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Federal Circuit Court Judge Beth Labson Freeman has ruled against three LIV Tour golfers that were seeking a temporary restraining order (“TRO”) to play in the FedEx Cup Playoffs.

Nature of Dispute
Talor Gooch, Matt Jones, and Hudson Swafford were all PGA TOUR members who joined the LIV Tour.  The LIV Tour is a new golf tour backed by the Saudi Arabian government’s sovereign wealth fund.  The establishment of the LIV Tour and the players who have joined the LIV Tour have been the source of controversy.

The PGA TOUR suspended these three players for joining the LIV Tour.  The Players filed an anti-trust lawsuit alleging that the PGA acted an unlawful monopoly in suspending them for playing for LIV, Inc.   They sought an emergency injunction to allow them to play in the upcoming FedEx Cup Playoffs. The players claim that they earned enough points during the 2021-22 PGA TOUR season to be qualified for the FedEX Cup Playoffs, and were barred solely because of their affiliation with the LIV Tour.

Requirements to Obtain a TRO
A TRO (or preliminary injunction) is an extraordinary remedy not to be granted unless the movant establishes the burden of persuasion as to four requirements. To be eligible for a TRO or preliminary injunctive relief under Rule 65 of the Federal Rules of Civil Procedure, a movant must establish each of the following elements:

(1) a substantial likelihood of success on the merits;

(2) irreparable harm to the plaintiff unless the injunction issues;

(3) the threatened injury to the plaintiff outweighs the harm to the defendant if the injunction issues; and

(4) the injunction will not disserve the public interest.

Often, whether a TRO is granted or denied hinges on the issue of irreparable harm. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of an injunction are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.

TRO Denied
After hearing the arguments of both parties, Judge Freeman denied the TRO.   She found the TRO filing was timely, even though the players waited several months to seek an injunction. She also acknowledged the importance of the FedEX Cup Playoffs as a major tournament and was satisfied the players had standing to have the opportunity to play in the Playoffs.

However, Judge Freeman found that the players failed to meet their burden of establishing irreparable harm.  Specifically, Judge Freeman stated from the bench that the trio’s LIV contracts which they negotiated with the LIV Tour were “based upon the players calculation of what they would be leaving behind and the amount the players would need to monetize to compensate for those losses.”  She noted that the losses were well known to the players at the time and clearly monetized.  Furthermore, Judge Freeman found it significant that the players will be earning more playing in the LIV Tour than what they would reasonably have been expected to earn under the PGA Playoffs.  As a result, Judge Freeman held that the players could not establish irreparable harm.

Judge Freeman also agreed to give deference to a private business’s disciplinary rules and found the players could not establish a likelihood to succeed on the merits at this early stage of the litigation.

For these reasons, Judge Freeman denied the TRO.  This means that the players will not advance their position in the FedExCup Playoffs, which could likely impact their major-championship prospects for next year.

Takeaway
In this case, like in many others, the court carefully scrutinized the element of irreparable harm in determining whether to issue a TRO.  Too often, plaintiffs seeking a TRO are primarily concerned about showing that they ultimately have a winning claim, and gloss over the irreparable harm argument.

The PGA Tour’s successful opposition to the TRO in this case serves as an important reminder that a TRO is an extraordinary remedy.  Those seeking a TRO should understand that it is the exception rather than the rule.   To obtain a TRO, the movant must establish each of the four requirements, including irreparable harm to the movant if the TRO is denied.

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