Golf is a lawyer’s pastime of choice, so it’s not surprising to see an antitrust claim filed against the PGA Tour (“PGA”) hitting the rounds. Plaintiffs—including LIV Golf, Bryson DeChambeau, Matt Jones, and others (“Plaintiffs”)—allege that PGA violated Sections 1 and 2 of the Sherman Antitrust Act.[1] Plaintiffs contend that PGA’s rules governing the membership of its players are prohibitively anti-competitive and place unreasonable restraints on Plaintiffs’ ability to sell their services as professional golfers.[2] Plaintiffs also claim that PGA organized a boycott against LIV Golf and LIV Golf’s players that is per se unlawful.[3] However, recent developments suggest that this case is going to be far from a hole-in-one for Plaintiffs.[4]
Sherman Antitrust Act
Section 1 of the Sherman Antitrust Act prohibits conduct that imposes unreasonable restraints on trade or commerce.[5] A ‘group boycott’ typically involves a group of would-be competitors forming a trust with the intent of excluding prospective competitors from entering the market.[6] “The group may accomplish its exclusionary purpose by inducing suppliers not to sell to potential competitors, by inducing customers not to buy from them, or, in some cases, by refusing to deal with would-be competitors themselves.”[7]
Despite the categorical ban on any contract restraining trade, the law’s application has largely steered away from the ink on paper. For instance, shortly after the Sherman Act was passed, the Court in United States v. Trans-Missouri Freight Association acknowledged that because many—if not all—commercial contracts restrain trade, the Sherman Act should only apply to unreasonably restrictive contracts.[8] However, because “businesses are free to choose the parties with whom they will deal, as well as the prices, terms, and conditions of that dealing,” the determination of reasonableness is still up for debate among courts.[9]
Furthermore, courts generally view the concerted effort between horizontal competitors in implementing a unitary policy as inherently anti-competitive, and therefore, a per se violation of Section 1. However, if decisions among competitors are made unilaterally, the conduct is generally recognized as lawful.[10]
Section 2 of the Sherman Antitrust Act makes it unlawful to monopolize or attempt to monopolize trade in interstate commerce.[11] A Section 2 violation requires the plaintiff to show that the defendant possessed “monopoly power in the relevant market.”[12] Monopoly power can be loosely defined as a firm’s power to either control pricing or exclude competition in a particular market.[13] Importantly, the plaintiff must be able to distinguish the defendant’s willful acquisition or maintenance of that power from market power that is the natural result of the defendant’s legitimate business success.”[14]
However, the case law has shown that monopolies can sometimes be permissible under the Sherman Act. As the late Justice Scalia explained in Verizon Commc’n, Inc. v. Law Offices of Curtis V. Trinko, the emergence of monopoly power and the charging of monopoly prices through organic competition are “an important element of the free-market system.”[15] To force monopolies “to share the source of their advantage” would disincentivize successful firms from reinvesting in the source of their market dominance.[16]
Factual Background
Prior to LIV Golf’s entry, PGA offered its players the most lucrative tournament purses.[17] As such, other tours are generally perceived as feeders for PGA’s tour.[18] PGA’s influence in the elite professional golf circuit is evidenced by the fact that its commissioner sits on the board of a number of international golf organizations.[19]
LIV Golf—a new golf start-up—has proven itself a worthy challenger to PGA’s dominance.[20] LIV Golf has attracted elite players with its unique team-based, no elimination tournament style, in which all players are guaranteed a share of the purse.[21] LIV Golf’s purse is particularly attractive to players because its average purse size exceeds anything PGA has offered by at least $7.5 million.[22] Despite LIV Golf’s grand entrance into the world of professional golf, its funding by Saudi Arabia’s Private Investment Fund—the royal family’s sovereign wealth fund—has been met with sharp criticism within the golf ecosystem, which has largely distanced itself from Saudi Arabia over concerns of human rights violations.[23]
PGA’s rules governing the membership of its players lie at the heart of Plaintiff’s Section 2 complaint.[24] Specifically, PGA’s “Media Rights Regulation” prohibits PGA members from participating in “any… golf program without the prior written approval of the Commissioner,” other than PGA co-sponsored events.[25] In addition, PGA’s “Conflicting Events Regulation” “prohibits any [PGA] member from playing in any other golf tournament in North America during any week when the [PGA] sponsors or co-sponsors an event” regardless of whether the player is a participant in the PGA event.[26]
PGA’s alleged unlawful conduct began shortly after Plaintiffs announced their intentions to compete in LIV Golf’s tour.[27] Because Plaintiffs would violate PGA’s rules if they were to participate without the approval of PGA’s commissioner, PGA threatened to permanently suspend such players from future PGA tournaments.[28] After the players participated in LIV Golf’s inaugural tournament in London, PGA promptly suspended such, individual players. PGA’s suspension precluded the players’ participation in the upcoming FedEx Cup.[29] Because players must compete in the Fedex Cup in order to compete in the Masters, PGA Championship, US Open, and The Open, PGA’s suspension has had a significant impact on the players’ professional golf careers.[30]
Additionally, the group boycott, which was allegedly orchestrated by PGA, forms the basis of Plaintiffs’ Section 1 claim.[31] PGA allegedly coordinated with the European Tour to pressure other minor tours and major tournament organizers to sever ties with LIV Golf and LIV Golf’s players.[32] PGA insists that its decision to sever ties with LIV Golf was the result of its independent decision to not support a Saudi-funded tour.[33] However, Plaintiffs argue that PGA’s concerns about LIV Golf’s relationship with Saudi Arabia are only a pretext.[34] To support its theory, Plaintiffs cite extensive business dealings between PGA’s partners and sponsors and Saudi Arabian affiliates.
Plaintiffs contend that this agreement constituted PGA’s attempt to prevent LIV’s entry into the market.[35] For example, the complaint states that PGA, European Tour, and R&A cut ties with Asia Tour after Asia Tour chose to continue its relationship with LIV Golf.[36] Plaintiffs claim that LIV Golf—prior to it being blacklisted by PGA—had been approached by various event vendors and sponsors, who had expressed interest in working with LIV Golf.[37] After the PGA announcement, these vendors and sponsors allegedly severed any arrangements they had with LIV Golf.[38]
Antitrust Claims
Plaintiffs allege that PGA holds a monopoly over the elite professional golf tournament circuit, and that its status makes it a monopsony for elite professional golf services.[39] Plaintiffs add that PGA unlawfully leveraged its dominance over the golf ecosystem to coordinate an industry-wide boycott of LIV Golf and LIV Golf’s newly signed players.[40]
Sherman §2 Legal Claims – Anticompetitive Conduct
The complaint describes PGA as both a monopoly and a monopsony.[41] As a preliminary matter, a monopoly is the sole producer of a good or service in the market, whereas a monopsony is the sole buyer of a good or service in the market.[42] Because the two terms are essentially different sides of the same coin, courts apply the same legal tests and standards to both.[43]
One example of anticompetitive practice is when a monopoly or monopsony artificially raises wages to choke out competition, and then crashes wages when their competition is successfully abated.[44] Plaintiffs claim that PGA used their market power to manipulate the market in such manner. In support of this claim, Plaintiffs explain that PGA historically paid its members a significantly lower percentage of PGA’s revenues as compared to elite professional leagues of other major sports. As a result of LIV Golf’s threat to PGA’s dominance, PGA allegedly introduced new player payment schemes, including increased tournament purse sizes and a new “bonus pool.”[45] According to Plaintiffs, PGA is in the process of raising wages to keep LIV Golf out of the market.[46]
In its defense, PGA points to LIV Golf’s market entrance, as well as LIV Golf’s ability to match or exceed what PGA offers its players as proof that PGA does not have the actual ability to exclude competition or control prices.[47] PGA argues that its new player payment schemes were merely a response to changing market conditions, and that PGA was within its rights to do what it had to so that it could compete with other tours.[48] As the late Justice Scalia explained, courts are “ill suited” to “act as central planners, identifying the proper price, quantity, and other terms of dealing” that are frequently at issue in antitrust disputes.[49] The Sherman Antitrust Act does not limit companies’ right to independently choose whom they conduct business with.[50]
Though the Supreme Court has considered exclusivity contracts within sports leagues as a factor in a Section 2 analysis, the existence of exclusivity contracts is not dispositive.[51] PGA’s rules, coupled with its threats of permanent suspension, may effectuate an exclusivity agreement between PGA and its member-players. Logically, member-players cannot participate in competing tours if they are signed with PGA. The effects of PGA’s rules were compounded when member-players were threatened with suspension. Arguably, PGA’s threats make member-players even less inclined to explore alternative golf tournament organizers.[52]
Though PGA’s rule permit participation by its member-players in the European Tour, up to three times a year, PGA and European Tour are not direct competitors.[53] Arguably, member-players are denied the opportunity to explore competitive landscapes at the highest level.
Plaintiffs contend that PGA’s lifetime suspension represented “unreasonable and anticompetitive restrictions on players’ ability to sell their independent contractor services,” because it “denies players the freedom to play in competing tours.”[54] Plaintiffs also allege that PGA’s threat “to harm other agencies, businesses or individuals who would otherwise work” with the plaintiffs constitute PGA’s overt attempt to penalize anyone supporting PGA’s competition.[55]
A monopolist cannot use exclusivity agreements to block the entry of new firms or impede the growth of smaller existing competitors attempting to expand in the market.[56] In the context of the elite professional golf arena, this would mean that contracts preventing a competing tour from signing crowd-drawing players would impede the new tour’s ability to engage in meaningful competition, no matter the purse size offered. However, LIV Golf’s continued operation with a full roster of elite players at its upcoming tournaments suggests that PGA’s contracts are probably not in violation of the Sherman Act.[57]
Plaintiffs also contend that PGA exploited its dominance in the “golf ecosystem” to pressure other tours and golf organizations to ban LIV Golf’s players from competing in their tournaments, thereby effecting a “group boycott” of LIV Golf.[58] Under a Sherman Section 2 analysis, it is unlawful for the dominating firm to force its suppliers to boycott a smaller or emerging competitor as a requisite to continuing its relationship with the dominant firm.[59] However, FTC guidance permits businesses to unilaterally follow industry trends in cutting ties with a select party “as long as it is not part of an agreement with competitors to stop doing business with a targeted supplier.”[60] The independent decision among tours to not support a Saudi-funded tour would be permissible under FTC guidance.[61]That said, a monopolist’s “attempt to regain its monopoly… by forcing [players, vendors, and affiliate tours] to boycott a competit[or]” violates Section 2 of the Sherman Act.[62]
PGA denies that its rules governing its member-players are anti-competitive.[63] Specifically, PGA argues that its exclusivity contracts with players is standard industry practice, are generally lawful, and are beneficial to the golf ecosystem.[64] Exclusivity contracts, in which the dominant firm is a party to, become unlawful only if the dominant firm intends to exclude new firms from the market with the arrangement.[65] Because the law does not require firms to operate in a manner that would lead to its own detriment, PGA argues that it is not legally obligated to guarantee its competitors’ players a spot in their tournament.[66]
PGA claims that its rules encourage PGA members to fully invest themselves in the tour.[67] And while it is true courts have recognized that exclusivity contracts can encourage best efforts, competition may nonetheless be threatened if the power within a particular market is already heavily concentrated, if exclusivity contracts are long-term, or if exclusivity contracts foreclose the availability of supply, such that entry into the market is unreasonably restricted.[68]
Lastly, PGA claims its exclusivity agreements target “free rider” problems that could arise if LIV Golf’s players promote LIV Golf while competing in PGA tournaments.[69] Eliminating free riders is a “procompetitive advantage of alleged restraints on competition.”[70]
In response to PGA’s “free rider” explanation, Plaintiffs argue that there is no legitimate procompetitive advantage in prohibiting players from competing in alternate tours during weeks they are not playing with PGA.[71] Plaintiffs further argue that PGA’s threats of suspension force the industry’s best players to remain with PGA, thereby immunizing PGA from competition.[72]
Plaintiffs’ claim may be undermined by the fact that the law does not require competitive bidding systems for goods, services, or—in this case—players.[73] That said, the use of monopoly or monopsony power to “unreasonably forbid[] any one to practice his calling” would constitute prohibited conduct.[74] As such, Plaintiffs’ claim regarding PGA’s suspension of individual players may constitute an unreasonable restriction on players’ ability to play golf at the most elite level.
Sherman §1 Legal Claims – Group Boycott
Courts have “long held that certain concerted refusals to deal or group boycotts are so likely to restrict competition without any offsetting efficiency gains that they should be condemned as per se violations of § 1 of the Sherman Act.”[75] Therefore, agreements that seek to directly deny, persuade, or coerce suppliers and customers, which are to the detriment of market competition, are per se unlawful.[76]
However, the per se standard is limited to the horizontal agreements that are made between comparable industry members who are in direct competition with one another.[77] Courts are extremely hesitant to deploy the per se standard, and almost always opt to analyze business conduct under the rule of reason, recognizing that courts are far from the best place to rule on the competitiveness of business conduct without amassing years of experience on the specific arrangements before the court.[78]
Plaintiffs contend that PGA and the European Tour conspired to keep LIV Golf out when they banned LIV players from their respective tournaments.[79] Plaintiffs allege that the group boycott, organized by PGA for the purpose of harming LIV Golf and LIV Golf’s players, constituted an unreasonable restraint on trade.[80]
PGA rejects Plaintiff’s Section 1 claims.[81] In its defense, PGA countered that it had merely sought to enforce its longstanding player rules.[82] In addition, PGA states that it was the European Tour’s independent decision to follow PGA’s disassociation from LIV Golf’s players, and that such decision derived from the European Tour’s own moral concerns over LIV Golf’s financial ties to Saudi Arabia. As such, PGA argues that any resulting parallel effort between PGA and the European Tour was legally permissible.[83] Lastly, PGA argues that the per se standard does not apply to their situation because the PGA and European Tour are not direct competitors.[84] PGA provides that each tour hosts their tournaments on different continents, and the tournaments hosted by PGA and the European Tour are on different competitive levels. The per se test standard advanced by Plaintiffs is only applicable when the parties are direct competitors, i.e., horizontal competitors.[85] PGA also denies that it “possesses a dominant market position.”[86] Because LIV was able to attract elite players, who opted to join LIV at the expense of their PGA Tour careers, LIV was able to successfully break into the market.[87] Indeed, the 9th Circuit has declared that the ability of a major competitor to enter the market is “conclusive” evidence that a firm does not have a dominant market position.[88] Not to mention, LIV Golf is currently planning future tournaments, with a large player base and lucrative prize purse, which suggests LIV was not only able to enter the market, but also that LIV was able to survive. Arguably, this is evidence of a competitive market. If it is determined that PGA does not possess dominant market power, Plaintiffs’ Section 1 claim will fail.[89]
Recent Case Developments
Most recently, Plaintiffs’ request for temporary restraining order, which would have allowed Plaintiffs to compete in PGA’s FedEx Cup, was denied.[90] Judge Freeman, the presiding California district judge, explained that because Plaintiffs were still able to compete at LIV Golf’s events, they would not suffer “irreparable harm” in the absence of the temporary restraining order.[91] Judge Freeman reasoned that because the Plaintiffs would be able to participate in LIV Golf events, the Plaintiffs would actually earn more than they would if they were to play at PGA’s playoffs.[92]
Judge Freeman also shared her impressions on the Plaintiffs’ antitrust claims.[93] She emphasized that a group boycott is only a per se Section 1 violation if the agreement is made between horizontal competitors, “which TRO Plaintiffs’ own expert opines PGA Tour, and the European Tour are not.”[94] While the boycott may still violate Section 1 under the rule of reason, Plaintiffs did not advance this theory in their motion.[95] Judge Freeman suggested that Plaintiffs’ claims may have some merit, however, further factual findings are necessary.[96]
[1] See generally Complaint, Mickelson et al v. PGA Tour, Inc., (2022) (No. 3:22-cv-04486).
[2] Id.
[3] Id.
[4] See generally Order Den. Pls.’ Talor Gooch et al. TRO, Mickelson et al v. PGA Tour, Inc., (2022) (No. 3:22-cv-04486) [hereinafter Order Den. Mot.].
[5] 15 U.S.C.A. §§ 1-2 (West 2021).
[6] See Smith v. Pro-Football, Inc., 593 F.2d 1173, 1178 (D.C. Cir. 1978).
[7] Id. This standard typically does not apply if the “competitors” are actually part of a “joint venture,” such as NFL teams in the NFL. Id. at 1179.
[8] See United States v. Trans-Missouri Freight Ass’n, 166 U.S. 290, 345 (1897).
[9] See Pac. Bell Tel. Co. v. linkLine Commc’n, Inc., 555 U.S. 438, 448 (2009).
[10] See id. at 556.
[11] Id.
[12] See United States v. Grinnell Corp., 384 U.S. 563, 570–71 (1966).
[13] Id.
[14] Id. (holding that market power gained through competition, or as a “consequence of a superior product, business acumen, or historic accident” does not trigger antitrust scrutiny).
[15] See Verizon Commc’n, Inc. v. Law Offs. of Curtis V. Trinko, 540 U.S. 398, 410 (2004). Deregulation consistently leads to price reductions and “substantial improvements in quality and service” while robust competition policy “can also help to create better conditions for democratic institutions” because “the democratization of political systems and the decentralization of economic decision making are mutually reinforcing processes.” Paul Crampton, Head of Outreach Unit in Competition Division, OECD, Striking the Right Balance Between Competition and Regulation: The Key is Learning from Our Mistakes, 2-3 (Oct. 16, 2002), https://www.oecd.org/regreform/2503205.pdf.
[16] 540 U.S. 398, 407-08. Government regulation leads to a significant decrease in the entry of new firms, undermining policies that encourage competition. See James Bailey & Diana Thomas, Regulating Away Competition: The Effect of Regulation on Entrepreneurship and Employment 3 (Sept. 2015) (unpublished working paper) (on file with George Mason University at Mercatus Center), https://www.mercatus.org/publications/regulation/regulating-away-competition-effect-regulation-entrepreneurship-and.
[17] See Complaint, supra note 1, at 15 (“The average purse of a PGA Tour event is roughly two-and-a-half times the average purse of a European Tour event, roughly nine times the average purse of an Asian Tour event, and 13 times the average purse of a Korn Ferry Tour event.”).
[18] See Iain Carter, DP World Tour not a feeder for PGA Tour, says Keith Pelley at Wentworth, BBC (Sept. 7, 2022), https://www.bbc.com/sport/golf/62823203 (arguing that the European Tour (now called the DP Tour) is not a feeder tour for PGA, despite claims by critics).
[19] See Complaint, supra note 1 at 20. Organizations include the board of the European Tour, the OWGR, and International Golf Federation. See id.
[20] See Edward Suelan, LIV Golf rules, explained: The biggest differences vs. PGA Tour include shorter rounds, teams & shotgun starts, Sporting News (Sept. 2, 2022), https://www.sportingnews.com/us/golf/news/liv-golf-rules-pga-tour/iywjdfqirerdej1hzcg0vd6c.
[21] Id.
[22] David Suggs, LIV Golf Bedminster purse, payout breakdown: How much prize money will the winner make?, Sporting News (Aug. 29, 2022), https://www.sportingnews.com/us/golf/news/liv-golf-bedminster-purse-payout-breakdown/nidifvqk3mfd6yva9ncp8t2t#:~:text=All%20eight%20LIV%20Golf%20events,U.S.%20Open%20(%2417.5%20million).
[23] Dominic Chu, Saudi-backed LIV Golf envisions franchises in its future, executive says, CNBC (July 29, 2022), https://www.cnbc.com/2022/07/29/liv-golf-backed-by-saudis-and-trump-sees-franchises-in-its-future-exec-says.html.
[24] See Complaint, supra note 1, at 3-4.
[25] See id. at 23.
[26] See id. at 25.
[27] See id. at 5.
[28] See id.
[29] See Notice of Mot. & Mot. for TRO at 2, Mickelson et al v. PGA Tour, Inc., (2022) (No. 3:22-cv-04486) [hereinafter Notice of Mot.].
[30] Id.
[31] See Complaint, supra note 1, at 95.
[32] See id. at 6-7. Tournament organizers and Tours include PGA of America, Augusta National, and Royal & Ancient. Id.
[33] Def. PGA Tour, Inc.’s Opp’n to TRO Pls.’ Mot. for a TRO at 5-7, Mickelson et al v. PGA Tour, Inc., (2022) (No. 3:22-cv-04486) [hereinafter Opp’n to TRO].
[34] See Complaint, supra note 1, at 41.
[35] Id.
[36] Id. at 42.
[37] Id. at 81-84.
[38] Id.
[39] See generally Complaint, supra note 1.
[40] Id.
[41] See generally Notice of Mot., supra note 29.
[42] See Weyerhaeuser Co. v. Ross–Simmons Hardwood Lumber Co., 549 U.S. 312, 320–22 (2007).
[43] Id.
[44] Id. at 321.
[45] Complaint, supra note 1, at 86.
[46] Id.
[47] Opp’n to TRO, supra note 33, at 18-19; see also United States v. Syufy Enters., 903 F.2d 659, 664 (9th Cir. 1990) (finding that a dominant firm must have the power to “exclude competition or control prices”); see also Tops Mkts., Inc. v. Quality Mkts., Inc., 142 F.3d 90, 99 (2d Cir. 1998) (holding that a firm’s “successful entry itself refutes any inference of the existence of monopoly power that might be drawn from [the dominant firm’s]market share”).
[48] See Opp’n to TRO, supra note 33, at 18-19.
[49] Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko LLP, 540 U.S. 398, 408 (2004).
[50] Id.
[51] See Int’l Boxing Club of N.Y. v. United States., 358 U.S. 242, 254 (1959).
[52] Complaint, supra note 1, at 2; see also Exclusive Supply or Purchase Agreements, Fed. Trade Comm’n, https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/single-firm-conduct/exclusive-supply-or-purchase-agreements (last visited Oct. 7, 2022) (“[W]hen the firm using exclusive contracts is a monopolist, the focus shifts to whether those contracts impede efforts of new firms to break into the market or of smaller existing firms to expand their presence.”).
[53] See Opp’n to TRO, supra note 33, at 22.
[54] See Complaint, supra note 1, at 91.
[55] Id.
[56] See Exclusive Supply or Purchase Agreements, Fed. Trade Comm’n, https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/single-firm-conduct/exclusive-supply-or-purchase-agreements (last visited Oct. 7, 2022).
[57] See Opp’n to TRO, supra note 33, at 18.
[58] See Notice of Mot., supra note 29, at 5-7, 17.
[59] See PLS.com LLC v. Nat’l Ass’n of Realtors, 32 F.4th 824, 836 (9th Cir. 2022).
[60] See Group Boycotts, Fed. Trade Comm’n, https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/dealings-competitors/group-boycotts (last visited Oct. 7, 2022).
[61] See id.; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (finding that lawful parallel conduct among competitors does not hint at an unlawful agreement under Sherman Section 1).
[62] Lorain Journal Co. v. United States, 342 U.S. 143, 149–50, 186 (1951) (holding that a radio station violated Section 2 when it forced its network of advertisers to boycott a competing station).
[63] See generally Opp’n to TRO, supra note 33.
[64] Exclusive Dealing or Requirements Contracts, Fed. Trade Comm’n, https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/dealings-supply-chain/exclusive-dealing-or-requirements-contracts (last visited Oct. 7, 2022); see also Omega Env’t, Inc. v. Gilbarco, Inc., 127 F.3d 1157, 1162 (9th Cir. 1997) (finding “well-recognized economic benefits [in]exclusive dealing arrangements, including the enhancement of interbrand competition”).
[65] See Exclusive Dealing or Requirements Contracts, Fed. Trade Comm’n, https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/dealings-supply-chain/exclusive-dealing-or-requirements-contracts (last visited Oct. 7, 2022).
[66] See Opp’n to TRO, supra note 33, at 20 (citing Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 410–11 (2004)).
[67] See id. at 21.
[68] See E. Food Servs., Inc. v. Pontifical Cath. Univ. Servs. Ass’n, Inc., 357 F.3d 1, 8 (1st Cir. 2004).
[69] See Opp’n to TRO, supra note 33, at 21.
[70] See N. Am. Soccer League, LLC v. U.S. Soccer Fed’n, Inc., 883 F.3d 32, 43 (2d Cir. 2018).
[71] See Notice of Mot., supra note 29, at 17.
[72] Id.
[73] See Nat’l Soc’y of Pro. Eng’rs v. United States, 435 U.S. 679, 694-95 (1978).
[74] See Gardella v. Chandler, 172 F.2d 402, 408 (2d Cir. 1949) (J. Hand concurring) (arguing that a non-compete clause in a professional baseball player’s contract could unreasonably restrict the player’s ability to practice his calling).
[75] See Nw. Wholesale Stationers, Inc. v. Pac. Stationery & Printing Co., 472 U.S. 284, 290 (1985).
[76] Id. at 294.
[77] See Nova Designs, Inc. v. Scuba Retailers Ass’n., 202 F.3d 1088, 1092 (9th Cir. 2000).
[78] NCAA v. Alston, 141 S. Ct. 2141, 2156 (2021) (finding that Sherman Section 1 boycott claims under the per se standard are “limited to cases involving horizontal agreements among direct competitors”).
[79] See Complaint, supra note 1, at 6.
[80] See id. at 95.
[81] See Opp’n to TRO, supra note 33, at 22.
[82] See Opp’n to TRO, supra note 33, at 22.
[83] See Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752, 768 (1984) (finding that Section 1 “does not reach conduct that is wholly unilateral”).
[84] Id.
[85] NYNEX Corp. v. Discon, Inc., 525 U.S. 128, 135 (1998).
[86] See Opp’n to TRO, supra note 33, at 22.
[87] Id.
[88] United States v. Syufy Enters., 903 F.2d 659, 665 (9th Cir. 1990).
[89] See Opp’n to TRO, supra note 33, at 22 (citing Adaptive Power Sols., LLC v. Hughes Missile Sys. Co., 141 F.3d 947, 950 (9th Cir. 1998)).
[90] See LIV Tour Golfers Denied Temporary Restraining Order, BFV L. (Aug. 23, 2022), https://www.bfvlaw.com/liv-tour-golfers-denied-temporary-restraining-order/ (last visited Oct. 7, 2022).
[91] See Order Den. Mot., supra note 4, at 9.
[92] Id.
[93] Id.
[94] Id. at 13.
[95] Id. at 13-24.
[96] Id.
