The PGA Tour is screwed.
That is the opinion of two prominent lawyers who specialize in noncompete laws to whom The Post spoke on Friday regarding what might become of the battle between the PGA Tour and the players who’ve defective to play in the new Saudi-backed LIV Golf Invitational Series if it were to reach a courtroom.
On Thursday, the day of the opening round of LIV Golf’s inaugural event, PGA Tour commissioner Jay Monahan announced the suspension of 17 players competing in that tournament outside of London — including Phil Mickelson and Dustin Johnson — stating they’re no longer eligible to play any PGA Tour-sanctioned events.
Both attorneys with whom The Post spoke believe those suspensions will be short-lived — particularly if the players take legal action against the PGA Tour.
“I don’t think the PGA Tour has a leg to stand on,” said John Lauro, a New York- and Florida-based attorney.
“The PGA Tour is basically in an untenable position,” said Jonathan Pollard, an attorney based in Fort Lauderdale, Fla. “They’re going to have to drop their opposition to this because nobody is going to want to watch the PGA Tour if these top players aren’t playing. Then that’s going to hit their bottom line, it’s going to hit their advertising revenue, and ultimately the market is going to force them to come to the table and make a deal.
“The PGA Tour is not going to stand by and back permanent or prolonged suspensions of Phil Mickelson, Dustin Johnson, Sergio Garcia. They’re going to back off these suspensions. It would destroy their brand. It would destroy their business.”
Both Lauro, a former federal prosecutor in the Eastern District of New York, and Pollard agreed that the PGA Tour’s biggest problem if players opt to sue is that it cannot hold the players back for reasons of “confidential information or trade secrets, protectable customer relationships or an extraordinary investment in the employee’s education or training.”
“Those are the three biggest and most commonly litigated legitimate-business interests upon which a court could enforce a noncompete agreement,” Pollard said. “And, if you look at this situation with the PGA Tour, none of those interests is even remotely present.”
Pollard added that the PGA Tour “is not going to be able to say, ‘We need to do this [suspend players] to protect trade secrets, we need to do this to protect customer information, we need to do this to protect our investment in these players.’ ”
Lauro said he recently tried a case similar to the PGA Tour situation, but was working on behalf of the company versus the employee.
“I was representing a company like the PGA Tour, and we were enforcing a noncompete, but we had justification going for us in terms of confidential information, and the court upheld it,” Lauro said. “We were able to show confidential proprietary information that was being preserved. The PGA Tour can’t possibly do that.”
Pollard, whose practice, Pollard PLLC is in Florida where the PGA Tour is headquartered, has particular knowledge of the state’s laws.
“Under Florida law, if the PGA wanted to enforce this sort of restriction [suspensions] it would have to pursue a lawsuit against the players to enforce a noncompete agreement,” Pollard said. “That’s not what the PGA Tour is going to do. I don’t see them in any way affirmatively initiating litigation. I see the players initiating litigation.”
Englishman Ian Poulter, one of the players competing on the LIV Golf tour who was suspended by Monahan, told reporters Thursday that he planned to sue the PGA Tour.
Both Lauro and Pollard said the PGA Tour is in jeopardy of being hammered with antitrust claims.
“If you have the PGA Tour saying these people can’t be part of the PGA Tour if they’re playing in a Saudi league, that does raise antitrust concerns,” Pollard said.
“The PGA Tour is really opening itself up to a major lawsuit with potential antitrust claims and also a situation where they can’t justify what they’re doing other than saying, ‘We don’t like competition,”’ Lauro said. “And the courts are going to be very concerned about why the PGA Tour is doing this. These issues are now being looked at very carefully from an antitrust perspective by the courts. The courts look very skeptically on any kind of restraint of trade, and that would be part of what the PGA Tour is doing.“These anti-competition provisions are being scrutinized very, very carefully. The Biden administration has said that they’re going to be looking at these things from the perspective of antitrust violations. And there’s really an effort being made now to ensure that the labor market is mobile and that workers—whether they’re PGA players or plumbers—can go from employment opportunity to employment opportunity without restriction.”
Lauro said he believes it’s clear the PGA Tour is trying to monopolize the sport, and the players are pawns, not employees.
“The fact that the players are independent contractors weighs heavily against the PGA Tour, because the PGA Tour has treated them not as employees, but as independent contractors,” Lauro said. “When you add to that that there have been waivers granted in the past [to players wanting to play events outside of the PGA Tour], it really lessens the justification for these kinds of restrictions. That’s just not supportable in terms of where the law is going now.”