By Amy Sargeant and Ryan M. Rodenberg
In November 2012, The United States Golf Association (USGA) proposed changes to the rules of golf that would ban the use of so-called “belly putters.” The proposed rule change cannot take effect until 2016 as there is a four year cycle for any amendments to the rules. The possibility of a rule change was attention-grabbing. The issue raised with such clubs is that long putters allow players to “anchor” the club to their chest or belly, which acts as a base for a pendulum motion. The USGA issued a three-month comment period about the proposed ban. A final decision is yet to be made. However, the PGA Tour recently announced that it is opposed to the rule change. In the wake of the proposed ban, a number of media outlets interviewed potentially affected players. During such interviews, the spectre of litigation challenging the future ban was raised. The purpose of this short article is to highlight a precedential case from the sport of tennis that will likely be implicated if/when a lawsuit challenging the belly putter ban is filed. The case is Gunter Harz vs. United States Tennis Association (USTA), 665 F.2d 222 (1981).
Facts of the Case
Decades ago, Germany-based plaintiff Gunter Harz was in business of manufacturing and distributing tennis rackets, strings, and stringing machines. Inventor Werner Fischer introduced the “double strung” racket, which was made to give additional spin on the ball. Between July and October 1977, the International Tennis Federation (ITF) received numerous complaints about the double strung rackets, including strange tournament results where several top-ranked professionals were upset by lower-ranked players using the rackets. The ITF issued a temporary ban on the double strung racket so they could gather information on the effects of the racket in match play. Defendant USTA is a non-profit private organization and a member of the ITF that adopted their rules.
Before the temporary ban, Fischer gave all of his rights to Gunter Harz, who began to improve and develop a modification of Fischer’s double strung racket and re-named it “Play Spaghetti.” The ITF implemented a new rule pertaining to the definition of a tennis racket that would take effect in July 1978. Following the new rule, the ITF asked Gunter Harz to send samples of the Play Spaghetti product so it could be tested before approval. Gunter Harz opted against sending any samples, electing instead to file suit December 1979 on antitrust grounds under the Sherman Act. The District Court ruled that the USTA is subject to the Sherman Act, but following a trial on the merits, found no antitrust violation. Gunter Harz appealed.
Appellate Decision
The plaintiff claimed that the USTA rule should not apply. Gunter Harz characterized the actions of the USTA as constituting a group boycott of double-strung tennis rackets and restricting competition in the manufacture and distribution of tennis rackets and tennis strings in violation of Section 1 of the Sherman Act, which states “every contract, combination or conspiracy in restraint of trade or commerce among the several states or with foreign nations is declared to be illegal.”
The Eighth Circuit Court of Appeals concluded that the defendant’s actions did not constitute a violation of Section 1 of the Sherman Act. The court found that the USTA legitimately functions as a private, nonprofit regulating body to ensure that competitive tennis is conducted in an orderly fashion and to preserve the essential character of the of the game as well as organized competition. The USTA argued that its procedure allowed for consideration of new racket technology, provided that it didn’t alter the character of the game in a significant way.
The appellate court concluded that Gunter Harz failed to provide sufficient evidence and research proving that his Play Spaghetti racket had no extra benefits or changed the character of the game. The court was convinced that the double strung racket offered considerably more spin than a conventional racket. The court alluded to Gunter Harz’s failed effort to provide the ITF and USTA with samples of the rackets over the course of a 24 month period.
Implications
The Gunter Harz v. USTA antitrust case confirmed the general right of sports leagues to regulate playing rules. Specific to the ongoing controversy over the ability of golfers to use anchored clubs, the case is of precedential value. So long as the USGA is not in the business of golf club production or has strong pecuniary interests intertwined with certain non-anchored golf club manufacturers, the antitrust analysis in Gunter Harz v. USTA indicates that a plaintiff golf club manufacturer (or affected player) would have difficulty challenging the USGA’s right to set standards regarding permissible playing equipment. More specifically, the USGA would likely posit that its role as a governing body charged with preserving the integrity of the game is consistent with the banishment of certain “belly putter” golf clubs anchored to one’s body.
Amy Sargeant is an undergraduate student at Florida State University and a member of the school’s women’s tennis team. Ryan M. Rodenberg is an assistant professor sports law analytics at Florida State University. The prefix of this article’s title derives from an album by the rock band Guns n’ Roses.
