The PGA Tour came out swinging on Wednesday with a 71-page answer to the amended complaint filed by Matt Jones, Bryson DeChambeau, Peter Uihlein and LIV Golf, Inc., and also filing a counterclaim against plaintiffs.
While the answer is procedural, the counterclaim is not uncommon but it’s also a new wrinkle in the case and claims the Tour through LIV golf’s actions has been harmed and should receive damages for that harm.
The plaintiffs filed an amended complaint on Aug. 26 after they were denied a motion for the Temporary Restraining Order filed on Aug. 10.
The TRO was filed as an attempt to get Matt Jones, Hudson Swafford and Talor Gooch into the first FedEx Cup playoff event, which they had qualified for on points.
After the amended complaint was filed the PGA Tour’s answer was due on Sept. 23, but the Tour asked for an additional five days to file their answer, which the judge granted.
While most of the document covers the PGA Tour’s responses to the amended complaint, starting on page 53 the PGA Tour lays out its counterclaim against LIV and the players remaining in the lawsuit.
On Sept. 27, Phil Mickelson, Ian Poulter, Gooch and Swafford all voluntarily asked to be dismissed from the case.
Most of the counterclaim is based on the PGA Tour assertion that LIV was a willing participant in convincing players to breach their contracts with the Tour by paying them large sums of money.
Those breaches by the players are the substance of the counterclaim by the Tour, which is asking for damages because of LIV’s tortious interference with the Tour’s contracts, including any lost profits, damages to reputational and brand harm, plus costs and punitive damages the Tour suffered by LIV’s actions.
“The Tour claims in its counterclaim that LIV’s tortious inducement of numerous, repeated breaches of contract by former Tour members, including Phil Mickelson, Talor Gooch, Hudson Swafford, Matt Jones, Bryson DeChambeau, Ian Poulter, and Peter Uihlein (together, ‘LIV Players’),” the PGA Tour states in its introduction. “LIV has executed a campaign to pay the LIV Players astronomical sums of money to induce them to breach their contracts with the Tour in an effort to use the LIV Players and the game of golf to sportswash the recent history of Saudi atrocities and to further the Saudi Public Investment Fund’s Vision 2030 initiatives.”
In the Tour’s answer to the amended complaint regarding antitrust, it states that the case is not about unfair competition—it says that if anyone is competing unfairly, it is LIV, not the Tour. Instead, it is a cynical effort to avoid competition and to freeride off of the Tour’s investment in the development of professional golf.
The Tour also claims in its defenses, which are procedural in nature, that LIV has failed to make a claim upon which relief may be granted, that they lack antitrust standing to bring the case and that they have not suffered any injury due to any of the Tour’s actions.
“The Tour has made these counterclaims in a transparent effort to divert attention from their anti-competitive conduct, which LIV and the players detail in their 104-page complaint,” LIV Golf said in a statement Thursday. “We remain confident that the courts and the justice system will right these wrongs.”
With the answer now filed, the next step will be discovery, which will include requests for documents, interrogatories (written questions) and depositions.
As part of Joint Case Management Statement approved by Judge Beth Labson Freeman on Sept. 16, the subjects of discovery would be:
- Competition in the market for the services of professional golfers for elite golf events.
- Competition in the market for the promotion of elite professional golf events;
- the conduct, circumstances, and communications.
related to LIV Golf’s entry into the markets; barriers to entry into the markets;
- Communications and alleged agreements regarding entry of potential competitors into relevant markets.
- The communications with vendors, broadcasters, sponsors, and other third parties in the golf ecosystem, the PGA Tour’s asserted justifications for the agreements it has reached with players, third parties, and other golf tours;
- Plaintiffs’ allegations regarding the pretextual nature of those asserted justifications.
- LIV Golf’s agreements with and negotiations of potential or actual agreements with, players, vendors, broadcasters, sponsors, and other third parties in the golf ecosystem.
- LIV Golf’s entry into the market and its current and projected/forecasted roster, market share, and revenue.
- Player Plaintiffs’ and other LIV players’ expectations related to their decisions to join LIV Golf and the PGA Tour, and any relevant issues raised by any counterclaims filed by Defendant.
- Plaintiffs’ requested damages and injunctive and other relief; and any other claims or defenses.
Document production will start on Oct. 3 with substantial completion of document production by Nov. 18.
Trial is set to begin on Jan. 8, 2024, in the Federal District Court in San Jose, California.