To play or not to play – golf’s power struggle

First, there was Brexit. Then Covid. Then there was (and is) the war in Ukraine.

Life has had its fair share of challenges over the last three years and so “taking time to smell the roses”, an idiom used to encourage relaxation is maybe more relevant now than ever. The legendary golfer Ben Hogan famously stated that “as you walk down the fairway of life you must smell the roses, for you only get to play one round.” For most of us golf, whilst sometimes frustrating, is an opportunity for relaxation. It is “just” a pastime or hobby but for the select few, the elite, it is a business. A job, and a highly-paid one at that.  Current world number 2 Rory McIlroy’s worth $170 million and Tiger Woods, perhaps the greatest player ever, sits at an eye-watering 1.1 billion USD. With riches of that magnitude available to the “best of the best” then the game once synonymous more with bad sweaters is now an industry worth $84 billion. Inevitably there are new stakeholders who want a piece of the action and so in 2023 golf is locked in a power struggle between three parties: The PGA Tour – the organiser of elite professional golf championships in the United States and North America and a $1.5 billion business. The DP World Tour (formerly the European Tour) is reportedly worth $76 million, and LIV Golf, a new kid on the block, is financed by the Saudi Public Investment Fund, which is a sovereign wealth fund with estimated assets of $620 Billion USD.

The PGA Tour and LIV Golf are involved in an ongoing, protracted, and fractious legal battle concerning whether bans imposed on players (as self-employed golfers who have defected to LIV) preventing their participation in PGA Tour events, are lawful. One can only imagine the time and expense associated with litigation of that magnitude. In contrast, LIV Golf and the DP World Tour have agreed to a binding arbitration from the Sports Resolutions Arbitration Centre in London. Notwithstanding initial suspensions handed down by the DP World Tour in June 2022 to three players, Ian Poulter, Adrian Otaegui and Justin Harding (“the Appellants”) preventing play in the Genesis Scottish Open, Barbasol Championship and Barracuda Championship as well as a £100,000 fine, a stay was granted by the International Dispute Resolution Centre by Sports Resolutions in July 2022. This permitted any golfer who has joined LIV to compete in DP World Tour events, the rationale being that the balance of convenience and justice lies with granting the stay so that the question of sanction, if there is a finding by the appeal panel adverse to the Appellants, can be considered after that process has taken place, thereby mirroring the process for the Disciplinary Panel. On 6 February 2023, a five-person appeal panel Chaired by Judge Philip Sycamore CBE started hearing the case. A decision is due later this year.

Unquestionably going through the dispute resolution service not only offers a faster outcome but one less expensive than court. It also ensures the involvement of specialists knowledgeable in sports law. In broad terms, the main question for the panel to determine is whether the DP World Tour is right to censure players or whether the sanctions and discipline imposed, amount to an unfair restraint of trade. On the face of it, both sides have respectable arguments. On the one hand, it may be difficult for golfers to show that the sanctions are an unfair restraint of trade when they can still play golf. Losing the argument does not prevent the Appellants from participating in the LIV Golf Tour, where they can make a lot of money and arguably much more than they would from DP World Tour events. In contrast by using its powers to ban players then it appears as if the DP World Tour is trying to retain a monopoly. LIV golfers argue it is better for the world of golf if there are more events and more choices.

DP World Tour golfers counter by stating that “rebels” want their cake and eat it.

The matter is complex but given professionals have been able to play on both the PGA and DP World Tour without restriction, then this may be a precedent on which LIV golfers will rely.

The whole sports industry will watch what Sports Resolutions finds with interest. The arguments are not new but most other sports have found a route through the problem without needing a legal ruling – cricket has embraced the Indian Premier League and nationally contracted players are permitted to play in the event; England men’s Test Cricket Captain Ben Stokes is in India now with the ECB blessing. However other governing bodies will look closely as to whether their powers extend to using their own rules and regulations in control of player participation and what, in turn, might be considered anti-competitive behaviour.

One thing is certain – there will be a few thistles to wade through before we get to smell the roses.