By Don Farr and Ryan Rodenberg
Professional athletes that participate in team sports frequently rely on their unions, their representatives, and their association’s collective bargaining agreements to regulate employment issues. In contrast, athletes who participate in individual sports must negotiate their own contracts or agree to the terms of their sport’s governing body’s policies and procedures as written in its rules and regulations. When a substantive dispute occurs between the athlete in an individual sport and his or her association, it will often take a court decision to clarify how the contract between the two parties should be interpreted. On July 28, 2010 Australian-born golfer Terry Pilkadaris and four other Asian Tour members filed a lawsuit in the Singapore High Court asking for an injunction preventing the tour from banning them from future golf events until the case could be decided.
Pilkadaris and the other plaintiffs were members of the Asian Tour Limited, a player-represented association, which originated in 2004 by golf professionals in Asia for the purpose of maintaining operating control over the group’s playing venues. The tour’s initial schedule included 22 events in 2004 and grew to a high of 30 events in 2008, including sites hosted in Malaysia, India, Thailand, Singapore, Chinese Taipei, and joint sanctioned events in Switzerland, Japan, and the United States. In 2009, a new tour based in Asia came onto the scene supported by the PGA of Australia, China Golf Association and two Korean golf tours. This new competitor, the OneAsia Tour, hosted five events in 2009 and doubled its event total the following year. Out of concern for the continued growth of the Asian Tour, the tour’s commissioner unilaterally wrote into the policies that no member of the Asian Tour could play in events sanctioned by rival tours if such events coincided with its own tournaments. The members of the tour stipulated to the new rule and were all aware of the penalties should they breach the agreement.
In 2010, Pilkadaris and the other plaintiffs opted to bypass playing in a sanctioned Asian Tour event to play in a non-sanctioned event operated by its primary rival, OneAsia Tour. The Asian Tour immediately fined the five players $5,000 (USD) each for every non-sanctioned event they played in and suspended them from participating in future tournaments until their fines were paid in full. Pilkadaris and the four other golfers promptly sued. They asked for an injunction that would allow them to play in future events, claiming the restrictions amount to an “unreasonable restraint of trade.” The plaintiffs contended that they had paid their membership dues and should be allowed to earn prize money and accompanying ranking points until the case was definitively decided in court.
The Asian Tour has a policy included in its handbook that provides protection for itself against rival tours by requiring all members to get written approval before they can play in a competing event. However, the same tour that disallows its members from participating in OneAsia events selectively encourages its players to play in other tour events around the world. Even Terry Pilkadaris played in the 2007 and 2009 Open Championships held in the United Kingdom and the 2010 United States Open. The same event that Pilkadaris and the other plaintiffs were forbidden to play in, and was the basis of their suspensions, was approved for Asian Tour members who were co-members of the European Tour and for those members who were from mainland China. The Asian Tour manages the events its membership is permitted to play in by restricting their participation on certain tours. The PGA of America and the OneAsia Tour require their members to play in a minimum amount of tournaments but do permit them to play in other competing tour events. All PGA Tour members must play in a minimum of 12 sanctioned tournaments, depending on the number of cuts they made previously, and all OneAsia Tour players must play in a minimum of four approved tournaments.
In an October 6, 2010 ruling, an appeals court in Singapore upheld a lower court decision denying the plaintiff’s injunction request, although the spectre of a full-blown lawsuit remains a possibility. Should the defendant ultimately win this case and be permitted to restrict the abilities of its members to pursue alternative avenues for earning income, it could pave the way for having two distinct tours in the same geographical area. This could cause uncertainty in the marketplace, increasing the supply of venues but not being able to support these venues with significant sponsor dollars. A reduction of sponsor dollars would result in a decrease in the purses and could cause marquee players of both the Asian Tour and OneAsia Tour to consider playing in the United States or in Europe, diminishing the membership base of both tours and possibly hindering the growth of golf on the continent. More likely, only one of the tours would prosper causing the weaker of the tours to become extinct or be absorbed by the other association.
If the case continues and plaintiffs were to prevail, it could undermine the value of a written agreement and set precedent for other golfers to renege on parts of their agreements. If tours cannot enforce their policies, procedures, and by-laws, which were agreed upon by all its members, it may be the prelude to the demise of their existence. The leaders of these associations believe they should have the right to implement policies that will ensure the long-term success of their organizations and protect the initiatives and privileges of their membership. The implications of such an outcome could transmit much farther than the golfing community, and extend to other independent contractor sports such as tennis.
Don Farr is the director of the PGA Golf Management Program at Florida State University.
Ryan Rodenberg is an assistant professor of sports law analytics at Florida State University.
