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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

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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

The United States District Court has issued its decision on the PGA Tour’s motion to dismiss the “bib” lawsuit brought by the tour caddies. Viewed through the lens of  match play competition, the caddies lost 10 and 8.

For the non-lawyers among us, a motion to dismiss is designed to test the legal sufficiency of a complaint. Thus, the court assumes as true all the factual allegations made by by complaining party. In this case, the court  referenced the allegations of “great strife between the caddies and the Tour, with caddies complaining that their working conditions are poor and that the Tour does not treat them with common human decency.” The court referenced “one high-profile example, at a tournament in February 2015, [where] play was suspended because of a thunderstorm with high winds. Players and other people were permitted to go indoors, while caddies were left to seek refuge under an open metal shed or in their vehicles. This prompted ESPN analyst Scott Van Pelt to opine that the PGA Tour ‘treats its caddies like outside dogs.’”

Nonetheless, while the court noted that “the caddies’ overall complaint about poor treatment by the Tour has merit,” the court unequivocally stated that “this federal lawsuit about bibs does not.” Moreover, while courts who dismiss lawsuits often provide the plaintiff an opportunity to amend the complaint to bolster its claims, here the court dismissed the complaint “with prejudice,” “because the caddies have been unable to identify a way (and the Court is unable to think of a way) they could cure the defects in their complaint.”

Short of awarding sanctions against the caddies for the filing of a frivolous suit, there is no more intense thrashing that the court could have administered.

Here are excerpts from the court’s decision regarding certain of the legal theories asserted by the caddies:

Breach of Contract. The caddies alleged that, for each tournament, they must sign a form contract that provides that:

Caddies shall wear uniforms and identification badges as prescribed by the host tournament and PGA TOUR. All caddies are required to wear solid-colored, Khaki-style long pants, which touch the top of the shoe, or solid-colored, knee-length, tailored shorts or skorts and a collared shirt while on club property. Tshirts, jeans, culottes, skirts, capris, cut-off shorts and cargo-style shorts are not permitted. Acceptable colors shall be determined at the discretion of the Tournament Director.

The caddies claimed that the PGA directive that they wear bibs violated this agreement. As the court summarized the caddies’ argument, “the contract contains language imposing dress and uniform requirements on the caddies for each tournament. But the language about dress and uniform requirements does not explicitly mention bibs. The caddies seize on this silence to argue that the contract does not allow the Tour to make them wear bibs. And they argue that the bib requirement interferes with their right to make money off endorsements, because the bib covers space on their shirts that could otherwise display endorsements.”

Although the court noted that the contract’s silence regarding bibs arguably might be viewed as ambiguous in isolation, here, ”the context reveals that the language is susceptible to only one reasonable interpretation.” Specifically, the court noted that the caddies themselves conceded that “‘the PGA Tour has required caddies to wear bibs for decades.’”…  Moreover, each caddie is, according to the complaint, ‘forced to wear identical bibs during a given tournament.’… In other words, for decades, the bib has been the primary part of the ‘uniform’ that the Tour requires caddies to wear.”

Thus, for the court, “no reasonable person signing the contract after 2010 could believe he retained the right not to wear a bib during a tournament. The only reasonable interpretation of the contract is that the caddies agreed the Tour could make them wear bibs. It follows that the caddies have no claim for breach of contract.”

Duress. Referencing the caddies claim for economic duress, the court noted that the caddies argued that “the Tour ‘threatened to and attempted to interfere with [the caddies'] business relationships with their respective players and individual sponsors’ if they would not agree to wear the bibs. … The Tour also allegedly ‘threatened to or did in fact preclude caddies from working for their golfer [at Tour events] if they refused to’ wear the bibs. …The caddies assert that, because they ‘lack viable alternative employment,’ they had no choice but to agree to wear the bibs at the Tour’s insistence.”

The court was not impressed, ruling as follows:

The allegations in this lawsuit cannot support a theory of economic duress. It might be one thing if someone became a professional caddie in reliance on the notion that a significant portion of his income would come from logos displayed on shirts he wore during tournaments, only later to be forced to choose either to stop making that money or to stop practicing his trade. It is another thing for someone embark upon a profession whose practitioners have long been required to wear bibs, and who therefore have not been able to display logos on the part of the shirt covered by the bib. The caddies allegation that they were coerced into this arrangement on threat of extreme economic hardship is not plausible, and this claim is dismissed with prejudice.

Right of Publicity. As the court explained, “the caddies also allege the Tour is violating their ‘right of publicity’ by using them as ‘human billboards.’ They contend the Tour makes money by requiring the caddies to wear bibs, because the bibs display corporate logos and the names of corporate sponsors.”

While acknowledging that California (where the suit was pending) recognizes a right of publicity, the court determined the caddies were not legally entitled to invoke it, because “causes of action for misappropriation require lack of consent,” and here the caddies gave consent.

As previously explained, the contracts the caddies sign before participating in tournaments allow the Tour to require them to wear bibs. By definition, therefore, the caddies have consented to the use of their images at tournaments to display what is on the bibs. Further, in that same agreement, the caddies granted and assigned to the Tour their “individual television, radio, motion picture, photographic, electronic, . . . and all other similar or related media rights with respect to” their participation in Tour events. …It is therefore implausible that the caddies did not consent to the Tour’s commercial use of their likenesses in televising and otherwise depicting the caddies participating in Tour events wearing the bibs.

Antitrust.  The court stated that, to prevail on their claim of antitrust violation, the caddies would need to allege facts from which one could plausibly conclude that the manner in which golf products are marketed were not reasonably interchangeable, “such that even if the price of one advertising method went up in a meaningful way, companies would not switch to another method of advertising.” As stated succinctly by the court, “the caddies have alleged no such facts.”

Even assuming the caddies are correct that an endorsement of a product by a golfer or caddie is sufficiently different from an advertisement without an endorsement, the endorsement market cannot be so narrowly defined as to include only in-play endorsements and not also endorsements communicated via other media, because it isn’t plausible that an increase in the price of in-play endorsements would have no effect on the demand for other types of endorsements, or vice versa.

Lanham Act. The caddies alleged a breach of the federal Lanham Act based on what the court called “essentially a false endorsement claim”: they allege the Tour ‘used the likenesses and images of Plaintiffs to endorse the products and services of bib sponsors,’ thereby misleading golfing audiences into believing that the caddies themselves endorse those products and services.

However, as the court held, “a plaintiff can only state a ‘false endorsement claim’ if the use of his identity is ‘unauthorized.’” This claim, for the court, was not viable, in light of its determination that “the only plausible interpretation of the parties’ agreements is that the caddies consented to the very thing they now complain of – namely, the Tour’s right to make the caddies wear bibs at tournaments and to televise and otherwise accurately depict the caddies participating in those tournaments.”

Game, set, match… to the Tour. Sorry, wrong sport. From a legal standpoint, the only place for the caddies to go is to an appellate court. The definitiveness of the trial court’s ruling provides little optimism to those advocating the caddies’ cause.

Apart from a legal tribunal, the caddies only play is to the court of public opinion. A number of months ago, I posited as follows:

“While the merits of the underlying lawsuit are important, the most significant driver of a settlement decision likely will be the degree and intensity of the support the caddies are able to engender from the media, golf fans, golf organizations, and corporate sponsors. Without a meaningful outcry of support for the caddies, the Tour will treat the lawsuit as a defendant treats most litigation of this type: by attempting to dismiss counts at the outset or at summary judgment and ultimately settling or failing to settle based on the merits and the plaintiffs’ settlement demand.  If, however, the caddies successfully keep the case on the radar screen, rallying support either by public outcry or private persuasion by corporate sponsors, the Tour will negotiate with the caddies and agree upon a package of benefits to give the caddies, a byproduct of which will be the termination of the litigation.”

While the caddies lawsuit attracted some attention at the outset, the caddies were not able to muster sufficient public support for their position to convince the Tour that settlement was necessary. At this juncture, having been thumped big time by the court, the caddies cannot realistically expect substantial concessions from the Tour.

 

 

 

By: Rob Harris

As reported, “government attorneys allege four Nicklaus-owned entities filled close to an acre of wetlands [on Florida's The Bear's Club] in 2010 without permission from the U.S. Army Corps of Engineers in order to relocate a tee box, improve golfing conditions on the club’s 15th hole and make room for the development of five residential lots.”

The attorney for the Nicklaus organization disputes the allegations, asserting that the easement to the property authorizes the state, not the federal government, to address the wetlands issue.

The Justice Department takes issue with that assertion, contending that the Army Corps of Engineers has “jurisdiction over the wetlands under the Clean Water Act. The Bear’s Club violated the easement agreement by filling wetlands that were ‘not to be disturbed by any dredging, filling, land clearing, agricultural activities, or any other construction whatsoever.’”

By: Rob Harris

Here’s a link to a wonderful article tracing the legal desegration of public golf courses. As the article sets the stage:

In 1951, Holmes’ father Alfred “Tup” Holmes, uncle Oliver Holmes, grandfather Dr. Hamilton M. Holmes and family friend Charles Bell were turned away from the historic Bobby Jones Golf Course in northwest Atlanta and would go on to launch one of the first desegregation lawsuits in Atlanta.

Tup Holmes left that day without incident, but two years later in 1953 he filed suit against the city. The following year, District Judge Boyd Sloan ruled that blacks could play golf but only in accordance with the city’s “separate but equal doctrine.”

While preserving segregation, the city was ordered to devise a system to accommodate African Americans. The city’s solution was to allow blacks to use the public courses on Mondays and Tuesday. Tup Holmes, an amateur golf champion, balked.

The case, argued by a young Thurgood Marshall, went all the way to the U.S. Supreme Court, which decreed separate but equal unconstitutional and sent the case back to the district court to reverse the decision and render in favor of the plaintiffs.

The full legal chronology of this fascinating case–including a copy of the front page of the Atlanta Journal, with its banner headline “Open Golf Courses To Negroes, Supreme Court Tells Atlanta”– can be found here.

 

By: Rob Harris

In September 2013, we shared a story of civil litigation involving a Louisiana contractor, named Corey delaHoussaye, arising out of claims that he had improperly billed for post-Katrina work activities on days when he actually was playing golf.

Criminal charges subsequently were brought, and two weeks ago the prosecutors decided to dismiss the charges, following a court ruling holding that a subpoena had improperly issued, requiring that the evidence obtained be suppressed.

As reported,

“Prosecutors charged Corey delaHoussaye with dozens of counts of falsifying public records and theft, claiming he billed the parish for wetlands mitigation work after the storm when he was golfing, attending his children’s swim meets, going to the gym and visiting a Baton Rouge anti-aging clinic.

“The charges were based on evidence the Louisiana Office of Inspector General gathered — evidence delaHoussaye argued had been obtained in violation of his privacy and due process rights.

“Judge Brenda Ricks, of the 21st Judicial District, agreed, ruling Thursday that the inspector general’s subpoenas failed to state facts that would justify obtaining delaHoussaye’s golf and gym records.”

Mr. delaHoussaye claims the prosecution was maliciously brought in response to his blowing the whistle on potential frauduent acitivities by debris removal contractors.

By: Rob Harris

Fourteen months ago we reported on the arrest of a 46 year old golfer charged with the on course assault of a 76 year old golfer during their respective rounds at Australia’s Cooroy Golf Club.

For those of you who have been eagerly awaiting news of the judicial disposition, your day has come. The verdict is in–GUILTY. “Golfer David Peter Moriarty has been found guilty of bashing a 76-year-old fellow player in an on-course dispute which turned violent.”

As reported, “the two had history, having argued over ‘golf etiquette’ some weeks prior on the same golf course.”

On the day of the incident, the two golfers, although not playing together, found themselves in proximity while searching for their  golf balls.

“The victim, now 77, said he had examined Moriarty’s golf ball because he believed his was in the area.

“He said he waited for Moriarty to hit his ball and move on; however his presence seemed to disturb Moriarty.

“The victim said he couldn’t remember how Moriarty hit him, but was stunned by the blow.

“Other witnesses said the two men had a heated argument before the physical contact…

“Moriarty’s evidence indicated the victim had interrupted his golf game when looking for a ball.

“He said he had told the victim to ‘f*** off’ after the victim realised the ball he was inspecting was not his.

“But instead the victim remained to watch Moriarty play his shot, prompting more directions to ‘f*** off’.

Defendant Moriarty claimed that “the incident escalated when the victim entered his body space in an aggressive way and had struck the victim after the victim had tried to strike him.” The judge, however, wasn’t buying it.

“‘I reject the evidence that he (Moriarty) gave that he hit (the victim) because of (the victim’s) aggressive behaviour and that he struck once … to avoid physical violence.’

“‘It is clear from the evidence of the two independent witnesses that he hit (the victim) many times.’

“‘His (Moriarty’s) testimony is highly questionable and in my view improbable.’”

Mr. Moriarty’s attorney, Stephen Courtney, is reported to have observed that “it was fortunate for the victim and his client that the victim’s injuries were not worse” and that “his client had a problem with confrontation.”

“He makes poor choices,” Mr Courtney said.

You think?

 

 

 

 

By: Rob Harris

Here is an overview of golf legal disputes percolating in the past week:

 

By: Rob Harris

A recent North Carolina appellate decision provides a cautionary tale to those who seek to limit their personal liability by engaging in transactions through entities they form for the transaction.

Before the economic collapse, Angelo Accetturo, along with others, decided to build a golf course on land they had purchased in North Carolina. The wannabe golf course developers formed a limited liability company Wilderness Trail Holdings, LLC, which acquired title to the land. Mr. Accetturo, who was president of the company, met and engaged a company called Shapemasters to construct the golf course.

By the middle of 2008, after construction had been ongoing for a year and a half, the economic decline was in full swing, and Wilderness Trail stopped paying Shapemasters. Mr. Accetturo provided assurances that payment would be forthcoming, and Shapemasters, apparently relying on that committment, continued its efforts until  2009.

In 2010, Shapemasters prevailed upon Mr. Accetturo to sign a confession of judgment acknowledging that more than $2,500,000 was owed. The North Carolina Court of Appeals recently described the manner in which Mr. Acceturo signed the document:

It was signed before a notary public on 20 September 2010. Accetturo signed the document above an unlabeled signature line. Beside his signature, he wrote “WT” and “pres.” The verification page of the confession, executed the following day, states Accetturo is “owner” of WTDC and has “executed the foregoing Confession of Judgment in my capacity as President of WILDERNESS TRAIL DEVELOPMENT CORPORATION with full authority to bind WILDERNESS TRAIL DEVELOPMENT CORPORATION thereto.”

Shapemasters romptly sought to enforce the judgment, not only against Wilderness Trail, but against Mr. Accetturo individually. Accetturo balked, claiming that he intended to sign only on behalf of the company. The trial court rejected Accetturo’s argument, finding as follows:

1. Defendant Angelo Accetturo (Accetturo) freely and voluntarily executed the Confession of Judgment that was filed in this matter on October 5, 2010 (Confession of Judgment).

2. The Confession of Judgment is a signed, sworn, and written statement by Accetturo, expressly made on behalf of himself, Wilderness Trail Development Corporation, and Wilderness Trail Holdings, LLC, that concisely states why they are all jointly and severally liable to Shapemasters, Inc. (Plaintiff) for the work performed at a winery and the development known as Wilderness Trail.

3. Once filed, copies of the Confession of Judgment were immediately served, individually, on each of the three Defendants in October 2010, as is reflected by the Affidavits of Service and Return Receipts filed with the Court.

4. The affidavits of the parties relating to the present Motion indicate that Defendants made and intended for Plaintiff to rely upon representations that Defendants were jointly and severally liable to Plaintiff for its services.

5. Plaintiff reasonably relied, to its prejudice and detriment, on Defendants’ representations of liability and provision of the Confession of Judgment by providing additional services and forgoing other legal action against Defendants on the parties’ underlying contract.

Mr. Accetturo took an appeal, but the appellate court was equally unsympathetic to his position. As the court held, “the confession of judgment clearly lists all three parties and states Accetturo, WTCD, and Wilderness Trail Holdings are “jointly and severally” confessing judgment and are liable for the debt to Shapemasters.”

By: Rob Harris

“The head greenskeeper at a golf club in Donegal has been accused of assaulting another club member in a dispute over cutting grass.” So begins the story of the criminal prosecution of Leo McGlinchey, head greenskeeper of Ballybofey and Stranorlar Golf Club, “a lush mature parkland setting, with tree lined fairways and picturesque views of the Donegal Mountains and the Valley of the Finn River.”

Mr. McGlinchey allegedly ignored the admonition of a club official to not cut the greens due to frost. “Mr. McGlinchey denied attacking Mr. McMenamin but said that Mr. McMenamin had bent down in the car park and he had tried to lift him up.”

Well, you can read the rest….right here.

By: Rob Harris

For a number of months, we have been following the litigation that has followed the purchase of Nevada’s Silverstone golf course by a developer with aspirations for homes rather than fairways and greens. The litigation to date has not gone well for the developer, with presiding Judge Richard Boulware decisively ruling in favor of nearby residents who believe that land restrictions require the property to be maintained as a golf course. Judge Boulware has required that it be maintained during the litigation, and has gone so far as to hold the developer in contempt. Our most recent post and links to earlier ones can be found here.

Perhaps seeing the judicial handwriting on the wall,  the developer decided the messenger was the real problem. The developer decided it would seek to have Judge Boulware recuse himself from the case. Why? He apparently lives less than a mile from the golf course. In the first instance, the motion for recusal was submitted to Judge Boulware. Realistically, the developer could not have expected a favorable ruling and Judge Boulware did not disappoint. Here are excerpts from his decision:

This case is before the Court on a Motion for Recusal of District Judge filed by Defendant Desert Lifestyles, LLC … In its motion, Desert Lifestyles argues that the undersigned should recuse himself from this case, and that his prior orders and rulings should be vacated, because the undersigned owns a house approximately six-tenths of a mile from the Silverstone Golf Course, which is owned by Desert Lifestyles and is the subject of this litigation. Desert Lifestyles contends that this gives the undersigned a direct financial interest in the subject matter of this litigation or, alternatively, that it creates a bias or appearance of bias that calls his impartiality into question. Desert Lifestyles has also filed a declaration from its manager and attorney, Ronald Richards, stating that he believes the undersigned has a personal bias against Desert Lifestyles and in favor of Plaintiffs in this case due to the location of the undersigned’s house. For the reasons discussed below, Desert Lifestyles’s motion is denied…

“In its motion, Desert Lifestyles suggests that the undersigned “has a direct financial and pecuniary interest in the subject matter and outcome of this litigation” because “he owns a house in very close proximity (a half mile) to Defendant’s real property which is the subject matter of this litigation.” … Desert Lifestyles argues that the undersigned’s “property is within the impact zone of any ripple effect and neighborhood effect of the closure or redevelopment of the subject golf course.” Therefore, Desert Lifestyles contends, the undersigned should recuse himself due to his direct financial interest in the outcome of the litigation. Upon review of Desert Lifestyles’s motion, the Court finds no basis for recusal … The Court also finds that Desert Lifestyles misstates the record…

First, the undersigned’s property is not located within the Silverstone Ranch Community but rather in an entirely separate, gated community governed by a different homeowners’ association. These two communities are separated physically by, at least, three major streets. There is no direct road from the edge of the Golf Course to the undersigned’s property and certainly not a one-half-mile road. The distance from the undersigned’s property to the Golf Course is not “a few minutes [sic] walk away.” The actual distance from the Golf Course to the undersigned’s property by road is approximately two to three miles. There is no direct line of sight from the closest edge of the Golf Course to the undersigned’s community. Second, the two communities differ in terms of the nature and average size of the homes and lots in the respective communities.

More importantly, the language of the Preliminary Injunction and the record belie the allegation that proximity to the Golf Course alone, despite being located outside of the Silverstone Ranch Community, creates a direct financial and pecuniary interest. Throughout the proceedings and as reflected in the language of the Preliminary Injunction, the Court’s consideration of the impact of the Golf Course closure has been and is limited to the Silverstone Ranch Community and the 1,520 homes built around the golf course, including those directly on, abutting, and not abutting the course…

The Court never made any findings—nor was there an evidentiary basis for finding—that the economic impact of the deterioration of the Golf Course extended beyond the gated community of Silverstone Ranch. Indeed, there are other gated communities nearer to the Silverstone Ranch community than the undersigned’s community and the Court heard no evidence and reached no finding on these closer and more comparable communities. In sum, the Court had no reason for finding or believing that the deterioration of the Golf Course would impact homes beyond those in the gated Silverstone community…

Because the Court did not consider non-Silverstone community homes in its decision-making, the Court does not find that “a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned.”…

Even accepting as true the main factual allegation of the motion as to the distance between the respective properties, this allegation does not support a finding of bias or impartiality based upon financial impact on the undersigned’s property. The motion is based entirely on the argument that the mere relative proximity of the respective properties by itself establishes a basis for bias or impartiality. This conclusory argument, however, is not supported by the record in this case. As discussed previously, there was no finding and no testimony to support a finding that the decrease in property values in the Silverstone gated community extended beyond the homes in the community to other homes in the same zip code. Indeed, the expert testimony was very specific on the limitations as to property valuations. Thus, even accepting the factual assertion of the motion in this case, the Court finds that this assertion does not provide an adequate legal basis for recusal.

With Judge Boulware having denied to recuse himself, the developer’s hope is to convince a reviewing court. Don’t bet on it.

By: Rob Harris

Had Michael Bryant been able to tell a consistent story, he would have been on his way to trying to convince a jury why the Town of Brookhaven (New York) and the companies that manage its golf course should be responsible for the injuries he allegedly suffered when he “slipped and fell on a wet wooden railroad tie that lined a footpath on the golf course.”

Instead, a New York appeals court has booted his case.

The defendants asserted that Mr. Bryant assumed the risk of his injury when he decided to tee it up.

According to the court, “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….A participant consents to the risk of those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation.”

As the court noted, “among the risks inherent in participating in a sport are the risks involved in the construction of the field, and any open and obvious conditions of the place where the sport is played.”

Invoking this doctrine of “assumption of the risk,” the defendants successfully “demonstrated that slipping on the wet railroad tie was a reasonably foreseeable consequence of playing golf while the course was still wet from the morning dew. Therefore, the injured plaintiff, an experienced golfer who had played on the subject golf course on numerous prior occasions …assumed the risk of injury.”

In response, Mr. Bryant “claimed that overgrown grass camouflaged or hid the slippery condition of the railroad tie from view.”

The court, however, found his claim unpersuasive. Why?  According to the court, Mr. Bryant’s “testimony failed to substantiate that claim.” According to the court, at one hearing, Mr. Bryant “testified that the footpath was ‘partially obstructed’ by ‘the conditions of how long the grass was,’”, while “at his examination before trial he testified that the grass was ‘almost overgrown with the railroad ties.’” Moreover , “he further testified that, as he was approaching the footpath, he was looking ‘[a]head,’ was not walking with his head down, but walking ‘straight ahead,’ and saw the footpath in front of him.”

Without testimony that supported his claim that the railroad tie was hidden by the grass, the court deemed his assertion sufficiently unmeritorious to warrant a trial on whether he could defeat the defendants’ argument that he had assumed the risk of harm.

 

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