PGA Tour and LIV golfers disagree over whether the public and journalists should have access to LIV player contracts, LIV tournament rules, and other potentially sensitive material from a federal antitrust lawsuit filed by Phil Mickelson and 10 other LIV golfers.
Both parties recently filed briefs suggesting that Presiding Judge Beth Lasbon Freeman consider sealing the documents as trade secrets and related confidentiality classifications.
Earlier this month, Freeman denied a request for a restraining order that would allow three of 11 golfers, Talor Gucha, Hudson Swofford and Matt Jones, to play in the FedEx Cup playoffs. Golfers’ attorneys say they have “voluntarily prepared” copies of LIV players’ contracts, rules and regulations at the Tour’s request.
According to the lawyers, some court documents should be sealed “because they contain highly confidential and business-critical material that could damage (Gooch, Swafford and Jones’) financial prospects if made public.” Player contracts are portrayed as private and governed by confidentiality agreements, which are described as “general in the context of sponsorship agreements or independent contractor remuneration agreements”.
Golfers also argue that revealing the value and various features of their LIV deals could damage their ability to negotiate with “future golf tournament providers” and “reduce their ability to secure better sponsorship and promotional deals.” They see it as unfair if the public finds out about their deals while other golfers can keep their privacy.
Golfers also object to the disclosure of LIC invitation rules on the grounds that these rules are “in the early stages of development” and are “part of an evolving business model”. Golfers fear that disclosure could undermine the LIV and could allow the “PGA Tour or others” to harm players filing suits and the LIV or cause confusion in the market.
The main concern for golfers is that filing a claim, as opposed to arbitration, mediation or other private forums for resolving disputes, usually means recognizing the public’s right to access court documents. Taxpayer-funded courts are public places.
Lawyers for the PGA Tour emphasize this point. Tour does not object to Freeman sealing individually agreed financial terms or redacting personal identification information. But he insists that LIV golfers’ privacy requirements are so broad that they could “set an untenable precedent that would make it difficult for this case to be taken up in a public forum.”
To this end, the Tour objects to the censorship of provisions in player agreements with LIV “which have nothing to do with [golfers’] compensation” or do not deserve to be concealed. These provisions include the use of social media and logo products by LIV golfers while participating in LIV activities. They also deal with clothing obligations, playing obligations at LIV events, the ability to participate in competitive events, the ability of LIV to impose fines on players or impose other remedies for rule violations, the length of LIV contracts, and the identity of LIV lawyers.
Tour argues that much of what golfers want to seal has already been revealed by their lawyers in court, disclosed by journalists, or has no recognized justification for confidentiality. For example, the Tour questions how the rules and regulations of the LIV tournaments can be considered trade secrets if LIV golfers do not treat the rules and regulations of the Tour in the same way. Golfers, the tour says, “may not file a public complaint that repeatedly cites the rules of the Tour and attaches them as evidence, and at the same time asks the court to keep the relevant LIV rules from public view as an alleged trade secret.”
The tour also insists that much of what golfers are trying to defend consists of material “of direct relevance to the core issues of the litigation” that focuses on the LIV golfers’ contention of what, by controlling where and how elite golfers market their services, the PGA Tour has violated antitrust laws. Lawyers for Tour say the LIV contracts, which they say are more restrictive than tour contracts, “go directly into the plaintiffs’ antitrust claims” because they shed light on market competition.
Tour lawyers also cite a transcript of a hearing earlier this month in which golfers’ lawyers alleged that the Tour misunderstood or misrepresented the terms of the LIV contracts and assured Gooch, Swofford and Jones would not “show up in their LIV gear” at Tour events. “Now,” says Tur, “golfers are “seeking to secure the provisions of the LIV agreements regarding the official statement of their attorney.”
As Freeman considers the competing arguments for the seal, the case is moving along a long trajectory. The nine-day jury trial is currently due to begin on January 8, 2024 at the Robert F. Peckham Federal Building and U.S. Courthouse in San Jose. The trial date could be delayed, which is entirely possible given that both parties have hired large and costly legal teams that are likely to file numerous pre-trial and disclosure motions. The loser in court is likely to appeal to the Ninth Circuit, leading to additional years of litigation. Both parties can settle the dispute out of court at any time.
It appears that the impact of the LIV has already made the elite golf market more competitive and dynamic. Last week, PGA Tour commissioner Jay Monahan pledged to increase compensation, prizes and other perks for golfers, while the tour joined Tiger Woods and Rory McIlroy in creating a high-tech league.