The turning of the calendar to 2023 allows us to reflect on the past 12 months and what could be in store for the next 12. Musings of that sort undoubtedly are happening at the headquarters of the PGA Tour and rival LIV Golf. Their legal tangle began in August, intensified through a series of skirmishes by year end, and now puts them on a collision course for a trial set for Jan. 8, 2024.
There are lawsuits and then there are lawsuits. This one, an antitrust claim made by LIV Golf in U.S. District Court in Northern California, is a unicorn. By year end, the case generated 190 filings and orders, an extraordinary figure for litigation of three-plus months’ duration. This year started out with a bang with 30 more filings and rulings over a 10-day period. Both combatants have spent a motherlode of attorneys’ fees in what each likely views as a fight to the death.
Who is winning?
That depends on how one defines success. Aside from procedural rulings in the fall that favored the PGA Tour, the court has yet to weigh the evidence or determine the merits of the case.
The case is in what is called “the discovery process,” whereby each side has the opportunity to seek documents and testimony from each other and witnesses about relevant issues in the litigation. Suffice it to say, however, at this point the PGA Tour has LIV back on its heels in the discovery process.
The PGA Tour is aggressively pursuing discovery from Saudi Arabia’s Public Investment Fund, which is bankrolling LIV, and the fund’s governor, Yasir Al-Rumayyan, on the theory that they control LIV and player contracts. In turn, LIV, the PIF and Al-Rumayyan have vehemently resisted discovery on the basis of foreign sovereign immunity as an organ of the Saudi state (while Al-Rumayyan submitted a court affidavit that he would be exposed to a 20-year prison term under Saudi law if he were to disclose classified information in discovery). These issues were subject to a court hearing on January 13, in which it was revealed that the fund owns 93 percent of LIV and pays 100 percent of the costs associated with its events. The next 14 days are likely to see a ruling on the contours of what discovery must be produced.
Where will this end?
Reading the tea leaves is fraught with difficulty, but golf fans are apt to see LIV forced to fish or cut bait in a legal sense. Why? Because the PGA Tour seems dead set on going the distance as opposed to settling out of court. With trial less than a year away, expect the PGA Tour to push to finish discovery and position the case to defeat LIV’s antitrust claims and win its counterclaims against its rival. Conversely, LIV may try to slow the process and buy time.
So, what might that look like?
Per the court’s scheduling order, fact discovery with witnesses and parties must be completed by March 3. Antitrust claims are heavily dependent on expert testimony, and experts must be disclosed starting on March 10. As is the case with all lawsuits, the court has required the parties to talk about possible settlement and report back on their efforts by May 1. Most expect that resolution is near impossible. Each side can try to pre-empt a trial by way of what is called a motion for summary judgment; if that type of motion is filed, the court sifts through the uncontested evidence and then determines if either side is entitled to win without a trial based on the evidence accumulated during discovery.
Expect the PGA Tour to roll out an array of renowned antitrust-expert academics to opine of the lack of merit to LIV’s case theories, and then press that strategy with motions for summary judgment, which may result in a partial win or a fracturing in part of LIV’s case. Whatever claims might be left would then go to trial.
Maatman, a class-action defense attorney, is a partner at Duane Morris LLP in Chicago and New York, and an adjunct professor of law at Northwestern University School of Law.
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