Ryan Macready: Competition law, sportswashing and the LIV Golf Series
For as long as golf enthusiasts can remember, the PGA Tour has been the home of professional golf, synonymous with the top golfers and tournaments in the sport. This year saw the PGA Tour faced with a new competitor, in the form of Saudi Arabia and the LIV Golf Series. Faced up by Greg Norman, LIV Golf has sought to lure some of the world’s top players (Lee Westwood, Dustin Johnson, and Sergio Garcia to name a few) with huge financial packages funded by Saudi Arabia’s Public Investment Fund.
Detractors of the LIV Golf Series have claimed that the tournament is an example of “sportswashing” by Saudi Arabia – using sport as a tool to repair the nation’s bad reputation through sporting events and using athletes as mouthpieces in this effort. Many of the golfers involved have been criticised for taking part in the tournament given the human rights record of Saudi Arabia and have been taking some tough questions from the press. There have further been threats of sanctions by the PGA Tour for those golfers who have agreed to participate in the tournament. Today, the PGA Tour has suspended more than a dozen of the golfers participating.
This comes in the context of various challenges between governing bodies. The most notable of these was perhaps the European Super League proposal in football, where some of Italy, Spain, and England’s top teams attempted to create a new league format whereby the top European teams would face off against each other on a more regular basis. This turned out to be incredibly unpopular with fans, leagues, and FIFA with threats made to ban players competing in the European Super League from European Championships and World Cups. This did not ultimately come to fruition as the proposals were abandoned, but there was certainly significant damage to the reputation of the respective clubs and the stakeholder relationships.
The LIV Golf Series and European Super League are symptomatic of competition between governing bodies in sports, with funders keen to create rival tournaments and formats and athletes keen to make as much money as possible in their (often short) careers.
The sanctions, whether threatened or imposed draw one’s memory to the recent (2020) case brought against the International Skating Union (ISU) before the European Commission and, on appeal, the General Court of the European Union. The case centred around two Dutch speed skaters, Mark Tuitert and Niels Kerstholt, who competed in financially lucrative skating events that were not approved by the ISU. The ISU sought to sanction the skaters for taking part in these events, banning them from competing in future ISU tournaments. Both skaters successfully challenged their bans.
The European Commission ruled in 2017 that banning sportsmen and women for competing in an “unsanctioned” event was a violation of EU competition law. The ISU appealed, but the decision as it related to the sanctions was upheld in December 2020. Accordingly, the sanctions were deemed to be anti-competitive and void, meaning Tuitert and Kerstholt were free to skate in future ISU competitions.
A similar dispute arose in Germany in 2021 between rival governing bodies in the sport of wrestling. To summarise, the established German wrestling body (the Deuthscher Ringer-Bund) and the international body (United World Wrestling) sought to impose sanctions on certain wrestlers participating in tournaments organised and funded by a new organisation; Deutscher Ringer-Liga. Wrestlers were banned from German and international wrestling tournaments and the sanctions were challenged in the regional court and, on appeal, the Nuremberg Court of Appeals. The respective courts agreed that the sanctions were disproportionate, anticompetitive, and (as a result) unenforceable.
There are obvious parallels between the ISU case, the Deutscher Ringer-Liga case, and the LIV Golf Series. The decisions issued in respect of the decided cases may suggest that the sanctions imposed by the PGA could be open to challenge. Of course, this is not 100 per cent clear and any challenge to the sanctions would be assessed in its own right. However, I would be surprised if the organisers of the LIV Golf Series and their legal teams didn’t follow the ISU and Deutscher Ringer-Liga cases with an eager eye. Given the commercial importance of the top golfers in creating commercial and sporting success for the new tournament, the threat of being banned from playing in PGA tournaments might have made (and might continue to make) top players think twice about signing up. It is (at the very least) a grey area.
As we can see from the various sanctions and challenges across various sports, competition, the battling between sporting bodies is not unique to any one sport. Athletes will continue to pursue the most lucrative of these, and established governing bodies will need to be aware of antitrust and competition law when imposing or threatening any sanctions on competing athletes. If the LIV Golf Series is anything to go by, one may understandably be concerned about the motives for new governing bodies and their funders. Time will tell how this affect the landscape of golf and, for that matter, the world of sport in general.
Ryan Macready is a senior solicitor at Macdonald Henderson