Your turn: Calling the PGA Tour's bluff

Opinion: Calling the PGA Tour’s Bluff

Bluffing and misdirection are commonplace in professional sports, and one of the most brazen bluffs is unfolding in the professional sports world today: The PGA Tour’s claim it will impose a lifetime ban on any professional golfer who associates with LIV Golf, the new league led by all-time great Greg Norman.

Let’s be clear, a lifetime ban is never going to happen. PGA Tour Commissioner Jay Monahan is no doubt being advised by high-priced lawyers who – if they are worth even a fraction of their lofty rates – have surely advised him of the legal consequences that will blow up in the PGA Tour’s face if it imposes lifetime bans on independent contractors who choose to associate with a competitor.

Most notably, imposing a lifetime ban on players would trigger a slam-dunk antitrust lawsuit by Norman’s upstart league, the players, or even federal antitrust enforcers who have made it a priority to protect workers’ ability to ply their trade for whomever they please without interference from corporate giants.

The U.S. Supreme Court made clear in Lorain Journal Co. v. United States in 1951 that it is an antitrust violation for a monopolist to attack competition by coercing third parties – such as independent contractors – not to deal with a rival. For example, in the 1940s and 1950s, the NFL blacklisted players for playing with rival leagues. One of those players, William Radovich, asserted an antitrust claim against the NFL and its commissioner based on his ban. The NFL claimed it was immune from the antitrust laws under baseball’s antitrust exemption, but when the Supreme Court rejected that defense, the NFL quickly settled Radovich’s claim.

Monahan’s lawyers have surely informed him that the antitrust laws have real teeth. They have also likely informed him that he might potentially be personally liable for antitrust damages if he is found to have overstepped his role—as Commissioner of a non-profit organization whose Articles of Incorporation state that its purpose is “[t]o promote the common interests of professional tournament golfers”—by imposing lifetime bans on professional golfers for the offense of playing in professional golf tournaments that compete with the tour that pays Monahan’s multimillion-dollar salary.

An attempted ban could also cost the PGA Tour its tax-exempt status. As the high court explained in National Muffler Dealers Association v. United States, the tax exemption “is not available to aid one group in competition with another within an industry.” A lifetime ban on all players who affiliate with a competing tour is difficult to square with this requirement.

Some have suggested Monahan could impose a ban on golfers pursuant to PGA Tour regulations that authorize the commissioner to impose punishments on golfers who engage in “conduct unbecoming a professional golfer.” But playing in a tournament isn’t “conduct unbecoming” for a professional golfer. It’s his job.

Unless, that is, Monahan’s interpretation of the rules is that playing for any tour that competes with the PGA Tour is forbidden. But that interpretation puts the PGA Tour squarely into the antitrust and tax-exemption buzzsaw.

If Monahan – the beneficiary of $7.4 million in payments in 2018, the last year for which public disclosures are available – dishes out lifetime bans to players for the offense of trying to make the best living possible for themselves and their families, that would undermine any remaining trust the players have in the PGA.

The opportunity for Norman’s league arose in the first place because professional golfers are recognizing they are paid far less than what they are worth and are dissatisfied with the current system.

Recent statements by golfers to the press—even those who assert loyalty to the PGA Tour – make clear they take great pride in their independent contractor status, and are unlikely to react well to efforts by the PGA to claim total control over them.

There are no recent statements from Monahan himself threatening to ban players. And when Monahan was confronted with 30 PGA Tour players requesting releases for the Saudi International – which is affiliated with LIV Golf – he backed down and granted them.

Nonetheless, talk of lifetime bans still wafts about in the press and apparently is whispered to players and their agents. The PGA Tour doubtless hopes the lingering effect from Monahan’s threatened ban will dissuade golfers from signing up with Norman’s tour. But it is difficult to imagine this bluff will cause an entire industry to cower in fear.

Also worth noting: Greg Norman himself proudly proclaims that he is a lifetime member of the PGA Tour. The clearest sign that the PGA Tour’s threat is no more than a bluff.

Alden Abbott is the former general counsel of the Federal Trade Commission. He wrote this for InsideSources.com.

This article originally appeared on Deming Headlight: Your turn: Calling the PGA Tour's bluff