Fire Drill 037: Opening Salvo

bit of housekeeping real quick. We want to think our sponsors Part Points the best golf scoring at there is and Seed Golf, awesome little ball company out of Europe. They allow us to do fun things like this. So tonight we're joined by Matt Janella and a very special guest in Peter Ginsberg is one of the pre eminent

legal minds in the sports field. He represented Vjcing and his very successful lawsuit against the PGA Tour, and he is represented a variety of tour players in different actions against the tour, most of which no one ever heard of because of Peter's skill keeping things quiet and getting things done behind the scenes. So Peter, thank you for being here, and let's let's just get right to it. I was courted today, big verdict. What do you make of the tour's first first victory and what's no doubt

going to be a long legal process. You know, I'm not terribly surprised. We've been several very confusing, very confusing missteps. Then the players have really made this all about money and a new damage is usually on sufficient sustain a request for a joint for relief. They didn't make it much about prior to the game and the importance of the system, the points system. They also waited far too long to bring their request for in junctive relief and

really created the emergency. Like the judge said, So it wasn't terrible surprising. There's a lot of talk about, you know, it's especially for a temporary restraining or there's a high threshold to prove the damages, and that was that was tossed around by non experts like myself. But can you explain to the listeners what live would have had to have done or the plaintiffs, I should say three individuals would have had to done to win this. Uh this

tro so let me give you an example. Several years ago, I was representing a couple of people from the Minnesota, like in in case you became known as a star capsutation and the commissioner tried to suspend them. I'm not going to go into all of the details, but for something that they should not have been the subject of a substreension, and we went into court and Minnesota to ask for a junkerbe We didn't argue about the money loss,

and we didn't argue about policies at the NFL. Instead, our argument was based on reputation and the pride of playing the game, and how much it would tarnish their reputations. Being heard in that way is an emergency. It can't be remedied by winning later on, as opposed to simply asking for money damages when you can always be compensated retroactively. So it has to be something more personal and frankly

more important than simply I'm asking for money. I mean, I thought the you know, the the plaintiffs lawyer, I mean, he kept make trying to make the case that the FedEx Cup was now the avenue to get into the major championships for these players, if they could they get in the top thirty, that it's just a great platform for building their brand. And he tried to make that

argument a little bit. But um, the judge didn't seem too impress you know, I mean, I guess from from your perspective, how how tall a mountain was was this for for the plaintiffs to actually climb? I mean it seemed like they you know, if you just look at it, the fact that they left the tour and now they're trying to get get back onto the tour. Uh, it was it was going to be an uphill battle. But how how much in your in your minds? But how how long were the odds against him before before this

even began. I think the way this is played out, it was like a money grow and and that's who That's where the judge decided. Yeah, if they had focused from the beginning, you know, about the importance of the dead actual coup, of the importance of you should you're in the meeting for the game, I think they would have been far better off. But the people who are these smokes, people with um are gonna aren't the most atractive candidates should be made from that that claim, Matt,

what were you gonna say? No? I mean I felt like we should probably just go back for a second. For me, from the outside not being in the courtroom. Alan, you were there, Peter, You've been in there, you know, a good jillion times. I'm sure I've listened to your interview on the Stripe Show podcast with Travis Fultman. I thought it was very informative. But before we get a little, you know, even in more depth, I just I think a little bit of color in terms of what the

courtroom looked like, I think would be fascinating. Yeah, it was. It's just a gift from the content gods that somehow Northern California was as the venue and I can just drive up. There's in San Jose's about a hour and

a half away, and so I blew up there. I kind of got there a little bit late and I was rushing, but walking into the courtroom, it's such a regal, formal setting, and in this chaotic political moment where it seems like every institution is under attack and the rule of law is always seems to be in question, it was neat for me, as someone who is rarely in a courtroom, just to see it play out and the formality of everyone rises, for the judge and all the

lawyers and their beautiful Italian suits, you know, that are glistening in the lighting. Clearly those suits cost more than some of the people's cars in the parking lot. And just the the decorum and the respect that the lawyers showed for the judge and the whole process, it was. It was kind of neat to be there, honestly, and I enjoyed that aspect of it. And you know, I knew nothing about Judge Freeman coming in. I saw in gin she's a thirty three handicap. She put does play

the game. But I thought she was really good. I mean she had she had these these lawyers on their toes and um, you know a few times I burst out laughing. Some things were said. I kind of look around like, oh sorry. It reminded me of being like, you know, around a green at Augusta National and someone whispers something funny to you when you're trying to hold

it in, Like are you allowed to laugh? I don't even know what the rules are, but um, there was there was some levity, and you know, I really thought both sides did a good job in their arguments, you know, them the plaintiffs, they made some headway. They did explain the timeline a little bit. Peter White all these things had to happen by the scenes before they could bring their suit, and the judge found out persuasive because she

was dubious to begin with. I thought, I thought the tour lawyers really made made some headway in explaining how how much these guys knew what they're getting themselves into and how much money they had taken. And that was kind of a little mini courtroom drama because the judge had access to the contracts, so she knows the actual numbers,

and the lawyers know the numbers. They didn't want to say it out loud, and a couple of times the different lawyers that came up right to the edge and the almost said it, and you're like on the precipice of something juicy revelation. They pulled themselves back and I could see people like me and the other there's twelve reports. They're kind of leaning forward, like ooh, and you know, the plaintiff layer lets slip at one point that the live earnings are counting against the advance that some of

these players got. He didn't go in any more detail, but that was a little mini bomb show that was interesting that wasn't and at the same time, you know that that can be explained in different ways. Every contracts different and some things are bare frontloaded and some have it on the back end. So two things can be true. Were at once, where you win the tournament, they send you a check, But what that means on the back

end your deal, who knows. But what when that happened, you know, I was looking around and some other guys were looking around. We made that contact, like, oh that's juicy. You know, it's just like funny little moments like that.

It was um And then of course the judge takes this fifteen minute break and leave, and so now women's in the hallway buzzing about what's going to happen, trying to bird dog the lawyers, and and then you go back in the courtroom and just waiting for it to come in, and like it really felt like the emotion of it all was fun. I mean, you've been down

that road many times. But when when you're one of those lawyers and you're waiting for the judge to come in and render their verdict, Like, what does it feel like on the inside for you? Not quite as bad as when you're waiting for a jury to come back. But what was the rationalization did the liverturnments gave from why they waited so long that there was there was all these different protocols that they had, they got suspended, they had to do, they had to appeal, the peel

had to be heard. Um the tour uh did X they had to do? Why that led to Z and I haven't in some of my notes, but it was, you know, sort of this process that had to play out behind the scenes, and the lawyer did a good job of laying it out. The tour pushed back a little bit, but ultimately in our closing remarks, the judge did nod towards the plaintiffs lawyer and said, you know, I do agree that this was about as timely as it could have been filed, this lawsuit, and so so

they did a good job explaining that. But you know, really, for all the different complicated factors that went into this, it just came down to um proving that you know, I repel were all harm would we'd be done to the plaintiffs. And because they'd already gotten so much money from live golf, then keep making money. They have other

ways to play play their way into the majors. Theoretically the judge ruled against him, but I thought it was I thought the lawyers kind of argued to a draw and that the deck was are we always stacked towards towards a tour on this particular issue, So it was it was an interesting, interesting kind of repartee. Well, I'm glad that the justice justice system worked. Yeah, god man, Peter. I one thing I'm I'm curious about is is your sense that that this is all just a part of

the long form process. This literally needed to play out. Not very surprising that these particular players lost this this battle, given the case they presented and when they presented it and how they presented it, and and yet this will be all part of what's going to be the long, the long narrative arc of of kind of the anti

trust uh you know battle. I think that's right. I mean, think how that if the result today had been different and then with players have been allowed go back on the tour, that would have been devastating to Monahan the FA. But I think it's you know, I think the question of whether there's an anti trust violation is a closer call and far more complicated and will take a while

to play out. You said that there are two aspects of anti trust law, monopoly and conspiracy, and monopoly is obviously one that seems to be the dark shadow looming over the PGA tour um. Well, how, how, given given the fact that it feels like they've been monopolistic and and gotten away with it for a long period of time, how is there a way that they that they win

the anti trust case. Well, you know, let me let me say, I think anyone who tells you how this is going to play out who's going to win, is um being overly confident his or her own abilities, because they are really very complicated issues. Monopolies can happen because of nefarious or purposeful actions, and monopolies can happen because of market forces and events that are not necessarily indicative

of anti trust violations. And there are certain aspects of the doctor world with points in playing in the tournaments and things that can have an almost when you were referred to as a monopolistic effect, but really simply as a way to strengthen the appeal at the PGA. There are media rights and media contracts which are more or less valuable depending on the or the sanctity of the game, and the higher the contracts are, the more monopolistic the game is. Because the persons are high, as so the

incentive the players high. But that doesn't necessarily mean it's anti competitive. It could it could mean just the opposite.

You know. I think that if the the PGA would do wealth for itself, if it focuses on so many issues, um, involving the politics, the the sort of psychological aspects of the game, whether the players themselves feel like the game will retreated, and their retreat If people from Live, for instance, are allowed to make their way the tournaments without having to go through the same rigorous um, you know, rigorous schedule and and rigorous standards that they have to go through,

it would might be you know, it might be interesting if this took the turn so it was less monetized to use that it were I think it was used in the courtroom today and more focused on what the effect of the PGA would be. Two um, not to buy it against society, Arabian government and the politics of that. It may be that the PGA are to be taking

a more political standard. UM. I mean, certainly you're not going to see an awful lot of basketball players going over the rush to play basketball and there I mean, there's certain political undercurrents that might be more attractive and make this less of a forensic battle over monopoly. So

you know, I do I think this is just the beginning. Well, and that was interesting because in some ways this today's hearing transcended the moment because whether or not these three players, who, let's be honest or not stars in the game, we're gonna get to play in the FedEx Cup. I don't think anyone was that emotionally invested in that particular question, other than the fact it was just this was the first battle, but the larger anti trust case is what

really matters. And so the tour tipped its hand a little bit in its defense when the lawyer, you know, he put up a slide that showed the player impact program from last year and that five of the top ten are now playing on on the Live Tour, and they had some stats about the three events that Live has played, how many elite players have had in the field versus the PGA Tour event that same week, and it was it was stacked in the direction of Live,

and you know, the lawyer basically says something the effect like, I'm sorry to say, but the competition is fierce, and so the tour is in this funny position of now what they haven't wanted to acknowledge Live publicly, but now in the court of law they're saying, Hey, these guys

are kicking ass and they're a real threat. We can't be ANOPU laue because they're taking all our players and they got better players than we do, and so they're kind of it's a little dance between the public relations you get in the Jay Monhan's press conferences and then

the legal argument is totally contrary to that. So I thought that was an interesting part of today the tour on some level, conceding defeat to Live, which then might end up biting them when it comes to the battle of World golf rankings and whether or not that you know, whether or not Live deserves the rankings, and whether or not Live can taggle their competitive you know, forum to be four rounds instead of three, that that could end up being being used against them, Yes or no. I

kind of doubt that the world rankings are PGA focused clearly, and Live can have its own ranking system. But I think then as long as the PGA doesn't conspire with the majors and as long as you Live is you know, viable, it's going to be it's going to be difficult to

prove anti competitive behavior. Yeah, I mean what you're saying, Matt is interesting because there's there's the quest, and both both entities, the Tour and Live are also battling in the court of public opinion, which is different than a court of law, and so um it is there's a

little dance going on which I found intriguing. And even on the point of um, you know this is this is different, but this it looked like there was going to be a key point in the ruling was whether or not the commissioner has the absolute power when when someone is suspended for any reason, that they can like make them sit out tournaments. Because in one regulation Peter said that when when you're on appeal, you're you're allowed

to keep playing. But then there's another by law that said, well, the tour, the commissioner, at his discretion essentially can even someone who's on appeal, he can bar from playing because this their very presence could be so inflammatory. The lawyer used kind of a weird example if a guy had hate speech on his hat, that's not going to happen. But you know, the idea that these live golfers would show up wearing live gear at at one of the PGA Tour flagship events, it was kind of a fun

thought exercise. And you know, I think the tour dodged a bullet there because the judge is not overly impressed by the language in these regulations. But it does speak to a larger question that abuses this whole debate is how much power does the commissioner have to set policy? Does he work for the players or do the players work for him? And I know you've jousted with Tim fincham anam with Jay Monahan, and I want to get your opinion on the unique role of the PGA Tour

commissioner to set policy and to make unilateral decisions. What is their role and when it comes to dealing with their own membership to say, for for Monahan to say that he works for the players is fashionable. I mean Monahan, Monahan runs the PGA, and if the PGA is successful, the players make more money. So in that very simplistic way he could he can without breaking you know, laughing out loud, make that clean. But Monahan has really almost

unfettered power in many ways. He has greater power than commissioners of other leaders because since the players are independent contractors and there's no union representing the players, and Monahan doesn't have the and I can the the the the anti competition or exemption that some of the other commissioners have it. On the other hand, he doesn't have any group fighting against him. Golfers, by their nature, are not

a particular cohesive group. They don't really and they have never historically joined together to fight for any particular principles as far as I know. So in that respect, Mona handles more. It can be more draftonian than some of the other sports commissioners. Peter, if Phil Nicholson had called you a year and a half ago and said, look, I've got some gripes, I got some issues. I'm doing these side games. They're charging me a million bucks. I don't have a control over my brand, my ability to

market my brand. We don't have a collective bargaining agreement within the structure of the PAH or unlike all the other sports. Peter, I want you to help me form a group of players to take on the PGA tour. I mean, is that would that have been a better system a way of going about this then going out and forming a breakaway tour with Saudi Arabia and undermining sort of like if Nicholson had called you a long time ago and sort of started fresh, would would you

have taken the case? And do you think you would have had a better case than what? And then the way this is all unfolded. Oh well, let me answer the first question first. I've had that conversation with some other players and I've tried to make that point. But golfers are very independent, independent people, and it was very hard to convince a core group of them to organize sort of wrestles some of the control from the commissioner the institute's programs that are fair to the individual players.

I think you know your second question is whether it would be better, and I guess that depends on what their goals are. If their goals are to make more money, I think that they lived tour probably is better for Niffers than if he had formed a unit to fight the PGA, and the better protect the player's rights, and if that's his priority, that's his priority for sure. I think if you could ever organize the members to actually act together for a greater good, it could make the

game a lot better. It could make the sort of procedural protections and other safeguards much stronger for the players. Like I said, if if all nifolers really cares about money, he probably went about in the way that it's better from Nicholson. Yeah, I'm not sure that he particularly cares about the game as much as he cares about himself at leastuch sort of just my opinion from watching him and listening to him over the years. Interesting how much

weight should this decision carry? You know, if you're if you're a fan and you're trying to make sense of all this, It's like, Okay, the tour is going to declare victory um, and they've I've already my inbox, I'm already getting statements and from the tour, and and you know they're they're trumpeting this like a major political victory. But in the larger scheme, can can you give some context to what this this really means? Like I should be where I really do think this is just the

first step. And I think at this point, the PA you ought to sort of step back and think about their overall strategy and whether over lisening members views on this and thinking about some of the political positions that can be taken would benefit them in the long run. I think it's really it is the first step, and it's too early to tell how this is going to play out and to give us to people some idea

of how long this process is going to be. At the end of the hearing, excuse me, the judge laid out a tentative timeline and she said September of twenty twenty three as the anti trust trial date, so that's thirteen months, and she was kind of apologized. I said, hey, I know, this is a really compressed timeline. You guys have to work really and there's like, oh boy, thirteen months is all we have. Like, you know, I don't know what having for breakfast tomorrow, So it's funny to

think about it so far in the future. But I know these are complicated things. And over the next thirteen months, if there's no settlements and both sides to get dug in, how many hearings and how many public events could we expect that will train a spotlight on the ongoing process. Well, part of it depends on whether everyone plays not actually or because the first battle will be over discovery of

production of doctor making people available for depth visions. And you know, lawyers can be lawyers, and so they either decide to work together or they'll have one dispute after another in the judge will have to get involved in the magistrate more likely at some point, probably suited than later. They'll be the first iteration of legal motions, probably emotions to dismiss like the PGA. I'm claiming that they can't they they can't make out and a trust violation, so

they'll be they'll be motion practice. You know, the same warriors are representing the PGA in this case is represented the PGA in the sink case. And you know we were in colort a lot and they were made a lot of emotions. It's just sort of the way they played the game. And sometimes it's effective and sometimes it's counter productive. Sometimes the judge is intriguement. Sometimes judges gets angry.

But if you like going to court, it's a good show for you, and it's um it's at a point, I mean, it'll be interesting to see and the strategies that become more and more evident. It's that process is going on, and then once they go through discovery, there'll be a second round. We used to second round the emotions hearings down those motions and ultimately maybe they'll get to trial. But thirteen months is not much time to

put together a case like this. That's amazing. I'm just thinking of all the billable hours because I counted up the tour lawyers in the courtroom. There was twelve of them, and they had their little rolling suitcases full of stuff. Some dude had like four huge boxes on a dolly, like they came two sopranos. They came heavy, and they were they were ready, and oh yeah, it was. It was an impressive mobilization of manpower. Like um I was.

I was amazed. And it seemed like every time the lawyer had a thought, someone would scurry over and had him a document and run back. It was like watching a ball boy at the US Open tennis, you know, Like the choreography was impressive. So um. Clearly, the you know, the tour sees US as a threat to its very sort of bival and they're gonna throw h every resource necessary to defend themselves. And uh, it was. It was

quite a display, honestly. Oh yeah. And and you look, the representing the tour had represented the PGA for a long time, so they they know, they know these they know the association, they know the players, and they'll they'll do a good job, you know. I think that they have to be careful not to sort of necessarily follow the old traditional payball because it's gonna be a heart occasion. I'm really looking forward to seeing how this all plays out. Obviously,

this is this is fascinating stuff. I really love your perspective and especially given your background in your history, so I really appreciate you. You're spending time with us and uh and informing us and hopefully we can have you on again in the future. Be great anytime. It's fantastic stuff. Good to talk to you too. I mean, my grandma really want me to go to law school, and I'm now regretting it because who knew that this was going

to take such a turn. I mean, but anyway, um, I was hoping you'd say that your grandma wanted you to be a sports writer, you know, and we could have anyway, we could have swapped. Yeah, so after we have not a horrible idea. All right, well, this that was Peter Ginsburg, pre eminent lawyer. Thank you for your thoughts, Matt Janella. As always, I'm Alan Scheff. This is the the end of this fire drill, but we know there's gonna be many more. We'll we'll keep doing these as

events warrant. You know. There was a big news break about Cam Smith joining Live, which is not official yet but it seems very close um anecdotally. After the Tour champion Ship, other players are expected to jump. So this story will continue to evolve and we will keep keep talking about it and then trying to educate and entertain all the listeners out there. So thanks for thanks for being here, Thanks to Pure and Matt. This is Alan Shipnik and that's the end. I been big and I

played to win, made a fortune within my ship game. Man. I ran the table, never thought I could fall. Then the winter time hit me like a cannon the ball and now I can't shake this losing the stream. Every road I take is a dead end stream. I got thoughts in my head, can't get them out, trying not to think what I'm thinking about. I got the thoughts in my head. I can't get them out. Trying not to think what I'm thinking about