I. Introduction

It has frustrated people of all ages and levels of experience. It has been altered to forms such as mini golf, augmented reality, and virtual reality to reach new audiences. In fact, in 2023 around 123 million people, more than one-third of the U.S. population over the age of five participated in the game of golf.[1] As a result, the game has grown globally, and a new professional golf league has been established. Recently, the two preeminent professional golf leagues, the PGA Tour and LIV Golf announced a merger, raising immediate inquiries and investigations relating to antitrust law and competition policy. Despite these, the ultimate decision of what these inquiries mean and how they might be resolved remains unanswered. Although the golf merger is the most recent professional sports merger, the three most profitable American professional sports leagues have all undergone similar mergers at some point in their history.[2] This Note explores the history and impact that competition policy has had on some of these prior mergers, and how the law will be applied here. It concludes that despite the best arguments from the merging leagues, the announced merger should be blocked because it violates U.S. competition policy. It recommends that federal agencies block the merger to prevent the formation of a monopoly in professional golf.

Part II of this Note analyzes the history of competition policy and antitrust regulation in America. The Sherman and Clayton Acts are the foundational pillars of American competition policy that deciding bodies interpret to rule on a merger. This part will take a close look at how the two Acts were created, and how they have been interpreted since.

Part III summarizes the history of both the PGA Tour and LIV Golf from the viewpoint of antitrust law and competition policy. For decades, the PGA Tour never faced stiff competition from a competing tour, until now. This part will discuss how both tours were created and have reached the positions they are in today.

Next, Part IV of this Note explores comparable professional sports league mergers and the role of competition policy in their formation. Major League Baseball (MLB) is an outlier in terms of having a statutory exemption from the antitrust laws, but the National Basketball Association (NBA) merger is comparable in both substance and form in evaluating the potential antitrust issues and constitutionality of the PGA–LIV merger.

Part V of this Note provides the known details of the merger and a framework that authorities could use in determining the constitutionality of this merger. It states that in its current form, the merger is unconstitutional as both a per se and rule of reason violation of U.S. competition policy because it eliminates the only viable competitor to the PGA Tour and creates cognizable harm for consumers.

II. History of Antitrust Regulation in America

Competition policy is connected across our society, from shopping, to the Internet, to sports.[3] However, mergers and acquisitions happen every day, pushing competition policy to new boundaries. This includes the recently announced merger between the PGA Tour and LIV Golf.[4] To understand the effect of competition policy in the proposed merger, one must review the history and development of the laws governing competition policy in America. This part discusses the development of U.S. antitrust law and provides examples of how the laws are challenged today.

A. Origins of U.S. Antitrust Law

The Sherman and Clayton Antitrust Acts are the two key pieces of legislation governing U.S. competition policy, or antitrust law.[5] However, to better understand how these two Acts work to favor competition, it is important to understand how this area of law came to be. In the late nineteenth century, the term “trust” became used synonymously for big business in American society.[6] A trust is a legal device that people can use to coordinate multiple assets through one unified system.[7] One famous example of an early trust is John Rockefeller’s Standard Oil Co. trust set up by S.C.T. Dodd in 1882.[8] This trust granted Rockefeller the ability to control the price and supply of oil, beginning a trend of industrial consolidation.[9]

Following this trend, purveyors of competition policy knew that something would have to change. Fears grew of trusts being able to influence political outcomes or trammel small businesses.[10] These thoughts were not new; judges had been enforcing common law “restraints of trade” prohibitions, and states had their own sets of corporation laws.[11] From 1889 to 1895, five states successfully prosecuted trusts using state corporation laws.[12] While these laws had worked in the past, the increasing interstate nature of American society showed the flaws in these laws.[13] In 1889, New Jersey passed a law magnifying the shortcomings of state corporation law.[14] Thus, the modern antitrust movement began in the late 1880s due to rapid changes in American society.

B. The Sherman Antitrust Act of 1890 and the Origins of Antitrust Enforcement

National political parties were not satisfied with the effectiveness of the states’ regulations, and both Republicans and Democrats stepped in.[15] Congress used its power to regulate interstate commerce and passed the bipartisan Sherman Antitrust Act in 1890 to combat trusts and increase competition in the marketplace.[16]

Section 1 of the Act declared, “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade” to be illegal and made any violations a felony, punishable by fine or imprisonment.[17] Section 2 of the Act states that the law is designed to act as the first line of defense against companies forming monopolies in the American economy.[18]

Initially, the Supreme Court used a literal interpretation of the Act that actually incentivized economic concentration.[19] In E.C. Knight, the Court held that the Act did not apply to the trust, a company controlling 98% of America’s sugar refining capacity.[20] The Court reasoned that despite being able to effectively control the price of sugar, the company was not a monopoly because there was no clear intent to restrain trade.[21] The Court held that the Sherman Act only concerned interstate commerce, and manufacturing was an intrastate issue left for the individual states to govern.[22] A similar line of reasoning can be seen in a later Supreme Court case, Federal Baseball, in creating the MLB’s antitrust exemption, which will be discussed more later.[23]

As a result of this literal interpretation, the “great merger movement” occurred from 1895 to 1904.[24] Corporations were able to integrate, both vertically and horizontally, and avoid prosecution from the government while simultaneously becoming more efficient corporations.[25] However, despite this loophole, the Court found ways to break up illegal restraints of trade. In Addyston Pipe & Steel Co., six independent corporations entered into a contract in which they agreed to not compete in listed states.[26] In the contract, the corporations agreed to a bonus system, which provided an economic incentive for the companies to restrain trade.[27] This case is important in our analysis because it introduces the argument of reasonableness to the consideration of whether an action is a restraint of trade.[28] The Court held that the effect of the contract went beyond the level of being reasonable, and thus violated competition policy.[29]

Following the ideas from Addyston, the Court officially adopted the rule of reason analysis in 1911.[30] In Standard Oil, the Court held that the corporation’s contracts unreasonably restrained trade, and thus violated the Sherman Act.[31] In holding so, the Court analyzed factors of competitive impact that the creation and dissolution of the monopoly affected.[32] These include: (1) obtaining preferential rates from competitors; (2) forcing competitors to become members of the combination to survive; and (3) the ability to control the price and supply of oil.[33] Thus, two standards of review for antitrust violations were established: per se statutory violations and the rule of reason.

Per se violations constitute the vast majority of antitrust prosecutions.[34] These violations occur when a business as itself violates the antitrust statutes and no defense or justification is allowed. Examples of per se violations “include price fixing, bid-rigging, horizontal customer allocation, and territorial allocation agreements.”[35] Other violations will be analyzed under the rule of reason originally established in Standard Oil and a totality of the circumstances test.[36]

Alternatively, the modern rule of reason analysis traces its origins to Chicago Board of Trade.[37] The original formulation was one big balancing test that made everything relevant and provided no method of weighing the factors, resulting in no practical value.[38] Over time, this test has been distilled into a four-step burden-shifting approach. First, the plaintiff must show an anticompetitive effect, usually in the form of a price increase, or market power.[39] Next, “the burden shifts to the defendant to demonstrate a legitimate procompetitive justification.”[40] If shown, the burden shifts back to the plaintiff, this time to show the restraint is not “reasonably necessary” to its objectives.[41] Finally, the court balances the procompetitive and anticompetitive effects to determine if the restraint is reasonable.[42]

C. The Presidential Election of 1912 and The Clayton Antitrust Act

With the rule of reason analysis having just been created, the 1912 presidential election was extremely consequential for the continued development of U.S. antitrust law. Four different candidates ran for president, each campaigning on a different theory of antitrust policy.[43] President Woodrow Wilson, having campaigned on a promise to prosecute monopolies to regulate competition, won the election and, in 1914, passed the Clayton Antitrust Act.[44]

Designed to bolster the Sherman Act, the Clayton Act sought to expand protection from anticompetitive behaviors.[45] This Act was designed to disrupt these behaviors earlier, by listing prohibited behaviors.[46] Examples of prohibited behaviors include: price discrimination, conditioning sales on exclusive dealing, mergers that may substantially reduce competition, and serving on the board of directors for competing companies.[47] Together, these two acts provide the basis for determining whether a contract or entity is violating competition policy, and subsequently, whether a professional sports merger is an illegal restraint of trade.

III. Golf as a Monopoly

Similar to developments in antitrust law, golf was not created overnight. To understand how the issue of professional golf violating competition policy has arisen, it is important to understand how both the PGA and LIV Tours have gotten to this point. This part will discuss the history of the game of golf and the developments in the PGA and LIV Tours that have led to an antitrust investigation.

A. The History of the PGA Tour

The sport of golf has existed for centuries.[48] While the first written rules for the sport come from 1744, the earliest written reference of the game comes from 1457.[49] As the sport continued to increase in popularity, different organizations came up with different governing rules.[50] The game of golf grew in the United States, and in 1895, the first U.S. Open was held in Rhode Island.[51]

Issues soon arose from having varying rules, and in 1899, the Royal and Ancient Golf Club of St. Andrews delivered the first consolidated set of rules to establish uniformity in the game.[52] Five years earlier, the United States Golf Association (USGA) had been formed, so there were two major golf organizations in the world.[53] Throughout the following decades, the sport continued its rapid growth, and the competition increased.[54] This growth culminated in the creation of the Professional Golfers Association (PGA) in 1916.[55]

The founding of the PGA opened the door for the further expansion of the sport. The thirty-five founding members found a sponsor and hosted tournaments with a purse to be won by the victor.[56] Throughout the 1920s these tournaments grew in both numbers of players, and the prize money available.[57] Eventually, the tour needed more structure, and Bob Harlow was named the first manager of the PGA Tour in November 1930.[58]

This move was met with skepticism by some of the players. Decreasing purses were a result of the economic conditions of the early 1930s, and some players felt that they were better off on their own.[59] In 1932, Walter Hagen led a group of players in creating the “Playing Pros” organization.[60] Despite flaming out only a year later, this movement represents the first major attempt of forming an organization to compete against the PGA.[61]

The remainder of the twentieth century saw the PGA continue its growth. The combination of Arnold Palmer, television, and President Eisenhower placed the world’s attention on golf.[62] The increased exposure resulted in drastic changes to the business side of golf. The skill level of the players and purses of the tournaments continued to grow.[63] This success led the Tour to partner with international tours to continue growing the game.[64] Due to its pedigree, the PGA had never been seriously challenged in the world of golf.

B. Attempts to Compete

Until 1994, the PGA faced little to no threat to its status as the pinnacle of golf. In 1994, following a four-year investigation by the Federal Trade Commission (FTC), the agency’s antitrust lawyers decided to seek government action.[65] As the preeminent golfing body, the Tour imposed severe contractual restrictions on its players.[66] The investigation sought to nullify two rules that the PGA required all golfers to accept as a condition of joining the tour.[67] The first sought to forbid golfers from playing in non-PGA events without the commissioner’s permission.[68] The second gave the PGA a similar ability to veto appearances on televised golf programs.[69] Together, these allowed the PGA to dominate the business world of professional golf, and made it nearly impossible for rivals to succeed.

Upset with the PGA Tour’s restrictions, Greg Norman, the then-No. 2 player in the world, made an announcement that sent shockwaves through the golf community.[70] He announced that he would be joining the World Golf Tour (WGT) for eight events each year, beginning in 1995.[71] The appeal of this competitor was hard to miss; Fox signed a ten-year agreement to broadcast the series, and each event offered a purse of $3 million.[72] However, the WGT’s momentum was short-lived. In 1995, the FTC decided not to impose charges on the PGA for the restraint of trade.[73] Despite the WGT losing any leverage it had, this showed the golf world that it was possible to challenge the PGA Tour. By 1997, Norman was back in good standing with the PGA, but his message was received as the Tour announced three new tournaments modeled off Norman’s proposal.[74]

The next two decades remained quiet with competitors, at least publicly. In 2014, Andy Gardiner and the UK World Golf Group created a proposal for a new competing tour, the World Golf Series (WGS).[75] Gardiner and his team worked quietly behind the scenes recruiting players, a switch from the public outcry that Norman used with little success.[76] Gardiner and his team knew that to build an effective competitor, they had to try and get the biggest names on board. Golfers they approached included then-World No. 1 Rory McIlroy and Phil Mickelson.[77] Finally, in 2018, the details of the new competitor were released, and it became clear how any potential competitor planned to succeed.[78] The WGS proposed fifteen to twenty annual events, each with a $20 million purse.[79] Any competitor with hopes of successfully competing with the PGA Tour would have to be able to offer a significant amount of money to the players.

Much of the appeal of the WGS also happened to be a drawback. As members of a competing tour, players would not be able to accrue “Official World Golf Ranking points, which players need to qualify for major championships” on the PGA Tour.[80] This could be seen as a restraint on trade because it would force the players to decide whether they prioritized guaranteed prize money or the chance to compete on golf’s grandest stage.

After years of trying to gain momentum, in January 2020, the league solidified its format and announced its new name, the Premier Golf League (PGL).[81] Pros were attracted to the tour by the promise of large purses and no-cut events.[82] Later that month, Mickelson and Sergio Garcia played in a pro-am tournament with numerous financiers of the tour, including Gardiner and Yasir Al-Rumayyan, manager of the Saudi Arabian sovereign wealth fund (PIF).[83] Concerned by the potential for competition, PGA Tour Commissioner Jay Monahan echoed the voices of the past and informed Tour pros that they are prohibited from playing on both the PGA and PGL.[84] McIlroy also voiced his concerns about the competing tour for the first time.[85] However, neither of these events derailed the PGL, which continued to gain momentum.[86]

Fortunately for the PGA, in March of 2020 the COVID-19 pandemic halted the golf world, which allowed the formerly uncontested power to respond. In November, the European Tour and the PGA announced an alliance to align their schedules globally.[87] This allowed players to compete at more events, improved the quality of the playing opportunities, and in a seemingly direct attempt to disarm the PGL, once again increased tournament purses.[88] The PGA, clearly threatened by the possibility of competition on golf’s grandest stage, continued to address the gripes of its golfers. In January 2021, the Tour launched its annual Player Impact Program.[89] The Program was simple: a $40 million pot that rewarded the ten PGA Tour players that bring in the most value to the Tour each year.[90] The Tour viewed this as its best defense in stopping players from defecting to upstart tours.[91]

Just a few months later in May, renamed as the Super Golf League, the upstart made headlines worldwide. The league offered almost a dozen leading Tour pros, including Bryson DeChambeau, Dustin Johnson, Brooks Koepka, and Mickelson, contracts up to $100 million to defect.[92] In October, Greg Norman resurfaced. Norman announced that he had accepted the position of CEO for LIV Golf, with the expectation that he would become the Commissioner of the LIV Golf Tour (the Super Golf League was once again rebranded as LIV).[93] The PGA’s dominance as the center of the professional golf world finally faced a legitimate challenger. The PGA offered one more purse increase to dissuade defectors and attempt to address the players’ everlasting complaint about financial inequity, but the damage had been done.[94]

Tensions climaxed in February 2022. Players announced they were defecting from the Tour.[95] Commissioner Monahan threatened lifetime bans for players that left the Tour, a clear violation of antitrust policy.[96] What was clear at this point was that the PGA for the first time felt threatened. Monahan and Norman continued going back and forth, with Norman accusing the PGA of being an illegal monopoly.[97] Less than an hour after the initial LIV tournament teed off, Monahan announced that any players competing in the LIV tournament with PGA Tour affiliation were suspended or ineligible to compete in future PGA events.[98] Mickelson and ten other LIV golfers responded by filing an antitrust lawsuit against the PGA Tour, alleging an unlawful monopoly and a restraint of trade.[99]

The 266-page complaint detailed the efforts that the PGA Tour allegedly undertook to protect its monopoly. The plaintiffs alleged that the Tour’s restrictions denied the players the ability to sell their services to others, imposed suspensions for merely exercising their rights as independent contractors, and ramped up its threats targeting the plaintiffs.[100] In the complaint, the plaintiffs highlighted the stark difference of this attempt to disrupt the PGA’s stranglehold over golf; other competitors offered the money or the venues, but LIV was the first to get the elite golfers to rival the PGA.[101] These events have led us to the golf civil war, and the proposed resolution that is under scrutiny today.

IV. Antitrust Law and Professional Sports

To understand what a resolution from the Department of Justice’s (DOJ) antitrust investigation into the PGA might look like, it is important to illustrate the precedent in other major sports leagues in America. From statutory exemptions to the rule of reason analysis, there are precedents available for the government or a court to follow. This part will provide examples of how both the courts and the government have applied the antitrust laws in other professional sports.

A. Major League Baseball (MLB)

MLB remains the lone outlier from how the government has applied the antitrust laws in sports. The MLB is the only professional sports league to have a statutory exemption from the antitrust laws governing business.[102] The exemption stems from 1922, when the U.S. Supreme Court held that MLB games were purely for entertainment and were not related to interstate commerce.[103] Justice Holmes elaborated by saying that the interstate transport was merely incidental, and not the essential thing that would be called the trade of commerce.[104] Thus, the MLB was not engaged in interstate commerce, and the league’s acquisition of the Federal League teams did not interfere with commerce between states.[105]

Having been freed from the restrictions of competition policy, the MLB continued to grow its reach and stranglehold on the business of baseball. In all player contracts, MLB had inserted a reserve clause.[106] Under this system, players were essentially tied to one team until the team owner wanted to move on.[107] As time went on, the MLB maintained its comfortable status. From the 1903 season to the 1953 season, there were sixteen teams spread across ten different cities in the northeast.[108] Despite the travel required for games, MLB remained exempt from the antitrust laws. In 1953, the Court affirmed the approach from Federal Baseball, holding that if MLB were to be subject to the antitrust laws, it would have to be from legislation.[109] Despite keeping the exemption in place, the dissenting opinion written by Justice Burton was the first mention of views that have been prevalent to this day. In his dissent, Justice Burton wrote that he did not understand how in 1953 the MLB was not engaged in interstate commerce.[110] The dissent mentioned the television activities, the sponsorship of interstate advertising, and the restrictive contracts as proof that the MLB was engaged in interstate commerce.[111]

Despite these challenges, the MLB remained exempt. The next major challenge to the MLB’s exempt status came in 1972. In 1969, Curt Flood was an outfielder for the St. Louis Cardinals.[112] Following the conclusion of the season, the owner of the Cardinals decided not to renew Flood’s contract and traded him to the Philadelphia Phillies.[113] Flood was not consulted about the trade and was informed of it only after the deal had been transacted.[114] Upset with the deal and the terms of his contract, Flood asked the Commissioner to make him a free agent and grant him liberty to negotiate with any MLB team of his choosing.[115] Flood then filed suit against the Commissioner of Baseball, the presidents of the two leagues, and all twenty-four teams in the league at the time, alleging violations of antitrust laws.[116]

The Court held that although MLB was engaged in interstate commerce, and its reserve system was an anomaly, Federal Baseball and Toolson had established an exemption from the antitrust laws only applicable to the MLB.[117] The Court reasoned that “since 1922 [the MLB], with full and continuing congressional awareness, ha[d] been allowed to develop and to expand unhindered by federal legislative action.”[118] The Court advanced the sentiment set forth in Toolson that any change to the status quo would have to come from congressional action.[119] The Court’s decision in Flood allowed MLB’s antitrust exemption and restrictive reserve clause to survive.

A major turning point in players’ rights occurred in 1975. John Messersmith was a pitcher for the Los Angeles Dodgers.[120] Unable to renew his contract before the 1975 season, the Dodgers owner, Walter O’Malley, used his power under the reserve clause to renew Messersmith’s contract.[121] At the close of the 1975 season, the Players Association filed a grievance on his behalf, contending that the Dodgers no longer retained the exclusive right to employ Messersmith and that he was now a free agent.[122] The case went to arbitration centered on whether “one year” means “only once,” or one year at a time.[123] After hearing both sides, the panel, led by Peter Seitz, held that Messersmith was a free agent, and that “[he] shall be removed from the reserve list of the Los Angeles Club.”[124] The arbitration order was affirmed in trial court, and upheld on appeal.[125] This decision forced the owners’ hands, and a mere four months after the Eighth Circuit’s ruling, a tentative agreement establishing free agency was created.[126]

Strikes and work stoppages have long been part of the professional baseball culture.[127] During the infamous 1994–1995 MLB strike, one area in which players and owners disagreed was the reserve clause and free agency.[128] The owners’ proposal allowed players to enter free agency after only four years instead of six, but it provided the player’s current team with a right of first refusal and the ability to “match[] the offer of a club seeking a free agent.”[129] Negotiations between the two sides stalled, and the government got involved.[130] President Clinton appointed a mediator to manage the dispute, and the players’ union filed unfair labor charges with the National Labor Relations Board (NLRB).[131] Days before the 1995 season was scheduled to begin, then-U.S. District Court Judge Sotomayor issued an injunction against the owners, the strike ended, and the 1995 MLB season began.[132]

In response to the frequent work stoppages and labor disputes between the players’ union and the owners, Congress passed and codified the Curt Flood Act of 1998.[133] The stated purpose of the law was “to state that [MLB] players are covered under the antitrust laws,” but the repeal did not “change the application of the antitrust laws in any other context or with respect to any other person or entity.”[134] Despite having a seemingly narrow scope, the Curt Flood Act represented a victory for the players following decades of legal challenges, granting them protection under the antitrust laws in the event of future labor issues.

B. National Basketball Association (NBA)

Similar to professional golf and baseball, the NBA as we know it today is the product of a merger. Founded in 1946 as the Basketball Association of America (BAA), the league faced several struggles.[135] As with early MLB contracts, NBA player contracts contained a similar reserve clause.[136] In 1966, the NBA was finishing its twentieth season and was still facing financial struggles.[137] Despite this, Dennis Murphy decided that America needed a second league, and he started the American Basketball Association (ABA), as a different version of basketball.[138] However, the most important innovation the ABA brought was the introduction of statistics, allowing players to have objective measurements of their skills and value to a team.[139]

Fed up with the reserve clause and the rigidities of the NBA, Rookie of the Year and rising star Rick Barry agreed to leave the San Francisco Warriors to join the Oakland Oaks of the ABA prior to the 1967 season.[140] The owner of the Warriors sued to prevent Barry from doing so, and as a result, Barry was barred from playing in 1967 and 1968.[141] Barry eventually was able to join the Oaks the following season, and despite leading them to a championship, the franchise was sold and moved to Washington D.C.[142] In 1969, Barry sought a return to the Warriors and the NBA, signing a five-year contract with the team.[143] However, the newly rebranded Washington Capitols ABA team sued Barry in federal court seeking an injunction to prevent him from playing for another team.[144] Similar to Greg Norman in 1994 announcing his departure from the PGA Tour,[145] this suit marked the beginning of a contentious period between the two leagues.

In May of 1970, the ABA and NBA agreed on terms to merge the two leagues.[146] Upset by the potential ramifications of a monopolized professional basketball league, Oscar Robertson and the National Basketball Players Association (NBPA) filed a lawsuit seeking an injunction preventing the merger.[147] The injunction was granted, halting the merger.[148] In the suit, Robertson claimed that the goal of the merger directly violated §§ 1 and 2 of the Sherman Act.[149] In ruling on the NBA’s motion for summary judgment, the court looked at both rule of reason and per se violations of the Sherman Act.[150] The court stated that the perpetual reserve system was analogous to two per se violations: acting as a price-fixing device and as a device creating an illegal horizontal territorial allocation.[151] As a result, the court denied the defendant’s motion and granted Robertson’s injunction halting the merger.[152] This denial gave Robertson and the NBPA newfound bargaining power over the NBA. The NBPA entered settlement negotiations with the summary judgment denial and a modified injunction.[153]

Once the parties settled the litigation, a proposed merger was announced in 1976.[154] Despite the merger finally being completed, Oscar Robertson’s actions would leave an impact that is felt in the NBA today. To get the players to agree to the merger, the league adopted the Oscar Robertson Rule, eliminating the reserve clause from the NBA.[155] Similar to the MLB, the elimination of the reserve clause gave the players the ability to solicit offers from other teams once their contracts ran up.[156]

V. (W)hole in One?

Whether through statutory exemptions or by looking at the totality of the circumstances, precedent exists for the federal government in deciding the constitutionality of the announced PGA–LIV merger. This merger presents numerous similarities to prior mergers, but also provides a new factor with the presence of foreign funding.[157] This part will discuss the proposed merger and it will provide a framework for how the merger could eventually be resolved.

A. The Merger

On June 6, 2023, the PGA Tour and LIV Golf announced a merger that sent shockwaves through both the sports and legal communities.[158] The two tours, despite the tensions of the past few years and pending litigation, decided it was best for them to merge into one, united professional golf tour.[159] The parties agreed that the PGA Tour would continue as a nonprofit organization and remain in full control over the way in which its tournaments are played.[160] However, the parties also established “NewCo.”[161] NewCo is a for-profit entity that will control all of the PGA and DP World Tour’s commercial businesses and rights, and the Public Investment Fund of the Kingdom of Saudi Arabia (PIF) will contribute its golf-related investments (LIV Golf), along with a cash investment.[162] NewCo will be led by Yasir Al-Rumayyan and Jay Monahan, who will serve as the Chairman of the board of directors and the CEO of NewCo, respectively.[163] Despite having this framework agreement in place, a lot of the agreement is still subject to change, in an attempt to avoid pressure from the DOJ.[164] One important provision that has not changed is that both sides have dismissed their litigation against each other.[165]

As for the players, the reaction to the announced merger was split between the two tours. The LIV players were extremely pleased with the merger.[166] These players received a life-changing payday from the PIF for joining LIV and now have a clear path to return to the PGA Tour if the proposed merger goes through.[167] Phil Mickelson, the first major player to join LIV, tweeted his pleasure with the announced merger almost immediately after it was announced.[168]

On the other hand, PGA Tour players were less excited about the announced merger.[169] Players were blindsided by the announcement, only learning about it when the public did.[170] On the day the merger was announced, Monahan held a meeting where players called for his resignation and quoted the commissioner, showing his hypocrisy.[171] In contrast with Mickelson’s excitement from the announcement of the deal, McIlroy, one of the most influential PGA Tour players, admitted that even he had reluctantly “come to terms” with the agreement.[172]

Before the dust had settled on the merger, the DOJ announced that it was launching an investigation into the merger.[173] Even though golf officials have turned over documents, released communications, and held a hearing,[174] the question remains whether the merger violates antitrust law or if it will be held legal in line with MLB and NBA mergers.

B. Differentiating This Merger

The PGA Tour–LIV Golf merger vastly differs from previous mergers in professional sports. Unlike both the MLB and NBA mergers above, professional golf has a much greater international presence, with the PGA Tour hosting tournaments on four continents in the past few years.[175] Adding to this, LIV Golf is funded primarily by the Saudi wealth fund, and no other American professional sports have such international ties.[176] Professional golf is clearly involved in both interstate and international commerce.

On its face, the PGA–LIV merger looks to be substantively similar to the NBA–ABA merger. Both mergers involved one league with a larger footprint merging with a second league that had disrupted their presence with an innovative approach to the game.[177] Both mergers sought to try and combine the two competing leagues by using the advantages of both. However, the golf merger is distinct because of the international ties the sport has and the public actions of both tours.

This merger also has similarities to the MLB merger over a century ago.[178] One of the primary reasons for golfers leaving the PGA Tour is the numerous contractual restrictions and disproportionately low payment that the PGA gives.[179] This same worry has been the subject of many challenges to the MLB merger.[180] Despite any similarities between the two mergers, the MLB merger is a difficult case to provide comparisons to as it remains the sole professional sports league with a statutory exemption to the antitrust laws.[181] Therefore this golf merger is substantially different from the MLB merger because it is extremely unlikely that golf will be granted a statutory exemption.

C. The Unconstitutionality of the Merger

Although the terms of the agreement have not been finalized, recent antitrust guidelines provide insight into how the investigators will rule. Despite the potential arguments from the parties, both the PGA Tour and LIV Golf will wish they could have a “mulligan” from their prior words and actions. The proposed merger violates competition policy for two main reasons: it eliminates the only viable competitor, and the merger creates cognizable harm to consumers.

1. The Proposed Merger Constitutes a Per Se Violation of § 7 of the Clayton Act.

As Jay Monahan said, he “felt very good” about the position that the PGA Tour was in after “tak[ing] the competitor off of the board . . . and for us to be able to control the direction going forward.”[182] These words represent a per se violation of the Clayton Antitrust Act on their own.[183] Section 7 of the Clayton Act provides a test for mergers between corporations, stating that a merger is illegal if the effect of the acquisition “substantially . . . lessen[s] competition, or . . . tend[s] to create a monopoly.”[184] As discussed above, LIV Golf was the first competitor to succeed against the PGA Tour. Players left the PGA Tour to join LIV as it addressed some of their biggest concerns. The proposed merger combining the two major professional golf tours would rid the professional golf marketplace of any viable competition.[185] This would once again create a professional golf marketplace with only one product in the market.

In December 2013, the DOJ released new merger guidelines for agencies to use when evaluating a merger.[186] Guideline 3 immediately seems to override this merger. This guideline states that mergers potentially violate the law if it increases the risk of coordination.[187] At issue here are two of the primary factors considered under this guideline: (1) a highly concentrated market, and (2) the elimination of a maverick.[188] Market concentration measures the extent to which market shares are concentrated between a small number of firms,[189] and “[a] maverick is a firm with a disruptive presence” in a specific market.[190]

Recently, these factors were used by the DOJ to block the merger between JetBlue Airways and Spirit Airlines. As part of the complaint filed in the suit, the DOJ alleged that the proposed merger would eliminate a disruptive force in the travel sphere.[191] In holding that the merger violated competition policy, the court held that eliminating Spirit would dampen its disruptive presence, limiting its ability to innovate in the airline marketplace.[192] The court concluded that a “cognizable harm” would result due to the removal of Spirit.[193]

The PGA–LIV merger provides an almost identical parallel to the blocked airline merger. As a result of this merger, NewCo, the company owning the rights to the PGA Tour, LIV Golf, and the DP World Tour, would control the three largest professional golf tours.[194] NewCo will be able to coordinate the schedule of the newly created tour to block any new competitor from developing any market share.[195] Since its existence, LIV Golf has operated as a maverick in the golf industry.[196] As the guidelines state, “A merger that eliminates a maverick . . . increases the susceptibility to coordination.”[197] Although the terms of the merger have not been finalized, the agreement stated that the new entity would retain some of the elements that have made LIV so successful as a maverick.[198] This would take away some of the key selling points of any future competitors and substantially reduce the competition in the market.

In response to this argument, LIV may raise the “failing company” doctrine. The premise of this doctrine is that the adverse effects on competition that may result are preferable to the harm that would result if the company went out of business.[199] Typically, this argument is raised by companies that are going bankrupt to justify a merger.[200] However, this would not succeed as a defense for LIV Golf because of the amount of wealth that the PIF controls.[201] LIV might argue that troubles finding a television deal and subsequently increasing its following create a “failing company” scenario, but this argument will not hold muster. LIV will not win on a “failing company” defense unless it files a bankruptcy claim, which it has not yet done.[202]

The merger is also a direct violation of competition policy under § 7 of the Clayton Act. Section 7 outlaws mergers that tend to create a monopoly.[203] The proposed merger tends to create a monopoly because it would entrench NewCo and the new Tour as the dominant golf tour. Guideline 6 from the DOJ states that a merger can violate the law when it entrenches or extends a dominant position in the market.[204] In this analysis, the agency first assesses whether one of the firms has a dominant position in the market.[205] The PGA Tour does have a dominant position in the market. The Tour has existed for over 100 years, and until LIV, had always been able to quash any potential competitors.[206] Since LIV was established, the PGA has continued to hold a dominant position in professional golf. LIV has struggled to get media deals that compete with the PGA.[207] This merger also eliminates a competitive threat to the dominant PGA Tour. Although LIV was not operating at the same scale as the PGA Tour, it is growing at a steady rate and has the potential to grow into a significant rival. As the guidelines state, the most likely successful threat can be one that specializes in an overlapping customer segment with a distinct product.[208] LIV did offer this distinct product. The shotgun starts, team play, and no-cut three-day tournaments symbolize a distinct product with an overlapping customer segment.

A merger’s elimination of a product that consumers prefer is a cognizable harm to the market.[209] Although not yet at the same scale as the PGA Tour, the growth that LIV has seen in the past few years has not been seen before in the game of golf.[210] Fans have been drawn to the sport due to the modifications LIV has made to the game of golf.[211] The removal of LIV from the professional golf marketplace would create a cognizable harm to the consumers of golf, and once again, the PGA Tour would be able to have an unchallenged monopoly over golf.

Regaining its monopoly status, the PGA would once again be able to control compensation and players’ rights. With no current union representing the players, there is very little that the players would be able to do to protect themselves in this situation.[212] As the Tour has done in the past, having this dominant position in the market will allow them to once again limit player compensation, place harsh restrictions in their contracts, and quash any potential competition.[213] Thus, the merger would likely entrench the PGA Tour’s position as the dominant factor in the market, establishing it as a monopoly, constituting a per se violation of § 7.

In conclusion, despite inevitable counterarguments by the parties, the proposed merger eliminates the only viable competitor in professional golf, establishes a monopoly in professional golf, and would create “cognizable harm” in the professional golf marketplace.

2. Under the Rule of Reason, This Merger Violates Competition Policy.

The parties, PGA Tour and LIV Golf, will mention some of the corollaries between this merger and those that created the MLB and NBA. The parties will argue that a rule of reason analysis is preferred, and a totality of the circumstances shows that this merger will increase competition and favor market circumstances. However, this argument is flawed.

First, the parties will argue that this merger increases competition. This argument hinges on the fact that even though the market is now more concentrated, the new tour will offer more opportunities for professional golfers. Similar to the MLB, the PGA Tour has a developmental tour in place with the Korn Ferry Tour.[214] This tour opens up more opportunities for golfers to develop their skills before joining the PGA Tour. The other reason this agreement would increase competition is by once again bringing all of the world’s best golfers to the same tournaments every weekend. While not competition in the market, this merger would increase competition on the course, and likely participation from consumers.

Second, the parties will argue that the market circumstances surrounding the merger benefit as a result. The merger will make professional golf more accessible to the public. Fans of the sport will only be watching one tournament per week instead of two, and the best golfers will be competing against each other each week. This will allow better television deals and increased guaranteed money for the players because it will make it easier to reach advertising deals with all the star players back in one organization. Coexistence favors marketing agreements, and the proposed merger is no exception.[215] Immediately following the merger announcement, LIV received vastly increased marketing opportunities due to the future coexistence.[216] Finally, combining the team format from LIV and the apparel can add new viewers of Tour events by adding an element that has not existed in the PGA Tour before.[217]

Despite these arguments, the totality of the circumstances shows that this merger would create an unlawful restraint on competition. Even with both the legal and societal changes in the past century, the factors from Standard Oil still apply. The merger will have difficulty persuading a court that factors two and three would not create an unlawful restraint on competition.[218] The second factor looks at the ability of the corporation to force competitors to become members of the combination to survive.[219] As discussed above, much of the discontent from golfers throughout the PGA Tour’s history was the fact that they were not able to compete in other competitions without breaking their contract with the Tour. The merger would eliminate the only viable competitor that players were willing to break their contracts with the Tour to join. Golfers would be faced with the pressure to join the new Tour and comply with any contractual restrictions and obligations if and when a new viable competitor can be established. Thus, the second listed factor from Standard Oil seems to favor blocking the merger.

The third factor from Standard Oil states that the court examined the ability to control the price and supply of oil.[220] This correlates to the golf merger as the ability to control the supply and accessibility of golf to consumers. Unlike the MLB or NBA, where players have a union to represent them in negotiations with the league, professional golfers do not.[221] Thus, it becomes more difficult for the players to ensure that their concerns would be heard by the Board of Directors, let alone listen to their concerns. If the Board decided to start holding fewer tournaments, allowing a smaller number of players into tournaments, or lowering guaranteed payouts, there would be no active competitor that golfers could join. The effect of allowing this merger is that the new Tour would have all the market power to control the accessibility of golf, and the players would be left with little that they can do about it. The third Standard Oil factor also weighs against the merger.

The totality of the circumstances weighs against allowing the proposed merger to proceed. The merger entrenches the PGA Tour’s position as the dominant factor in professional golf, will force golfers to join the combination to survive, and allows the new Tour to have complete control over the accessibility of golf to both players and consumers. The anticompetitive effects of the merger vastly outweigh any procompetitive effects that would result. Thus, the proposed merger violates the rule of reason as an unreasonable restraint on the market.

VI. Conclusion

If the PGA–LIV merger proceeds as announced, the DOJ will declare it to be an unconstitutional violation of competition policy. Despite the advantages the merger could provide to the game of golf, the merger gets rid of the main competitor in the professional golf marketplace, resulting in a highly concentrated market, and creates a monopoly. Given the potential downsides exhibited by other sports leagues as monopolies and the PGA in its history, the legal and best course of action is to prohibit this merger. LIV Golf succeeded as being a maverick in the realm of professional golf, and the merger clearly seeks to eliminate the PGA Tour’s main competitor. The guidelines published by the DOJ list many factors to consider when analyzing the constitutionality of a merger. This Note merely highlighted a few of the many factors that should be used to block the merger. In conclusion, the merger between the PGA Tour and LIV Golf should be prevented as both a per se and rule of reason violation of U.S. antitrust law.

Joe Lipper

  1. Golf Industry Facts, Nat’l Golf Found., https://www.ngf.org/golf-industry-research/ [https://perma.cc/L4DL-ZYXA] (last visited Sept. 11, 2024) (Participating in golf is defined as playing golf on or off course, following the sport on television or online, reading about the game, or listening to a golf-related podcast).

  2. The 5 Most Profitable Sports Leagues in the US, Mirror Rev., https://www.mirrorreview.com/profitable-sports-leagues/ [https://perma.cc/W4AR-MBUC] (last visited Sept. 9, 2024); Jonah Smith, TWISH: The Modern Era of the NFL Is Born, Me. Campus (Nov. 6, 2023), https://mainecampus.com/category/sports/2023/11/twish-the-modern-era-of-the-nfl-is-born/ [https://perma.cc/W4AR-MBUC]; Bill Nowlin, Did MLB Exist Before the Year 2000?, Soc’y for Am. Baseball Rsch., https://sabr.org/journal/article/did-mlb-exist-before-the-year-2000/ [https://perma.cc/8NBA-HZC6] (last visited Sept. 16, 2024); Trevona Williams, This Week in History: NBA, ABA Merge, Sports Bus. J. (June 17, 2024), https://www.sportsbusinessjournal.com/Articles/2024/06/17/this-week-in-history [https://perma.cc/WU7L-9YDP].

  3. See David McCabe, U.S. Accuses Amazon of Illegally Protecting Monopoly in Online Retail, N.Y. Times (Sept. 26, 2023), https://www.nytimes.com/2023/09/26/technology/ftc-amazon.html [https://perma.cc/XBW9-RZYG]; David McCabe & Cecilia Kang, ‘A Monopolist Flexing’: U.S. Blasts Google’s Tactics as Antitrust Trial Opens, N.Y. Times (Sept. 12, 2023), https://www.nytimes.com/2023/09/12/technology/google-monopoly-antitrust-trial.html [https://perma.cc/Z9CX-7KKM]; Curt Flood Act of 1998, Pub. L. No. 105-297, 111 Stat. 2824.

  4. Kevin Draper, The Alliance of LIV Golf and the PGA Tour: Here’s What to Know, N.Y. Times, https://www.nytimes.com/2023/06/07/sports/golf/pga-liv-golf-merger.html [https://perma.cc/SPR6-XB4P] (last updated July 17, 2023).

  5. See Laura Phillips Sawyer, US Antitrust Law and Policy in Historical Perspective 10–11 (Harv. Bus. Sch., Working Paper No. 19-110, 2019).

  6. Id. at 1–2.

  7. Id. at 2.

  8. Id.

  9. Id.

  10. Id.

  11. Id.

  12. Id. at 5.

  13. Id.

  14. Id.

  15. Id. at 6.

  16. See id. at 1, 6.

  17. Sherman Antitrust Act, 15 U.S.C. § 1.

  18. See 15 U.S.C. § 2.

  19. Sawyer, supra note 5, at 7 (stating that “prosecutors must provide evidence of a specific action in restraint of trade”).

  20. United States v. E.C. Knight Co., 156 U.S. 1, 17, 44 (1895).

  21. Id. at 17.

  22. Id.

  23. See infra Section IV.A.

  24. Sawyer, supra note 5, at 7.

  25. Id.

  26. Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 212–13 (1899) (The Court concluded that the agreement prohibited “competition between them . . . in regard to the manufacture and sale of cast-iron pipe” in thirty-six states).

  27. Id. at 215.

  28. William H. Rooney et al., Tracing the Evolving Scope of the Rule of Reason and the Per Se Rule, 2021 Colum. Bus. L. Rev. 1, 3–4.

  29. Addyston Pipe, 175 U.S. at 238 (holding that the effect of this combination was to enhance prices beyond a reasonable sum).

  30. Standard Oil Co. v. United States, 221 U.S. 1, 66–67 (1911).

  31. Id. at 70–74 (holding that a combination or conspiracy in restraint of trade arose when corporate stock was transferred to and held by the trustees, resulting in control over various subsidiary corporations).

  32. Id. at 32–33.

  33. Id.

  34. Elements of the Offense, U.S. Dep’t of Just. (Nov. 2017), https://www.justice.gov/archives/jm/antitrust-resource-manual-1-attorney-generals-policy-statement [https://perma.cc/73R9-FK88].

  35. Antitrust Laws, Cornell L. Sch.: Legal Info. Inst., https://www.law.cornell.edu/wex/antitrust_laws [https://perma.cc/LQX4-4XMD] (last updated Oct. 2024).

  36. Id. (the totality of the circumstances test looks at all factors available and asks whether the act in question promotes or suppresses competition in net).

  37. Bd. of Trade v. United States, 246 U.S. 231, 238 (1918) (articulating that courts must look at the “facts peculiar to the business” subject to restraint; the business’s condition pre- and post-restraint; and the nature and effect of the restraint, actual or probable).

  38. Herbert Hovenkamp, The Rule of Reason, 70 Fla. L. Rev. 81, 132–33 (2018).

  39. Michael A. Carrier, The Four-Step Rule of Reason, Antitrust, Spring 2019, at 50, 50.

  40. Id.

  41. Id.

  42. See id. at 51.

  43. Sawyer, supra note 5, at 10 (stating that Wilson campaigned on a theory of “‘regulat[ing] competition’ by prosecuting monopolies,” whereas Theodore Roosevelt ran on a “promise to ‘regulate monopoly’ by bringing them under administrative supervision”).

  44. Id. at 10–11.

  45. See Ellen Terrell, Clayton Antitrust Act Enacted, Libr. of Cong. Rsch. Guides, https://guides.loc.gov/this-month-in-business-history/october/clayton-anitrust-enacted [https://perma.cc/P3R9-4H4G] (last updated July 2021).

  46. See Clayton Antitrust Act, 15 U.S.C. §§ 13, 18, 19.

  47. Id.

  48. Farrell Evans, Who Invented Golf?, History, https://www.history.com/news/who-invented-golf-origins [https://perma.cc/JE7X-KAVR] (last updated June 20, 2023).

  49. Id.

  50. Id.

  51. Brief Tour History and Chronology, PGA Tour, https://www.pgatour.com/players/brief-history [https://perma.cc/QRP9-FC98] (last visited Aug. 27, 2024).

  52. Evans, supra note 48.

  53. Governing Body for U.S. Golf Is Founded, History, https://www.history.com/this-day-in-history/golf-usga-united-states-governing-body [https://perma.cc/2ADB-XSMF] (last updated Dec. 19, 2024).

  54. Brief Tour History and Chronology, supra note 51.

  55. PGA Is Formed, History, https://www.history.com/this-day-in-history/pga-is-formed [https://perma.cc/EB6H-62DX] (last updated Jan. 16, 2024).

  56. Id.

  57. Brief Tour History and Chronology, supra note 51.

  58. Al Barkow, The History of the PGA Tour 41–42 (1989).

  59. Id. at 45–46.

  60. Id. at 46.

  61. Id.

  62. Brief Tour History and Chronology, supra note 51.

  63. The Increases in Professional Golf’s Prize Money and Purses are Staggering, Golf Digest (Feb. 28, 2023), https://www.golfdigest.com/story/prize-money-jump-golf-2023 [https://perma.cc/UC4U-KS7M]; Adam Chandler Crawford, How Much Have Pro Golfers’ Scores Improved Since 1960?, Golf News Net (Mar. 21, 2017), https://thegolfnewsnet.com/adamcrawford/2017/03/21/pro-golfers-scores-improved-1960-103938/ [https://perma.cc/NA7A-PSLD].

  64. Garry Smits, PGA Tour Announces Alliance with European PGA Tour; May Lead to More Globalization of Golf, Fla. Times-Union (Nov. 27, 2020, 11:24 AM), https://www.jacksonville.com/story/sports/golf/2020/11/27/pga-tour-announces-strategic-alliance-european-pga-tour/6437482002/ [https://perma.cc/H62T-3AKQ]; History of the PGA, PGA of Am., https://www.pga.org/history/ [https://perma.cc/JPB6-AZ2D] (last visited Aug. 27, 2024).

  65. David Willman, PGA Outclubs FTC in Antitrust Fight, L.A. Times (Oct. 22, 1995, 12:00 AM), https://www.latimes.com/archives/la-xpm-1995-10-22-fi-59876-story.html [https://perma.cc/4NAM-9R4W] (stating that the investigation was sought to nullify two PGA rules all golfers must accept as a condition of joining the tour).

  66. Id.

  67. Id.

  68. Id.

  69. Id.

  70. Sean Zak, LIV Golf Timeline: How We Arrived at Pro Golf’s Civil War, Golf (Sept. 8, 2022), https://golf.com/news/timeline-liv-golf-how-we-arrived-pro-golf-civil-war/ [https://perma.cc/N2S7-P53L].

  71. Id.

  72. Id.

  73. Id.

  74. Id.

  75. Id.

  76. Id. (referencing Greg Norman’s public announcement that he was planning on leaving the PGA Tour).

  77. Id.

  78. Id.

  79. Id.

  80. Id.

  81. Id.

  82. See id.

  83. Id.

  84. Id.

  85. Id.

  86. Id.

  87. See id. (the European Tour is a separate entity from the PGA Tour).

  88. Id.

  89. Id.

  90. Id.

  91. Id.

  92. Id.

  93. Id.; see also Jacob Camenker, What Does LIV Golf Stand for? Explaining the Name, Meaning of the Saudi-Backed Invitational Tour, Sporting News (Sept. 2, 2022, 7:52 AM), https://www.sportingnews.com/us/golf/news/liv-golf-tour-name-invitational-series-meaning-explained/ietdisstrdtxa8k3u2s5c5kq [https://perma.cc/FF8T-AF75] (the Super Golf League was renamed LIV to symbolize the fifty-four-hole tournaments in Roman numerals).

  94. See Zak, supra note 70.

  95. Id.

  96. Id.; see Lorain J. Co. v. United States, 342 U.S. 143, 152–54 (1951) (holding that a publisher’s attempt to monopolize by forcing members to boycott competitors violated the antitrust laws).

  97. See Jeff Smith, Greg Norman Slams the PGA Tour’s “Illegal Monopoly,” Pro Golf Wkly. (May 11, 2022), https://progolfweekly.com/greg-norman-slams-the-pga-tours-illegal-monopoly/ [https://perma.cc/8ULW-S5KV].

  98. Zak, supra note 70.

  99. Complaint at 1, 91, 93, Mickelson v. PGA Tour, Inc., No. 3:22-cv-04486 (N.D. Cal. Aug. 3, 2022).

  100. Id. at 2 (listing some of the alleged monopolistic actions the PGA has taken).

  101. See id. at 6, 17–19, 41–42 (stating that if the league is deprived of all top golfers “it will pose no challenge to the Tour’s dominance”).

  102. See Jonathan Gordon, Baseball’s Antitrust Exemption: Is It Time for a Change?, Law in Sport (Oct. 2, 2014), https://www.lawinsport.com/topics/item/baseball-s-anti-trust-exemption-is-it-time-for-a-change [https://perma.cc/5UD4-H3CX].

  103. Fed. Baseball Club of Balt., Inc. v. Nat’l League of Pro. Baseball Clubs, 259 U.S. 200, 208–09 (1922). The Federal League sued both the National League and the American League to prevent a merger between the two leagues. Id. at 207. The Federal League claimed that the proposed merger would monopolize baseball and destroy competition therein by restraining trade. Id.

  104. Id. at 209.

  105. Id.

  106. Jennifer K. Ashcraft & Craig A. Depken, II, The Introduction of the Reserve Clause in Major League Baseball: Evidence of Its Impact on Select Player Salaries During the 1880s, at 3 (Int’l Ass’n of Sports Economists, Working Paper, Paper No. 07-10, 2007), https://college.holycross.edu/hcs/RePEc/spe/AshcraftDepken_ReserveClause.pdf [https://perma.cc/K7US-E6WC].

  107. Id. at 3–4 (stating that the goal was to prevent high revenue teams from dominating the market for the best players).

  108. 1953: Brave New World, This Great Game, https://thisgreatgame.com/1953-baseball-history/ [https://perma.cc/JHY6-33SD] (last visited Nov. 16, 2023).

  109. Toolson v. N.Y. Yankees, Inc., 346 U.S. 356, 357 (1953) (holding that Congress has had the ability to regulate the MLB but has not shown the intent to do so).

  110. Id. at 357–58.

  111. Id. (Burton, J., dissenting) (reasoning that with organized baseball comprising 380 separate baseball clubs in forty-two different states, baseball was involved in interstate commerce).

  112. Flood v. Kuhn, 407 U.S. 258, 264 (1972).

  113. See id. at 265.

  114. Id.

  115. Id.

  116. Id.

  117. Id. at 282. Justice Blackmun described the reserve system as an “aberration,” and while others might see the system as “illogical,” the system had been around for over half a century and deserved stare decisis treatment. Id.

  118. Id. at 283.

  119. Id. at 283–84.

  120. Roger Abrams, Arbitrator Seitz Sets the Players Free, Soc’y for Am. Baseball Rsch., https://sabr.org/journal/article/arbitrator-seitz-sets-the-players-free/ [https://perma.cc/RR5T-XSHT].

  121. Id.

  122. Id.

  123. Id.

  124. Kan. City Royals Baseball Corp. v. Major League Baseball Players Ass’n, 409 F. Supp. 233, 236–37 (W.D. Mo. 1976).

  125. Id. at 260; Kan. City Royals Baseball Corp. v. Major League Baseball Players Ass’n, 532 F.2d 615, 632 (8th Cir. 1976).

  126. Garrett R. Broshuis, Touching Baseball’s Untouchables: The Effects of Collective Bargaining on Minor League Baseball Players, 4 J. Sports & Ent. L. 51, 71–72 (2013) (stating that the agreement overhauled the reserve system and awarded free agency after six years).

  127. Paul D. Staudohar, The Baseball Strike of 1994–95, Monthly Lab. Rev., Mar. 1997, at 21, 21–22 (stating that the first strike occurred in 1912, and, in the modern era, there were eight work stoppages between 1972 and 1994–1995).

  128. Id. at 24.

  129. Id.

  130. Id. at 25.

  131. Id.

  132. Id. at 26; #DiamondDebates: MLB Strike, Nat’l Baseball Hall of Fame, https://baseballhall.org/discover-more/stories/whole-new-ballgame/mlb-strike [https://perma.cc/87TK-JNPM] (last visited Jan. 19, 2024).

  133. Curt Flood Act of 1998, 15 U.S.C. § 26b.

  134. Curt Flood Act of 1998, Pub. L. No. 105-297, 112 Stat. 2824.

  135. David Berri, Oscar Robertson, Antitrust, and the Fight Against Monopsony Power in the NBA, 66 Antitrust Bull., 328, 332 (2021) (stating that the BAA teams struggled to make money and in 1949 merged with the National Basketball League to form the NBA).

  136. Id. at 333.

  137. See id. at 335.

  138. Id. at 335–36 (stating that the ABA differed from the NBA by using a red, white, and blue ball; having a three-point shot; and having the first slam dunk contests).

  139. See id. at 336–37.

  140. Id. at 339.

  141. Id. at 340.

  142. Id. at 340–42.

  143. Wash. Capitols Basketball Club, Inc. v. Barry, 304 F. Supp. 1193, 1196 (N.D. Cal. 1969).

  144. Id. at 1202.

  145. Zak, supra note 70.

  146. Berri, supra note 135, at 345.

  147. Robertson v. Nat’l Basketball Ass’n, 389 F. Supp. 867, 872–73 (S.D.N.Y. 1975).

  148. Id. at 873.

  149. Id. at 874; see supra text accompanying notes 17–18.

  150. Robertson, 389 F. Supp. at 892–93.

  151. Id. at 893.

  152. Id. at 896.

  153. Id. at 873 (noting the order this court previously issued was modified to state that merger negotiations could commence as long as any agreement dealt specifically with the reserve clause among other things).

  154. Berri, supra note 135, at 356.

  155. Id. at 356–57.

  156. Id. at 346, 357.

  157. Matt Perault & Asheesh Agarwal, Live and Let LIV?, Lawfare (July 12, 2023, 8:00 AM), https://www.lawfaremedia.org/article/live-and-let-liv [https://perma.cc/2R6U-CJTZ].

  158. See Draper, supra note 4; Ted Tatos, The PGA–LIV Merger Was No Surprise: Neither Should Be What Comes Next, and Players Should Be Ready for It, Sling (June 7, 2023), https://www.thesling.org/the-pga-liv-merger-was-no-surprise-neither-should-be-what-comes-next-and-players-should-be-ready-for-it/ [https://perma.cc/C3G6-3N7V].

  159. See supra notes 95–101 and accompanying text; Tatos, supra note 158.

  160. Draper, supra note 4.

  161. Id.

  162. Framework Agreement, https://int.nyt.com/data/documenttools/framework-agreement/e6d16d2b509ae1fa/full.pdf [https://perma.cc/6S2S-89NM] [hereinafter The Agreement].

  163. Id.

  164. Id. (stating that only paragraphs 6, 9, and 10 are legally effective); Draper, supra note 4 (stating that the nonsolicitation clause has been removed); Dylan Dethier, Why Jon Rahm Left for LIV Golf, Golf (Dec. 28, 2023), https://golf.com/news/jon-rahm-left-liv-golf/ [https://perma.cc/AT4R-Z3P3] (stating that Jon Rahm has joined LIV Golf since the framework agreement and nonsolicitation clause has been removed).

  165. Alan Blinder, PGA Tour and LIV Golf Seek to Drop Litigation Against Each Other, N.Y. Times (June 16, 2023, 9:07 PM), https://www.nytimes.com/2023/06/16/sports/golf/liv-pga-tour-lawsuit.html [https://perma.cc/843W-Z4J6].

  166. Draper, supra note 4.

  167. Id. See The Agreement, supra note 162, paragraph 5, which provides for the parties to “work cooperatively and in good faith to establish a fair and objective process for any players who desire to re-apply for membership with the PGA TOUR.”

  168. Draper, supra note 4; Phil Mickelson (@PhilMickelson), Twitter (June 6, 2023, 8:08 AM), https://twitter.com/PhilMickelson/status/1666084757816610819 [https://perma.cc/7YY5-GK57].

  169. Draper, supra note 4. Players also struggled to understand why the Tour waged its legal war against LIV, only to eventually acquiesce to it. Id.

  170. Id.

  171. Id. During the meeting, one player quoted Monahan as saying “As long as I’m commissioner of the PGA Tour, no player that took LIV money will ever play the PGA Tour again.” Id.

  172. Id.

  173. US Justice Department to Investigate PGA Tour-LIV Golf Pact, Wall Street Journal Reports, Reuters (June 15, 2023, 6:03 PM), https://www.reuters.com/sports/us-doj-investigate-pga-tour-liv-golf-pact-wsj-2023-06-15/ [https://perma.cc/F4DZ-RSKK].

  174. Leah Nylen et al., Senate’s Golf Probe Reveals Secret Outreach by UK Businessman to PGA Tour for Months on Behalf of Saudi PIF Boss, Fortune (July 11, 2023, 12:02 PM), https://fortune.com/europe/2023/07/11/senate-golf-pga-tour-saudi-arabia-uk-businessman-emails-antitrust/ [https://perma.cc/RW2L-75UX].

  175. See Ben Fleming, Which Countries Does The PGA Tour Have Tournaments In?, Golf Monthly (Feb. 9, 2023), https://www.golfmonthly.com/news/which-countries-does-the-pga-tour-have-tournaments-in [https://perma.cc/86JN-9ZXN].

  176. Karim Zidan, Saudi Arabia Has Bought into Soccer and Golf. Will the NBA and NFL be Next?, Guardian (June 9, 2023, 3:15 AM), https://www.theguardian.com/sport/2023/jun/09/saudi-arabia-soccer-golf-nba-nfl-sportswashing [https://perma.cc/76EQ-74CS]; see Ed Dixon, Private Property: Where Do the Top Sports Leagues Stand with Private Equity?, Sports Pro Media (Jan. 14, 2022), https://www.sportspromedia.com/insights/features/sport-private-equity-nba-nfl-mlb-nhl-mls-laliga-serie-a-bundesliga-ligue-1-premier-league/ [https://perma.cc/XZQ3-XEJ6].

  177. See supra notes 138–39 and accompanying text; see infra note 196.

  178. See Fed. Baseball Club of Balt., Inc. v. Nat’l League of Pro. Baseball Clubs, 259 U.S. 200, 207–08 (1922).

  179. See supra notes 82–91 and accompanying text.

  180. Flood v. Kuhn, 407 U.S. 258, 264–65 (1972); Abrams, supra note 120.

  181. Curt Flood Act of 1998, 15 U.S.C. § 26b(d)(4).

  182. Eric Cortellessa, How Antitrust Laws Could Kill the PGA-LIV Golf Merger, TIME (June 8, 2023, 3:29 PM), https://time.com/6285954/pga-liv-merger-antitrust-law/ [https://perma.cc/S97W-DQWF].

  183. See 15 U.S.C. § 18.

  184. Id.

  185. The Agreement, supra note 162 (including in the merger not only the PGA Tour and LIV Golf, but also the DP World Tour). The DP World Tour is a professional golf league in Europe. What Are the Professional Golf Tours?, Golf Blogger (July 30, 2022), https://golfblogger.com/what-are-the-professional-golf-tours/ [https://perma.cc/5GMT-MDA8].

  186. Merger Guidelines § 1 (U.S. Dep’t of Just. & Fed. Trade Comm’n 2023).

  187. Id. § 2.3.

  188. Id. § 2.3A.

  189. Org. for Econ. Coop. & Dev., Market Concentration 6 (2018), https://www.oecd.org/en/publications/market-concentration_7231c298-en.html [https://perma.cc/R8C3-L7D5].

  190. Merger Guidelines § 2.3A (U.S. Dep’t of Just. & Fed. Trade Comm’n 2023).

  191. Justice Department Sues to Block JetBlue’s Proposed Acquisition of Spirit, Off. of Pub. Affs.: Dep’t of Just., https://www.justice.gov/opa/pr/justice-department-sues-block-jetblue-s-proposed-acquisition-spirit [https://perma.cc/M8NP-V9U8] (last updated Mar. 7, 2023).

  192. United States v. JetBlue Airways Corp., 712 F. Supp. 3d 109, 153, 164 (D. Mass. 2024).

  193. Id. at 153.

  194. The Agreement, supra note 162; What Are the Professional Golf Tours?, supra note 185.

  195. The Agreement, supra note 162.

  196. Some of the maverick tendencies of LIV Golf include the lucrative, guaranteed contracts; fifty-four-hole tournaments; no cuts; shotgun starts; team play; and the ability to have a social media presence. Fergus Bisset, 9 Ways LIV Golf Is Different to the PGA Tour, Golf Monthly (Feb. 2, 2023), https://www.golfmonthly.com/features/9-ways-liv-golf-is-different-to-the-pga-tour [https://perma.cc/2FLN-BK3W]; Gabby Herzig, YouTube Golf Is Taking Over. Will the PGA Tour ‘Like and Subscribe’?, N.Y. Times: The Athletic (July 16, 2024), https://www.nytimes.com/athletic/5639577/2024/07/16/golf-youtube-bryson-dechambeau-pga-tour/ [https://perma.cc/LEN9-CPAE].

  197. Merger Guidelines § 2.3A (U.S. Dep’t of Just. & Fed. Trade Comm’n 2023).

  198. The Agreement, supra note 162.

  199. United States v. Gen. Dynamics Corp., 415 U.S. 486, 506–07 (1974).

  200. Kyle DiGangi, Note, Cutting the Financial Fat from the Failing Firm Defense, 86 St. John’s L. Rev. 277, 285 (2012).

  201. Ashan Singh et al., LIV Golf’s Controversial Growth Raises Questions Over Saudi ‘Sportswashing,’ ABC News (Mar. 15, 2024, 5:15 AM), https://abcnews.go.com/International/liv-golfs-controversial-growth-raises-questions-saudi-sportswashing/story?id=108042495 [https://perma.cc/ZJY9-3MSZ].

  202. Citizen Publ’g Co. v. United States, 394 U.S. 131, 136–38 (1969) (holding that to successfully raise the failing firm defense, the company must prove (1) the grave probability of business failure, (2) there is a nonexistent prospect of reorganization, and (3) that the purchasing company is the only possibility).

  203. The Antitrust Laws, Fed. Trade Comm’n, https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/antitrust-laws [https://perma.cc/4VT4-6WRN] (last visited Sept. 9, 2024).

  204. Merger Guidelines § 2.6 (U.S. Dep’t of Just. & Fed. Trade Comm’n 2023).

  205. Id.

  206. Brief Tour History and Chronology, supra note 51.

  207. Bill Shea, LIV Golf’s New TV Deal with the CW Explained: Will Anyone Watch? It May Not Matter, N.Y. Times: The Athletic (Jan. 23, 2023), https://theathletic.com/4110944/2023/01/23/liv-golf-league-cw-tv-deal/ [https://perma.cc/57WG-6YNU]. LIV did not receive a live television deal for its first season and had to stream the tournaments instead. Id.

  208. Merger Guidelines § 2.6A (U.S. Dep’t of Just. & Fed. Trade Comm’n 2023)

  209. United States v. Anthem, Inc., 855 F.3d 345, 366 (D.C. Cir. 2017).

  210. Kumar Mehta, Innovation – Will LIV Golf Become the Tesla of the Segway of the Sport, Forbes (July 28, 2022, 12:52 PM), https://www.forbes.com/sites/kmehta/2022/07/28/innovation--will-liv-golf-become-the-tesla-or-the-segway-of-the-sport/ [https://perma.cc/LS53-DXZR?type=standard].

  211. Alex Miceli, LIV Golf Sees Increased Viewership for Season Opener, but Larger Issues Remain, Sports Illustrated (Feb. 6, 2024), https://www.si.com/golf/2024/02/07/liv-golf-increased-viewership-season-opener-larger-issues-remain [https://perma.cc/2644-CC5D].

  212. Adam Fonseca, Is Now the Time for the PGA Tour to Unionize?, Golf Unfiltered, https://www.golfunfiltered.com/blog/2023/6/15/is-now-the-time-for-the-pga-tour-to-unionize [https://perma.cc/UR2T-S6UE] (last visited Sept. 11, 2024).

  213. Currently, PGA Tour players must sign away their media rights to the Tour before every season. James Colgan, What Are the PGA Tour’s Media Rights? And How Do They Work?, Golf (Feb. 22, 2022), https://golf.com/news/pga-tour-media-rights-hot-mic/ [https://perma.cc/5DQC-EK4B]. This is different from LIV, where players control their media rights and are able to promote themselves on platforms such as YouTube. Bryson DeChambeau is the prime example of a golfer doing so, boasting a YouTube channel with over 1.4 million subscribers. Bryson DeChambeau (@brysondechambeau), YouTube, https://www.youtube.com/channel/UCCxF55adGXOscJ3L8qdKnrQ [https://perma.cc/BB5R-53HM] (last visited Sept. 11, 2024); Bryson DeChambeau, LIV Golf, https://www.livgolf.com/player/bryson-dechambeau [https://perma.cc/69QZ-WFEL] (last visited Oct. 25, 2024). He would not be able to do such a thing as a member of the PGA Tour.

  214. About Our Partnership, Korn Ferry, https://www.kornferry.com/about-us/tour [https://perma.cc/J9Y7-S3TJ] (last visited Sept. 14, 2024); Teams in Minor League Baseball, MiLB, https://www.milb.com/about/teams/by-affiliate [https://perma.cc/NBN6-T2XB] (last visited Oct. 25, 2024).

  215. James Colgan, LIV Execs Say PGA Tour Merger ‘Turbocharged’ Business, Expansion Plans, Golf (Aug. 25, 2023), https://golf.com/news/liv-pga-tour-merger-turbocharged-business-expansion-plans/ [https://perma.cc/LS87-RQC3].

  216. Id.

  217. Id.

  218. See supra text accompanying note 33.

  219. Standard Oil Co. v. United States, 221 U.S. 1, 33 (1911).

  220. Id.

  221. Fonseca, supra note 212.