Welcome

I have discovered that there is no shortage of interesting, sometimes humorous and occasionally outright quirky legal disputes that have a golf connection. Please enjoy

I also invite you to join the Golf Dispute Resolution Linked In group, which you can access here.

Please don’t hesitate to share ideas for either the blog or the Linked In group.

By way of background, I am an attorney who serves as general counsel to a financial services company.  I also frequently serve as a mediator and arbitrator. And, of course,  I enjoy golf, most often at the Yale Golf Course. You can learn more about my experience here.

Now, for the required disclaimer, so I can remain in the good graces of the legal ethics powers-that-be:  This website, which may constitute Attorney Advertising in some jurisdictions, is for informational purposes only and does not constitute legal advice.

Best,

Rob Harris
rharris@golfdisputeresolution.com
914-482-2448

 

 

By: Rob Harris

You have to love the cash management strategy followed by Harris Golf Co., which owns or manages ten golf courses in Maine.

Claiming that it is protesting abusively high tax assessments on its courses, Harris Golf has adopted a corporate policy of permitting tax liens to be filed on its courses, and paying the overdue taxes before the expiration of the 18 month period the government must wait before it can foreclose.

According to Harris Golf’s president, “We believe that we’re being overcharged. If you look back at the history since we bought it, it’s a pattern. We always pay the taxes before the liens mature. For us, it’s the normal course of action. It’s how we run our business.”

Choosing to vote with its wallet, president Jeff Harris proclaims: “That is the only way we can get a vote — by dollars — holding them back. It is what it is, and the only thing you can do [to object] is withhold the money. It’s a very sore subject for me because we feel like we’re being abused.”

 

By: Rob Harris

Attorney-Golfers may cringe in fear of being associated with New Jersey attorney-golfer Jared Stoltz, who recently was assessed a three month suspension by the New Jersey Supreme Court for boorish and unprofessional behavior in connection with his defense of an insurance claim.

The allegations fell into multiple categories, one of which focused on the following statements Attorney Stoltz directed to his adversary in the case:

  • “Don’t feel you have to email me daily and let me know just how smart you are.”
  • “This will acknowledge receipt of your numerous Emails, faxes and letters ….In response thereto, Bla Bla Bla Bla BlaBla.”
  • “Did you get beat up in school a lot?, because you whine like a little girl.”
  • “Why don’t you grow a pair?”
  • “I’d send you the delivery receipt, but I put both your email addresses in my ’Junk Mail’ box, because that is all I get from you, JUNK.”
  • “What’s that girlie email you have.Hotbox.com or something?”

On another occasion, as the court noted “physical contact between [Stolts] and [his adversary] occurred, causing [the adversary] to say to [Stoltz], “Don’t touch me,” or words to that effect. [Stoltsz] replied, “Why would I want to touch a fag like you?”

As to these comments, the court noted as follows:

“The sarcastic and sophomoric comments … demonstrated a failure to treat [the adversary] with “courtesy and consideration.”… The wildly inappropriate — indeed, discriminatory — comments … also demonstrated a lack of courtesy and consideration.

“In this case, respondent’s conduct … ranged from childish to outrageous. It was not confined to a single incident but, rather, took place over the course of more than a year. In addition, respondent’s conduct grew increasingly hostile, as time went on.

Another focus of the court’s concern was that Stoltz allegedly lied in statements he made to the court regarding the circumstances surrounding his receipt of documents. Challenging the claim of deceit, Stoltz denied intentionally lying, claiming that the misstatements and surrounding circumstances were due to–ready for this–golf:

“I neglected my files, I played too much golf, I went to Punta Cana with my family all within two months. Was it wrong? I don’t know. This is the lifestyle that I’ve chosen, the practice I’ve chosen because I worked at Methfessel & Werbel for 15 years in a cubical [sic] rising to managing director. I didn’t want that anymore. I want to play golf. I do insurance work. I missed it. I screwed up. I had no motivation to lie to the judge about this particular thing.

“I now have hired two other attorneys, they review things, I review everything that comes in. Am I going to get lazy again andplay more golf? I hope so. But I certainly did not intentionally lie to Judge Kassel or intentionally lie to [my adversary].”

As to this, the court disagreed, finding that Stoltz, indeed, had intentionally lied.

With a three month suspension, Attorney Stoltz was presented with an opportunity to golf, golf, golf.

 

 

 

 

By: Rob Harris

The construction of the golf course to be utilized in the 2016 Olympics in Rio de Janeiro got off to a slow start because of hotly contested and widely reported competing land ownership claims.

Now, with the shaping completed and the growing of grass underway, new court proceedings have reared their ugly head. Ostensibly, the claims invoke environmental concerns. Reading between the lines, the bigger picture dispute surrounding the course may pertain to the economic benefits sought to be obtained once the Olympic torch is extinguished.

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By: Rob Harris

There is an interesting article in Sunday’s New York Times about plans to create an investment platform enabling one to obtain an ownership interest in a professional golfer’s stream of income.

Fantex, the company poised to embark on this concept, already courts investors in certain professional football players. The investments, essentially structured as an IPO, generate monies that are paid to the athlete, with the investors thereafter obtaining returns on the player’s salary, bonuses and endorsements.

Although the idea may seem farfetched, Fantex managed to convince Jack Nicklaus to join its Advisory Board.

And the risks? Aside from today’s talent who may have tomorrow’s yips? Well, as Fantex tells us,

Fantex, Inc.’s cash flows under its brand contracts will depend upon the continued satisfactory performance of the related contract party, and it does not have any rights to require the contract party to take any actions to attract or maintain or otherwise generate brand income.

“The contract party is neither Fantex, Inc.’s affiliate, nor a director, officer or employee of Fantex, Inc. and owes no fiduciary duties to Fantex, Inc. or any of Fantex, Inc.’s stockholders. The contract party has no obligation to enhance the value of the brand or disclose harmful information to the stockholders.

“Profitability of Fantex, Inc.’s brand contracts may also depend upon the contract party’s ability to attract and maintain endorsements and attract and maintain other brand income generating activities.

“Brand income may decrease due to factors outside the control of the contract party, such as an injury, illness, medical condition or death of the contract party, or due to other factors such as public scandal or other reputational harm to the contract party. In any such event, it is likely that the brand income with respect to such brand contract will not return to its prior levels or may cease completely.

“The contract party or other third parties may refuse or fail to make payments to Fantex, Inc. under the brand contracts…

” The brand contract does not restrict the contract party from incurring unsecured or secured debt, nor does it impose any other financial restrictions on the contract party.”

 

By: Rob Harris

I know of no golfer who has headed for a golf course expecting his day on the links will end with a police officer “read[ing] him his Miranda Warnings advising him of his rights.”

But, according to this police report, that’s apparently what happened to Michael Rich, whose day began as a golfer at Florida’s Madison Green Golf Club, and ended as a criminal defendant charged with two counts of Aggravated Battery.

From the police report, it seems as though Rich, playing alone, caught up with the threesome ahead of him. His request that one of the golfers mark his ball led to an altercation in which his putter served double weapon duty, first as a billy club and then as a sword.

Anyway, those interested in how a day on the golf course can involve activities other than golf, enjoy the police report….

By: Rob Harris

As its website proclaims, “It’s Another Beautiful Day at San Juan Hills Golf Club….”

And, if its lawyers have their way, there will be many more beautiful days at San Juan Hills. Never mind that the rest of the community might be a bit parched. Priorities must be restored.

The golf club recently filed suit against the city of San Juan Capistrano, accusing it of unlawfully draining the underground aquifer that services the course.

The club claims rights to the water by virtue of a 1997 agreement with the San Juan Basin Authority.

Upset about the recent drought conditions, the golf club has alleged the city is acting unlawfully by pumping “over one half billion gallons of water each year from the aquifer, depriving The Golf Club of water it needs for its property.”

Hard to believe that less than two years ago, live sharks were appearing on the very same golf course. But I digress….

 

By: Tayler W. Tibbetts

Do you enjoy playing a round of golf at the local “muni”? Economic pressures borne by both the golf industry and local governments may portend a change in the way municipalities manage their golf courses.

The propriety of privatizing municipal golf courses has been widely discussed in the golf industry over the past decade. Unsurprisingly, the discussion is heating up again today. Indeed, city-owned golf courses pair an industry lamenting declines in participation rates with bureaucratic entities struggling to keep balanced budgets in a stagnant economy. As a result, it is unsurprising that privatization has once again percolated to the front of the golf industry’s drawing board.

While the pros and cons of municipal golf course privatization are already being weighed, few consider the legal ramifications of such a choice. Further, potential legal problems may not be accounted for in the privatization cost analysis. Therefore, without opining on whether a municipal golf course should privatize some or all of its operations, I would like to discuss one important legal issue implicated in a decision to privatize: state labor law.

I. Where Privatization and Labor Law Meet
Privatization does not mean transitioning a municipal golf course into a private club. Rather, privatization of a municipal course often occurs through hiring a private company to manage the golf course in the city’s stead. State labor law is implicated in this process because of the obligations municipalities may owe to public employees who might not be hired by the private company assuming control of the golf course.

II. Case in Point: A Labor Law Challenge to Municipal Golf Course Privatization
For example, union representatives of golf course employees for the District of Cook County, Illinois, claimed that the District’s announcement that it was implementing a plan to privatize its municipal golf course and lay off 97 employees violated the District’s obligation under Illinois state law to bargain in good faith with public employees’ exclusive representatives. See 5 Ill. Comp. Stat. § 315/10(4). In October of 2002, the District had announced the impending privatization of the municipal golf course due to budgetary problems (the privatization of which would begin in December of the same year) without consulting with the golf course employees’ representatives.

Illinois courts apply a three-part test to determine “whether a matter is a mandatory subject of bargaining” between an employer and employee representatives. First, matters dealing with wages, hours, and terms and conditions of employment require bargaining. Second, the matter must not be one of inherent managerial authority or, third, if the matter is one of inherent managerial authority, the benefits of bargaining outweigh the burdens of doing so on the employer. Forest Preserve Dist. v. Ill. Labor Rels. Bd., 369 Ill. App. 3d 733, 753 (2006).

The Illinois Court of Appeal agreed with the employees that the District had engaged in an unfair labor practice. It determined that the privatization decision was sufficiently “connected with the terms and conditions of employment,” and justified bargaining even though the District was faced with pressing budgetary problems. Though the budgetary crisis was one of a managerial nature, the importance of bargaining outweighed the burden on the District. Of particular importance to the Court was the time between the announced privatization (October) and implementation of the plan (December). There was yet time to bargain. See id. at 753-54.

III. Conclusion
This is but one example of labor issues that may arise during the municipal golf course privatization process. In addition, labor laws vary from state to state. Thus, to ensure that the transition from publicly owned and managed, to publicly owned and privately managed, results in a costs savings to the municipality (often the primary impetus behind municipal golf course privatization), a city or county would do well to carefully review its obligations under relevant labor law rather than risk the expense of labor litigation.

I welcome any comments or inquiries relating to the issue of municipal golf course privatization, or any others hewing to the intersection of golf and the law.

‘When you dish out illegal stock tips at the golf course, there are no mulligans.”

So begins the interesting and informative article by Patrick Temple-West in Politico discussing two insider trading cases recently brought by the Securities and Exchange Commission “that center on the relationships between golfing buddies and how their chitchat in the tee box or at the 19th hole turned into lucrative and illegal trading bonanzas.”

According to a former official in the SEC’s enforcement division, quoted by Temple-Best, “[g]olf is becoming a recurring theme in insider trading cases.”

Golf Dispute Resolution’s posts about the two cases discussed by Temple-West can be found here and here.

By: Rob Harris

Here’s how a New York appellate court described what happened:

“On August 14, 2008, the plaintiff Arnold Simon (hereinafter the injured plaintiff) allegedly tripped and fell while playing golf on a golf course owned and operated by the defendants Hamlet Windwatch Development, LLC, and Hamlet Windwatch, LLC (hereinafter together the defendants), located in Hauppauge. The injured plaintiff exited his golf cart on the cart path near the top of a staircase leading down to the green at the second hole. While walking to the rear of the golf cart to retrieve his putter, he stepped into an area of the cart path containing a depressed drainage grate. As a result, he fell forward and partially onto the wooden step leading down to the green at the second hole.”

Question: Would / could / should Mr. Simon prevail in his suit to recover for personal injuries resulting from this accident?

Answer: No / no / no.

As the court explained,

“Under the doctrine of primary assumption of the risk, ‘by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation’ …  Those risks include risks associated with the construction of the playing surface and any open and obvious condition on it…”

Therefore, because the plaintiff failed to present any factual argument that would preclude application of the assumption of risk doctrine, “ the defendants were entitled to summary judgment dismissing the complaint.”


By: Rob Harris

Although sometimes attributed to Abraham Lincoln, others question the origin of the proverb: “He who is his own lawyer has a fool for a client.” My vote for likely candidate is an attorney marketing trade group.

Whatever its origins, the Appellate Division of the New Jersey Superior Court recently provided at least temporary relief to a member of The Ridge at Back Brook who initially undertook to represent himself in court proceedings challenging his obligation to pay dues and associated country club costs totaling approximately $87,000, which liability, with finance charges, had by the time of judgment grown to more than $250,000.

The member’s substantive defense apparently was that his dues “were improperly utilized for capital and debt service, contrary to the terms of the membership agreement, which provided it was to be utilized, if at all, exclusively for operational expenses” As the court explained, “Defendant asserted that plaintiff took this course because ;the project was millions of dollars over budget’ even though plaintiff ‘affirmatively advised’ at the contract’s formation that ‘there was no debt and construction was within budget.’”

The trial court, however, refused to entertain the member’s arguments, finding that he failed to present them timely and in accordance with the court’s rules and procedures.

The appellate court, however, showed some empathy. As its opinion states:

We … hold that a pro se litigant is entitled to nothing less than that to which a litigant is entitled when represented by a negligent attorney. That is, … pro se litigants are not entitled to greater rights than litigants who are represented by counsel. But we also [have] recognized…– in concluding that a self-represented litigant was deprived of a meaningful opportunity to be heard due to a lack of understanding of motion practice – that it is ”fundamental that the court system . . . protect the procedural rights of all litigants and to accord procedural due process to all litigants.”

Consequently, the appellate court sent the case back “for further consideration of defendant’s motion to be relieved of the consequences of his failure to adequately represent himself.”

 

 

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