By Rob Harris
The United States District Court 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 eight.
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 the 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 aspects 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. T-shirts, 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 to 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 is not 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.
Harris is an attorney and founder of http://www.golfdisputeresolution.com/. He can be reached at rharris@golfdisputeresolution.com
