Former professional golfer Greg Norman, whose LIV Golf Investments is the driving force behind the proposed Saudi golf league, on Thursday sent a letter to PGA Tour Commissioner Jay Monahan in which he said Monahan cannot ban players who sign on to the breakaway circuit.
In October, Norman was named CEO of LIV Golf Investments, which has received hundreds of millions of dollars from Saudi Arabia’s Public Investment Fund to operate golf tournaments on the Asian Tour. LIV Golf Investments also is attempting to start a Saudi-backed golf circuit (also referred to as the Super Golf League) that would directly compete with the PGA Tour by siphoning off its best players for no-cut, limited-field events with large prize pools.
Monahan has said any player who signs with the Saudi golf league would be permanently banned from the PGA Tour. But in his letter, Norman asserted that the PGA Tour has no legal right to do that because the golfers are considered independent contractors.
“Simply put, you can’t ban players from playing golf,” Norman wrote. “Players have the right and the freedom to play where we like. I know for a fact that many PGA players were and still are interested in playing for a new league, in addition to playing for the Tour. What is wrong with that?”
The Saudi venture has drawn renewed attention in the past week, since it was revealed that star player Phil Mickelson said in a November interview that he was willing to overlook Saudi Arabia’s human rights record to help get the new league off the ground as a direct challenge to the PGA Tour.
Reaction to Mickelson’s comments from his fellow pro golfers was almost universally negative, and several big-name players who previously were thought to be interested in the Saudi league — including major winners Bryson DeChambeau and Dustin Johnson — distanced themselves from the concept after Mickelson’s comments.
Monahan also reacted strongly, repeating his threat that any player who signs on with the breakaway league would be banned from the PGA Tour.
To back up his assertion that Monahan can’t follow through with that threat, Norman cited an article published Monday on InsideSources by Alden Abbott, the former general counsel of the Federal Trade Commission.
“Let’s be clear: A lifetime ban is never going to happen,” Abbott wrote. “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 PGA Tour Player Handbook says any player who competes under PGA Tour auspices acknowledges the right of the commissioner and the appeals committee to “fine and suspend the member from tournament play, and/or ... fine and permanently bar the member from play in PGA Tour cosponsored, approved or coordinated tournaments” if the golfer violates tour regulations.
PGA Tour golfers must receive permission to compete in tournaments that take place at the same time as PGA Tour events, though most veteran pros are allowed to do so three times per season. But the handbook also says the commissioner can deny requests to compete in conflicting events “if he determines that such a release would cause PGA Tour to be in violation of a contractual commitment to a tournament sponsor, or would otherwise significantly and unreasonably harm PGA Tour and such sponsors.”
Other legal observers have said the line between employee and independent contractor is not as stark as Norman and Abbott contend.
“I do not believe [the tour is violating antitrust laws], since the player has other options to compete, which is the basis for the ban itself,” sports-law attorney Darren Heitner told Golf Digest this month. “The PGA Tour is a nonprofit organization that has the right to exclude individuals from its ranks as long as it abides by its own policies, provides no preferential treatment and does not act in a discriminatory manner.”
The PGA Tour’s rule about the players needing permission to compete in conflicting events has survived a legal fight already. In 1994, antitrust lawyers at the FTC tried to get the federal government to nullify the rule — and another one that said players needed to get permission before appearing on television programs not sanctioned by the PGA Tour — because they created possible “unfair methods of competition.”
But then-commissioner Tim Finchem, who served in the administration of President Jimmy Carter, went on a lobbying offensive, challenging the FTC conclusions in news releases and media interviews and enlisting 26 members of Congress, on both sides of the aisle, to write letters to the FTC pleading the tour’s case.
The issue even came up during the 1995 Senate confirmation hearing for Robert Pitofsky, who was President Bill Clinton’s nominee to head the FTC.
“I understand for four or five years now, you have got a bunch of lawyers … wanting to try to mess up this sport,” Sen. Ernest F. Hollings (D-S.C.) told Pitofsky, adding that the FTC “is still fiddle-faddling around, trying to find some trouble, and that is what I will be interested in.”
Finchem’s lobbying worked. On Sept. 1, 1995, the FTC announced that its commissioners had voted, 4-0, to reject the staff antitrust lawyers’ recommendation to take legal action against the tour.
Norman, a two-time British Open champion, has been down this path before, too. In 1994, he and the Fox television network attempted to launch a competing circuit called the World Golf Tour, which annually would feature eight tournaments in the United States and abroad. Like Monahan, Finchem threatened to ban any player who took part.
Eventually, to Norman’s chagrin, the PGA Tour joined with other circuits around the world to create the World Golf Championships, in which the sport’s best players would compete in smaller-field, no-cut events for large prize pools. WGC tournaments remain on the golf schedule to this day.
Norman accused Finchem of stealing his idea.
“I told him I was irritated with him,” Norman said in 1996 after confronting Finchem in a hotel lobby soon after the WGC’s creation was announced. “I’ve had it up to here with Tim Finchem. It’s the end of the rope for me. He hung me out to dry.”
This time around, Norman doesn’t sound as if he’s going to back down.
“Commissioner — this is just the beginning,” he wrote in his letter Thursday. “It certainly is not the end.”