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 has more than 2000 members.

We also recently established a Twitter account (@golfdisputes). All twitterers are welcome to follow.

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

A fundamental tenet, understood but too often ignored by golfers, is to not make matters worse. Bite the bullet, get out of trouble, don’t go for the miracle shot.

Perhaps Australian doctor Bing Michael Oei should have followed that strategy after he found himself expelled from the Australian Golf Club for cheating. As reported:

“In March this year, the Australian Golf Club board found Dr Oei’s cheating to be ‘unbecoming conduct’ and expelled him after a disciplinary hearing,

“This came after club members reported seeing Dr Oei handling his ball to improve his position, out of sight from his playing partners.

“It was alleged that, in July last year, he picked up his golf ball and threw it underarm three metres in an attempt to improve his position.

“Dr Oei denied that he had done anything in a dishonest fashion…

“In November, it was alleged he moved his ball one metre alongside the fairway bunker.”

Instead of taking his medicine and moving on, Dr. Oei “claimed there would be ‘serious consequences’ if he lost his Australian Golf Club membership, including ‘loss of enjoyment of club amenities’ and ‘damage to his reputation.’”

“If the club did not give his membership back, he wanted compensation for his loss.”

The club said no, and Dr. Oei carried through on his threat and sued the club. To no avail. Now, Dr. Oei not only has the stigma of expulsion, but the publicity of an adverse court decision that recently issued, and has been widely reported, including the following:

“On Thursday, Justice John Sackar found there was  no ‘legitimate basis’for the courts to interfere with the club’s decision to expel Dr Oei. As Judge Sackar further held, “But when pressed further as to what his attitude to the charges was, [Dr. Oei"s] response was that he may have erred in throwing the ball rather than dropping it.”

“The board was entitled to reject the Plaintiff’s account and find reasonably that he deliberately flouted the rules again to place himself in a more advantageous position,” Justice Sackar said.

Dr Oei also tried to argue that his actions did not fall within the definitions of “unbecoming conduct” but Justice Sackar disagreed.

“It seems to me that a deliberate flouting of the rules would reasonably be in context regarded as conduct unbecoming.”

 

By: Rob Harris

USGA Rule of Golf 6-8 addresses discontinuance of play. Here’s what it says:

The player must not discontinue play unless: (i) the Committee has suspended play; (ii) he believes there is danger from lightning; (iii) he is seeking a decision from the Committee on a doubtful or disputed point… or (iv) there is some other good reason such as sudden illness. Bad weather is not of itself a good reason for discontinuing play.

Nearby lightning strikes usually qualify.

Well, golfers at Springfield (Missouri) Golf & Country Club recently had a more unusual opportunity to potentially invoke Rule 6-8.

Reportedly, club member Donald Weber was packing more than 14 clubs when he purchased a bucket of range balls and rented a golf cart before heading off to the maintenance building. Apparently, Mr. Weber is also a former employee of the club, having lost his job a number of months ago. Upset with his former boss, Weber confronted him with a gun. Fortunately, no shots were fired before police arrived and chased Weber down.

In the meantime, the “golf course had to pull golfers off the course.” Reports don’t indicate that a tournament was in progress, but presumably “man with a gun” would qualify as a reason equally compelling as lighning or sudden illness to warrant discontinuance of play.

Unless, of course, the tournament officials preferred to first review the video tape with the contestants at the end of their round.

By: Rob Harris

Now that the USGA has issued its “Statement Regarding Dustin Johnson Ruling,” I take off my golf fan hat and replace it with my lawyer hat. According to the USGA, if the evidence “shows that it is more likely than not that the player’s actions caused the ball to move, the player incurs a one-stroke penalty.”

This is similar to the standard of proof in most civil litigation, where a party must prove elements of its case by “a preponderance of the evidence.” However, in a subset of civil disputes, a party must prove its case by a higher standard of “clear and convincing evidence.” And, in criminal cases, the prosecution must show guilt “beyond reasonable doubt.”

In addition to the standard of proof, there’s the issue of who has the burden of proof. In most (but not all) legal disputes, the party asserting the claim bears the burden. And, seemingly, that’s what the USGA viewed as its obligation here–”officials reviewed the video…and determined that based on the weight of the evidence, it was more likely than not that Dustin caused his ball to move.” In other words, it wasn’t up to Dustin to convince the officials that he didn’t do it.

Nonetheless, just as in a court case–where a defendant has the right to tell his story–the USGA claims it wanted to provide Dustin the opportunity to tell his. Thus, per the USGA, “it is normal for rulings based on video evidence to await the end of a round, when the matter can be discussed with the player before the score card is returned.” Stated somewhat differently, the USGA believes–or until yesterday believed–that, in determining whether “it is more likely than not” that a player caused the ball to move, it was important (or at least fair) to let the player offer his or her insight. Of course, Dustin’s views were then rejected by the USGA, calling into question the rationale for inviting them.

The USGA has promised a review of its procedures. Yesterday showed that, in key instances, golf tournament rulings need to be made in real time, not like a court proceeding that determines after-the-fact what happened. Look for the USGA to decree that rulings will be made on the evidence available at the time, without after-the-round input from the golfer. Perhaps to ensure a heightened perception of fairness, the USGA may elevate the standard of proof to something along the lines of “clear and convincing evidence” of a rules violation.

 

By: Rob Harris

I had planned today to write about the Gooseinator, the fierce looking product whose owner claims “Effectively Gets Geese off of Your Property Quickly and Efficiently.” And those interested can read here about how  a Goosinator with a mind of its own allegedly “unexpectedly turned on at full force and high speed, slicing severely the left ulnar nerve, tendon, and artery” of golf course worker Alfred Parcells III.

However, today’s Goosinator story has been preempted by news of the the securities fraud lawsuit filed against Winged Foot and several of its governing insiders.  According to the complaint,

“starting no later than the early 1960s, over the past decades and continuing up to the present day, plaintiff, and other class members, were solicited to sell their shares based upon materially false and misleading representations, for amounts ranging from approximately $1,000 to the recent $3,000 purchase by the club of plaintiff’s share, when defendants knew this share could be worth between $500,000 to $1,000,000 or more.”

Plaintiff Kevin Clune, owner of one share that he inherited from his mother, alleges the fraud goes back decades, and that in 1960 the club ignored legal advice to have shares appraised so that the club could acquire them at fair value.

Plaintiff asserts that the club president authored a letter in 1975 in which he stated that “[s]omeone, who [can afford to hire a lawyer] may come along one day [and litigate a rejected transfer], but so far we have been lucky… If such litigation were brought, my view is that Winged Foot would not only lose the case, but would also lose many future opportunities to pick up shares.”

 

By: Rob Harris

Tony Mauro at National Law Journal has authored an extremely entertaining article about Chief Justice Roberts’ recent foray into the world of golf, describing how his opinion in U.S. Army Corps of Engineers v. Hawkes included a description of the use of peat “to provide structural support and moisture for smooth, stable greens that leave golfers with no one to blame but themselves for errant putts.”

(Thanks also, Tony, for the Golf Dispute Resolution shout out.)

Armed with Justice Roberts’ education about the importance of peat and golf, I did my own investigation and discovered that courts on various other occasion have found themselves discussing legal questions involving peat and golf.

One case, Pioneer Peat, Inc. v. Quality Grassing & Services, Inc., addressed claims of breach of warranty with respect to peat utilized in golf course soil. Another case, Fisons Horticulture, Inc. v. Vigoro Industries, Inc., addressed a trademark claim by a company that sold peat under the name “Fairway” was being infringed by a fertilizer company whose product was called “Fairway Green.”

However, my new favorite peat and golf case is an Iowa criminal matter,  State v. Flynn.  The unfortunate Mr. Flynn was convicted of bookmaking and “keeping a gambling house,” a conviction based on undisputed facts, including  ”the contents of cassette tapes found by a private citizen and delivered into the custody of police.”

On appeal, Mr. Flynn argued “the trial court committed error of constitutional magnitude” by permitting the introduction of the tapes into evidence.

The Iowa Supreme Court teed up the case as follows:

“In December of 1982, defendant learned that his home was under police surveillance. As a result, he decided to move certain records of financial transactions located in his home to a different location. The records in question consisted of thirty-three cassette tapes, two notebooks, two sheets of paper with names and numbers, and a ledger book. Defendant considered various locations for the records, and he decided to transfer these records to a locker contained in a locked Quonset building on the premises of the Urbandale Golf and Country Club of which he was a member. The Quonset building in question was the location where defendant stored his motorized golfing cart during the winter season when the club was closed.

“On December 11, 1982, defendant took these records in two paper sacks to the golf club grounds. The club was closed for the season. Defendant observed no one in the area. The area was not visible to the general public, was fenced, and was posted with “no trespassing” signs. When defendant reached the building, his key would not unlock the door. Believing he had brought the wrong key, defendant temporarily placed the two sacks containing the records beneath a tarpaulin which was covering a quantity of peat moss used for golf course maintenance. Defendant then left the golf club premises to obtain the proper key. He did not return for approximately two and one-half hours. When he returned the sacks and their contents had disappeared.”

Unfortunately for Mr. Flynn, during this two-and-one-half-hour interlude, “a private person … found the records in question beneath the tarpaulin where defendant had left them. That person had called a police officer with whom he was acquainted, and on the officer’s advice the private person brought the records to the police station. There the police officer looked at the records, played two cassette tapes, and learned the identity of defendant and the nature of his gambling activity. He then turned the sacks of records and tapes over to vice investigation officers.”

Confronted with tapes that didn’t lie, Mr. Flynn was left to argue that a private citizen’s discovery of the tapes at a golf course, on top of a tarpaulin covered pile of peat moss constituted an unconstitutional search and seizure.

Given his line of work, Mr. Flynn perhaps knew the odds were against him, and the Iowa Supreme Court so determined:

“[W]e conclude that defendant’s choice of the peat moss pile as the temporary location for his records, gave rise to no constitutionally protected privacy right. The open area of the country club was accessible to all of the private members and others given permission to enter. It was not within the curtilage of a protected area.

“We do not doubt that defendant hoped his records would not be discovered under the tarpaulin, and this may have amounted to his subjective expectation that anyone finding them there would respect his personal interest in the secrecy of their contents. Such subjective hopes or expectations, however, are not sufficient to activate constitutional protection.”

While of no practical help for Mr. Flynn, it is perhaps noteworthy for afficionados of the Fourth Amendment (or golf course peat moss cases), that the defendant did corral two dissenting votes from the court. As the dissent argued,

“[d]efendant put the materials in sacks that he intended to store in a locker in a locked quonset hut on the premises of his country club. The hut was located in a valley on the golf course a considerable distance from the surrounding residential area. The club premises were marked with ‘no trespassing’ signs, and only club members or their guests had a right of access. Because the time was mid-December, the course was not actually in use.

“When defendant discovered he could not obtain access to the quonset hut, he looked for another place to secrete his materials on a temporary basis. He saw a large pile of peat moss covered by a tarpaulin near the quonset hut. He looked carefully in all directions and saw no one else on the club premises. The site could not be seen from the residences near the golf course. The peat moss and tarpaulin were frozen. Defendant broke the seal on the tarpaulin, lifted a corner sufficiently to place his sacks underneath it, and placed the frozen tarpaulin over the sacks to conceal them. The sacks were not visible. They were to remain under the tarpaulin only until defendant returned for them less than three hours later.

“In these circumstances it defies reality to suggest that defendant’s expectation of privacy was not objectively reasonable and legitimate…Here the defendant’s presence on the premises of the private golf club was lawful. He obviously had authority to store personal possessions there. The fact that the place he chose for temporary storage of the two sacks turned out not to be secure does not diminish his right to expect that his interest in his property would be respected by anyone reasonably likely to be on the premises. I believe the record sufficiently demonstrates a legitimate expectation of privacy.”

 

 

 

By: Rob Harris

Those interested in the back story giving rise to Phil Mickelson’s recent problems with the Securities and Exchange Commission will enjoy the recent New York Times story by noted author and journalist James Stewart.

Stewart goes upstream to discuss the financial difficulties faced by Thomas C. Davis, who pleaded guilty to twelve felony counts for divulging inside information about Dean Foods while he served as its chairman. Davis’ information allegedly was divulged to Billy Walters, who was Mickelson’s source.

As Stewart posits, Davis “should be enjoying all the perks of a long and distinguished career at the pinnacle of Wall Street and the Texas business elite. These include golfing at the prestigious Dallas Country Club and Preston Trail Golf Club, where he was a member; trips to Las Vegas and golf tournaments on the private jet he co-owned; and fractional ownership of two professional sports teams, the Texas Rangers and the Dallas Stars.”

Stewart opines that Davis’ actions were motivated by a simple need for money.

“Mr. Davis was so desperate for money he even took from a charity. According to the S.E.C., Mr. Davis ran a charity that raised money for a Dallas shelter for battered women and children. The charity, tax records show, was Shelter Golf Inc., which held an annual one-day pro-am golf tournament at Preston Trail to benefit Genesis Women’s Shelter & Support. The event typically raised over $400,000 and, after expenses, contributed about $300,000 a year to Genesis.

“Mr. Davis was a co-president and trustee of Shelter Golf; the golf legend Lanny Wadkins was one of five other trustees. According to the S.E.C., in August 2011, Mr. Davis told his assistant to write him a check for $100,000 on the charity’s account, which he then used to cover an overdraft in his personal checking account of $80,000.

“‘This $100,000 check resulted in a significant shortfall in the amount available for donation to the battered women’s shelter,’ the S.E.C. said in its complaint. ‘Davis first delayed the charity’s donation to the shelter and later wrote a check for a partial amount only after prompting by the shelter leader and promising another $100,000 by the end of the shelter’s fiscal year.’

“Mr. Davis eventually repaid the $100,000 using money he had obtained as part of the insider trading scheme.”


By: Rob Harris

Between 8:30 and 9:30 on September 12, 1996, that morning, Michael “Gifton” Cousins and Jason Campbell, both caddies at New York’s Pelham Country Club, got into an altercation. Cousins left the club, returned about 20 minutes later with a knife and fatally stabbed Campbell.

Fast forward almost twenty years. Mr. Cousins only now has been sentenced to 9-18 years, following his guilty plea to manslaughter.

The wheels of justice don’t usually turn this slowly, not even in New York, but there was an extenuating circumstance here.

Following the crime, skipped town. Only last October was he found in Jamaica, and arrested by the  Jamaica Constabulary Force Counter Terrorism and Organized Crime Fugitive Apprehension Team.

According to a report, during his years on the lam, “Cousins had been listed as one of Westchester’s most-wanted fugitives and was featured on the television show ‘America’s Most Wanted’ in 2008 and 2009.”

By: Rob Harris

A recent decision by an Ohio federal court provides an update on a lawsuit we first discussed almost three years ago.

Crown Batteries sued Club Car for breach of contract and warranty when Club Car ceased using Crown’s batteries in electric golf carts. Club Car claimed the batteries were defective. Crown asserted that Club Car failed to follow specifications.

In October 2013, the court denied Club Car’s motion to dismiss contract and warranty claims. Discovery proceeded, and the court then found itself with a request by Crown to hold Club Car accountable for the destruction of batteries that could have provided evidence in the lawsuit.

Apparently, independent of the litigation, Club Car had a standard battery destruction process. It failed to alter this process during the litigation, and Crown claimed that Club Car’s failure to do so amounted to spoliation of evidence.

In a detailed opinion, the federal court agreed, finding that, even though Club Car did not act intentionally for the purpose of depriving Crown of the availability of the batteries as evidence, Club Car’s actions nonetheless were sufficiently serious to require strong remedial action. As the court held:

“Club Car’s degree of fault weighs in favor of imposing a mandatory, non-rebuttable inference [that the evidence would have exposed facts unfavorable to Club Car]. While the company did not act with the intent to deny Crown access to the batteries, it knowingly spoliated evidence for at least three-and-a-half years. It was on notice, moreover, of Club Car’s interest in the batteries no later than March, 2014, and it should have been foreseeable that, in litigation concerning defective batteries, at least one side would want to take a look at the batteries. Nevertheless, its spoliation was total, leaving no batteries left for Crown to use to defend the breach-of-warranty claims.

“The relevance of the spoliated batteries, and the corresponding prejudice to Crown, also warrants a harsh sanction. Club Car’s spoliation has left Crown without the means to prove that its batteries failed for a reason that Crown did not warrant against.

“Given these circumstances, a permissive-inference is inadequate to cure the prejudice that Club Car’s spoliation of critical evidence has inflicted on Crown…

“Finally, I am mindful that a non-rebuttable instruction may effectively decide the case in Crown’s favor. But Club Car’s fault is clear, the prejudice to Crown manifest, and the spoliation total. In these circumstances, Club Car ‘should bear the risk of prejudice from [its] failure’ to preserve the batteries…

“The only consideration that arguably militates in favor of a lesser sanction is Crown’s failure to request production of the batteries earlier in the case, or to exercise its contractual right to inspect the batteries. Had Crown taken either of these steps, the parties likely could have preserved some representative sampling of the batteries.

“But I do not place great weight on this omission or find it particularly relevant.

“The duty to preserve the batteries was at all times Club Car’s duty, not Crown’s. At no time before October 22, 2015, moreover, did Club Car disclose that its dealers and customers were destroying the batteries that form the basis of its warranty claims. In fact, Club Car resisted those efforts, and it was uncooperative with Crown’s efforts in November, 2015, to preserve whatever batteries may have remained.

“The sanction will therefore be a mandatory, non-rebuttable adverse-inference instruction.”

By: Rob Harris

Congratulations to Anniston, Alabama’s White Plains High School’s girls golf team, which recently won its second consecutive state championship.

The team now needs a new coach, as Marcus Harrell has tendered his resignation.

It appears as though Coach Harrell and the school administrators didn’t see eye-to-eye regarding the awarding of championship rings to team members. Coach Harrell was of the view that all team members were deserving of rings, whereas school officials decreed that only starters should receive them.

As Coach Harrell explained,

“These girls were practically our varsity B-team… They were our non-starters. These girls played in varsity tournaments, these girls played in the varsity county tournament, these girls competed in sectionals, and I turned them in as alternates (for the state tournament) in case an injury occurred.

“Your back-ups have the potential to play in the state tournament.”

The school claims that money wasn’t the issue. Sure seems like a reasonable resolution could be found.

 

When asked about the PGA Tour’s decision to move the World Golf Champtionship from Donald Trump’s Doral to a Mexico City course, Rory McIlroy smiled and said: “We just jump over the wall.” Bless your heart, Mr. McIlroy, bless your heart.

« Older entries