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: 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.”

 

 

By: Rob Harris

As if changing demographics and an economic downturn weren’t obstacles enough. Now, country clubs are facing targeting by the Securities and Exchange Commission.

Last month, we noted that the SEC had charged seven golf buddies with insider trading.

Now, the federal government has announced that civil and criminal charges have been brought against the senior vice president of a bank for tipping off a “fellow golfer with whom he socialized at a local country club” about his employer’s plans to acquire another banking institution. The tippee–charged civilly by the SEC, but not criminally–allegedly parlayed the inside information into a $300,000 profit.

For those who view the government’s golf-related actions as aberrations, wrong. The official press release issued by the SEC provides as follows:

“Country clubs or similar venues may give people a false sense of security that leads them to think they can get away with trading on unlawful stock tips,” said Paul G. Levenson, director of the SEC’s Boston Regional Office. “But as in any social setting, people who trade securities based on confidential information they receive are taking a huge risk that their illegal tipping and trading will be identified by the SEC.”

Those who always had an urge to read an SEC insider trading complaint now have their opportunity to do so.

Thanks to Bob Carlson, lawschool friend and author of the Retirement Watch financial newsletter, for alerting me to this hot-off-the-press item.

By: Rob Harris

On August 3, Roger Lee Harris (no relation!) and Bryan Louis Bandes were charged with various counts of assault, following a fight that occurred on the Springdale (Pennsylvania) Golf Club course, having “become embroiled in a heated debate over the rules of golf, specifically regarding water.”

With a golf club allegedly used as a weapon by one of the combatants, it is with complete accuracy and only a small dose of iron-y that I report the case was assigned to Judge Robert Breakiron. With the golfers reportedly refusing to testify against each other (and apparently unwilling to call a violation on themselves), Judge Breakiron determined that a dismissal of all charges was in order.

According to published reports, His Honor left them with a message: “Learn how to conduct yourselves on a golf course. I don’t want you to be back again in this courtroom or I’m going to assess you two penalty strokes.”

By: Rob Harris

Here’s an article that describes what must be Nike’s joy / relief in watching Rory McIlroy surge to professional golf prominence.

Of course, as my golf buddy Ashish Deshpande has been known to say, “every silver lining has a cloud.”

Let’s not forget the lawsuits brought by McIlroy’s former sponsor, Oakley, against Rory and Nike. Oakley claimed that Rory, with the unlawful encouragement of Nike, breached contractual provisions that would have permitted Oakley to retain its relationship. Rory settled his lawsuit (the terms of which are confidential), and soon thereafter a court ruled in favor of Nike.

Meanwhile, McIlroy’s litigation with his former manager continuesHis recent successes may result in upward calculations by expert witnesses as to the damages suffered by the manager.

Enjoy it again and again and again.

By: Rob Harris

A Texas court recently issued a decision that may be of interest to those holding memberships in financially shaky clubs.

As the court explained, the owner of Golf Club at Castle Hills “entered into contracts with appellants that granted appellants lifetime memberships at the golf club, which included free greens fees and other golf-related benefits.”

After several years of financial difficulties, an entity known as Castle Hills Golf Course Company obtained through foreclosure the right to operate the golf course. The new operator refused to honor the lifetime golf contracts.

The members, upset, seized upon language in the membership agreements that provided as follows: “In the event of a transfer of ownership of the [Golf Club at Castle Hills], the membership may continue under the new ownership or may be terminated with a prorated refund to the Applicant as follows: up to ten (10) years 100% and after ten (10) years, 50% of the Lifetime Fee will be refunded.”

With eight years having passed since the golfers had been granted their lifetime membership agreements, they sued for refunds in accordance with their agreements.

The court, however, rejected the members’ claims. According to the court, absent evidence of ratification of the agreements, the foreclosure proceeding served to provide the new operator with the ability to proceed, unencumbered by contractual obligations provided to the lifetime members by the predecessor entity.

 


By: Rob Harris

Those headed this weekend for a round of golf at TimberStone are cautioned to check their GPS to make sure they are headed to the right place, and aren’t upset with the greens fees or the qualifications of the golf professionals.

The owners of TimberStone Golf Course in Iron Mountain, Michigan have filed a federal lawsuit against the owners of TimberStone Golf Course in Caldwell, Idaho–some 1700 miles away–claiming the latter has committed myriad violations of law that effectively usurp the rights of Michigan’s TimberStone to its name and identity. Plaintiff claims that the Idaho course is diluting the brand of the award winning Michigan course by offering a name-confusing product whose greens fees are less and caliber of instruction is inferior.

For its part, the Idaho owner asserts that the name of its course tracks the name of it’s director’s landscaping business.

 

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