Power to Punish LIV Golfers Faces a Legal Test in Europe

DUBAI, United Arab Emirates — Many of the golfers had wandered away one afternoon last week, seeking lunch or refuge from the Emirati sun or something besides the monotony of a driving range.

Ian Poulter, though, kept swinging, the consistency nearly enough to disguise that there is almost no professional golfer in greater limbo.

Poulter, who has competed on the European Tour for more than two decades, is among the players who defiantly joined LIV Golf, the breakaway circuit bankrolled by Saudi Arabia’s sovereign wealth fund, and faced punishment from the tour. Next week, almost eight months after the first rebel tournament, arbitrators in London will weigh the tour’s choice to discipline defectors.

The case is a test for the golf establishment’s response to LIV, which has guaranteed certain players tens of millions of dollars to compete in a league that insists it is looking to revive golf but that skeptics view as a front to rehabilitate Saudi Arabia’s reputation. Executives and legal experts say, though, that the arbitrators’ decision could also ripple more broadly across global sports as athletes increasingly resist longstanding restrictions on where they compete and as wealthy Persian Gulf states look to use the world’s courses, fields and racetracks as avenues for their political and public-relations ambitions.

“The impacts of this case are potentially tremendous across all of international sport,” said Jeffrey G. Benz, a sports arbitrator in London who is not involved in the golf case and noted how other leagues and federations have faced opposition to their efforts to stymie potential rivals.

Although the issue that next week’s panel will consider is formally a narrow one, dealing only with the European Tour’s conflicting event policy, a ruling in favor of the players could embolden like-minded but wary athletes to plunge into the universe of cash-flush start-ups. A victory for the tour, marketed as the DP World Tour, would reinforce the kind of rules that marquee sports organizers have harnessed for decades to preserve market power. And whichever side prevails will assuredly tout victory as vindication for its approach to professional sports.

“There’s the public opinion part, there’s the influence it might have on other athletes, there’s the influence it might have on other rich people who might think, ‘Hey, I’d really love to get into sports. Let’s put a group together and go attack name-the-sport,’” said Jill Pilgrim, a former general counsel for the L.P.G.A. who now teaches sports arbitration at Columbia Law School.

“They’re watching all of this,” she added.

Poulter has argued that playing with the new circuit was not all that different from the rest of a storied career dotted with appearances across tours.Credit…Lynne Sladky/Associated Press

The golf case began last June, when Poulter was among the European Tour players who played in a LIV Golf tournament without the tour’s permission. The tour, wary of undermining the rules that fortify its sponsorship and television-rights deals, responded with short suspensions and fines, modest penalties compared to the indefinite suspensions that the United States-based PGA Tour meted out.

The players insist, though, that they are independent contractors and should have greater freedom to pick when, where and for whom they compete. An arbitrator paused the tour’s punishments last summer but did not rule on the substantive arguments that will go before this month’s panel. The arbitrators could announce their decision within weeks of the five-day, closed-door hearing, which will begin Monday.

A Guide to the LIV Golf Series

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A new series. The debut of the Saudi-financed LIV Golf series in 2022 resurfaced longstanding questions about athletes’ moral obligations and their desire to compete and earn money. Here’s what to know:

What is LIV Golf? The series is a breakaway professional golf circuit bankrolled by Saudi Arabia’s sovereign wealth fund. Its organizers hope to position it as a player-power-focused alternative to the PGA Tour, which has been the highest level of pro golf for nearly a century.

Why is the new series controversial? The event has created sparks within golf for upending the traditions and strictures of how the game is played. It has also become a lightning rod for human rights campaigners who accuse Saudi Arabia of using sports to launder its reputation.

Who is playing it? Several top players and former major champions have joined LIV Golf, including Phil Mickelson, Dustin Johnson, Henrik Stenson and Cameron Smith. But many of the biggest names in the sport, such as Tiger Woods and Rory McIlroy, have stayed away.

What is attracting the players? The LIV Golf events are the richest tournaments in golf history. The first tournament’s total purse was $25 million, and the winner’s share was $4 million. The last-place finisher at each event was guaranteed $120,000. That is on top of the appearance fees and nine-figure signing-on payouts some players have accepted.

How has the PGA Tour responded? The PGA Tour suspended several members among the LIV Golf players after it denied them releases to participate in other events. The Justice Department later announced that it was investigating the PGA Tour for anticompetitive behavior. The rival tours have also engaged in a winding legal battle of their own.

What’s next? For 2023, the tour has signed a deal with the CW network to broadcast its events and announced a 14-event second season, which includes stops at three of former President Donald J. Trump’s golf courses. Meanwhile, the drama between LIV Golf and the PGA Tour seems far from over.

The dispute in London is separate from litigation in California involving LIV Golf. Similar issues have sometimes surfaced in connection to those proceedings, but the arguments there will be evaluated under American law and not tried until at least next year.

It is unlikely that the American legal system will pay much mind to the ruling from London, lawyers said. Paul Greene, a Maine lawyer who works on international sports cases, predicted that the European Tour matter would become one “where the loser will run away from it and say it doesn’t matter to the U.S. case.”

But with an outcome in the United States distant, the London case could do much to shape the months ahead as players consider whether to join LIV Golf and the European Tour scrambles to protect its interests.

Golf is far from the only sport to wrestle lately with legal questions over limits for athletes and competitions. Speedskating has been mired in years of legal quarreling tied to an upstart circuit from South Korea. And last month, a federal judge in San Francisco ruled for swimming’s international governing body in cases related to a potential rival backed by a European business magnate.

European Tour officials have recently scrutinized a December opinion from an advocate general at the European Union’s Court of Justice who argued that soccer’s governing bodies were allowed to threaten penalties if teams helped develop a new competition that “would risk undermining” the federations.

Although the advocate general’s views are not binding on the court — or the London arbitration panel — tour executives appear to see the opinion, issued in a matter related to the European Super League proposal that collapsed almost as soon as word of the plan emerged, as one stocked with legal rationales that could apply in the golf case.

In the wake of rulings that have sometimes supported leagues and federations, a victory for the golfers could “certainly give confidence to anyone looking to set up this kind of at least initially unauthorized tournament,” said Mark James, a professor of sports law at Manchester Metropolitan University in Britain.

The European Tour case includes 13 players, including Martin Kaymer and Lee Westwood, both of whom were previously ranked No. 1 in the world.

“I’ve held multiple cards, and I’ve played on numerous tours at numerous times and played plenty of events around the world,” said Poulter, left, with Lee Westwood.Credit…Rungroj Yongrit/EPA, via Shutterstock

But Poulter, who finished in a tie for sixth in the Dubai Desert Classic that ended on Monday, has been a frontman for the case from its start, turning one of the finest Ryder Cup players of his generation into a face of a weighty legal fight. Among European golf’s brashest, most distinctive voices, Poulter acknowledged at the first LIV tournament that he was not certain how the tour would respond to his choice.

Poulter declined to be interviewed last week but has argued that playing with the new circuit was not all that different from the rest of a storied career dotted with appearances across tours.

“I’ve held multiple cards, and I’ve played on numerous tours at numerous times and played plenty of events around the world, and that is what I’m continuing to do,” he said in June, when he acknowledged that golfers “always want to play for as much as possible.”

Some players have suggested that the PGA Tour and European Tour were selectively enforcing their rules after years of winks and nods. James, the professor in Britain, said the London case’s outcome could hinge on whether the European Tour can articulate “objectively reasonable grounds for treating LIV differently to the other professional tours for which the players are generally granted permission” to appear.

Players seem to doubt it can.

“There is no difference whether I’m on the PGA Tour or on LIV: I’ve always played two tours,” Patrick Reed, who won the Masters Tournament in 2018, said in an interview in Dubai as he sported a LIV Golf hat. “So all these guys saying that you can’t basically double-dip, you can’t — What’s that cake phrase they love to use? Make your own cake and eat it, or something like that? — well, Rory, myself, all these guys have played on multiple tours.”

Reed, the runner-up in Dubai behind Rory McIlroy, who has been one of the establishment’s most ferocious defenders, noted that it was only in 2019 that he received an honorary life membership for the European Tour — at a tournament in Saudi Arabia, no less. With the hearing looming, he suggested, he could do little more than try to concentrate on his game.

“The only thing I can really focus on is golf and letting the lawyers deal with all of that,” Patrick Reed said.Credit…Doug Mills/The New York Times

“We’re going to have to wait and see how the hearing goes and see how everything transpires,” Reed said on the driving range. “The only thing I can really focus on is golf and letting the lawyers deal with all of that.”

He grinned.

“There are two things you’d love to come into right now: an attorney and a sports agent,” he said, “because both of them have been doing really well with LIV joining and being a part of it.”

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