The PGA Tour Tells On Itself With LIV Golf Countersuit
2:34 PM EDT on September 29, 2022
Tuesday afternoon another four LIV Golf players dropped out of the antitrust suit originally filed against the PGA Tour back on Aug. 3. The complaint is steadily consolidating under LIV Golf, which entered the suit in an amended complaint filed on Aug. 26 and is now one of four remaining plaintiffs, accusing the PGA Tour of strong-arming players, threatening and blacklisting third parties, and in general of orchestrating a "plan to defeat competition," which LIV Golf says has "unlawfully" damaged its "contractual and prospective business relationships." Wednesday the PGA Tour answered the amended complaint and filed a counterclaim, accusing LIV Golf of tortious interference for using "significant sums of upfront cash," and what it characterizes as "false representations," to induce players to breach existing contracts with the PGA Tour.
Squaring this stuff with the real world can be both a little bit bewildering and a little bit enlightening. There's a membership organization made up of independent contractors, and that organization operates a series of events. If its members want to skip any of those events to sit around and play video games, that's cool. If those members want to skip any of those events to instead participate in events operated by a competing outfit, they first have to get permission from their membership organization. So far this all seems like normal and broadly fair business shit, if a little restrictive.
Along comes a competing outfit. This outfit offers more money for participating in its events, but it's not as chill about its contractors skipping events—if you want the outfit's money, you have to participate in all its events, many of which conflict with the events of the membership organization from which it hopes to recruit players. It is, in that sense, more restrictive and less comfortable with competition, but it also compensates workers better for their participation. So players go to the membership organization and ask for permission to skip some of its events in order to play in the events of the competing outfit. The membership organization exercises its prerogative and declines to give permission. This is slightly dickish but is still well within the bounds of what most people would consider normal business shit. It would be damaging to the interests of the membership organization for their members to adhere to an exclusivity arrangement with a competing outfit, one that would require that these members skip an as-yet-undetermined number of scheduled events per year. And anyway existing contracts give the membership organization the right to withhold permission from members to participate in competing events, and that's what they've done. It's getting a little skin-crawly, but is still broadly normal.
A few of these players feel that the money and terms with the competing outfit are too appealing to pass up, and decide that with or without permission from their membership organization, they're going to play in the competing events. These people are independent contractors, this type of decision seems well within their rights. The membership organization decides that this is a violation of membership terms, and suspends the memberships of these players. I'm double-checking the normal-o-meter here and still getting a positive reading. Everyone is doing fine right now. Normal as hell.
Now, please forget for a moment that 11 of these players turned around and sued the membership organization, and forget that the competing outfit joined the lawsuit and accused the membership organization of cramping its business. Also, uh, please forget for the time being that the competing outfit is entirely owned and operated by a violent and oppressive monarchy that less than five years ago ambushed and murdered a journalist and dismembered his corpse, because he criticized said monarchy. A new outfit came along and offered attractive terms to independent contractors, and those contractors decided those terms were worth abandoning existing arrangements, and as a result the organization with which they'd made those arrangements decided to boot them out of its ranks. Where this would all perhaps cease to be normal would be the moment that the membership organization pulls the competing outfit into court and seeks damages and relief for the hideous crime of ... offering more attractive terms to independent contractors, for professional services.
Restrictions on the movement of workers suck, categorically. But there's a difference both in degree and in kind between terminating a relationship with a worker for sidelining with a competitor and suing that competitor for having a business model that is more attractive to a segment of your workforce, and that is not built to be maximally accommodating of your product. Both moves are hostile to competition and to workers, but the latter is, like, formally anti-competitive. Embedded in the PGA Tour's counterclaim is an argument in support of LIV Golf's antitrust complaint: It is the PGA Tour's position that offering favorable terms of engagement to independent contractors in a way that frustrates its existing business is a legally actionable misdeed. The PGA Tour can credibly defend itself from antitrust accusations when all it's done is exercise its right to decide who gets to be an active member of its organization. When the PGA Tour says it deserves compensation from a competitor who offered favorable terms to workers, it has gone a long way toward arguing the case of its detractors.
Whether that's how it shakes out in court is another matter. And then there is the fact that LIV Golf is such a powerfully repulsive enterprise, adding religious totalitarianism, globe-tilting fossil fuel wealth, the enthusiastic embrace of MAGA fascists, and assassination to a pastime and profession that all on its own is already extremely ethically dubious. It's easy to think of LIV Golf as a bad guy, because it is, and to therefore think of the PGA Tour as a heroic proxy, because the two are engaged in an existential war. But Wednesday's countersuit (embedded below) is an illuminating reminder that however this conflict shakes out in the end, there are no good guys.