel (July 10, 2023), https://perma.cc/XG96-HVN7.
210
How Many Tournaments Do PGA Players Play Per Year?, Rookie RD., https://perma.cc/U3MJ-7PXJ (last updated Sept. 8, 2023); see What Is the PGA Tour Cut Rule, and How Is the Cut Line Determined?, Golf News NET (May 14, 2021), https://perma.cc/R6BY-49MP.
211
See Philip Murdock, The Big Differences Between the LIV and PGA Tours, FHC Sports Rep. (Nov. 27, 2022), https://perma.cc/4QEW-FPBW.
212
See Harig, supra note 206.
213
Davis, supra note 7.
214
See, e.g., Adam Woodard, ‘Welcome to the Future’: LIV Golf Takes Credit for PGA Tour Schedule Changes, Golfweek (Mar. 1, 2023, 3:13 PM ET), https://perma.cc/K5BM-7F8H.
215
See Kyle Porter, PGA Tour, LIV Golf Merger: Why It Happened and What Comes next with Players, Fans Left Reeling, CBS Sports (June 7, 2023, 1:01 AM ET), https://perma.cc/2TWL-PR7H.
216
See, e.g., Patrick Rishe, Why the Merger of the PGA Tour and LIV Golf Is Great for Golf, Marketscale (June 6, 2023), https://perma.cc/WN33-6XM7.
217
See Miceli, supra note 124.
218
See, e.g., Abigail Weinberg, How the Most Powerful Union in Pro Sports Just Got Stronger, Mother Jones (Sept. 22, 2022), https://perma.cc/9EYB-RRCV (providing an example of a successful players union).