Legal implications of the proposed ban on anchored putting
In October, Keegan Bradley made it clear that he wouldn't take a ban on belly putters lying down.
"I'm going to do whatever I have to do to protect myself and the other players on Tour," Bradley told Golfweek. The comment was widely interpreted to mean Bradley would take legal action if anchored putting methods were outlawed, and Ernie Els echoed the sentiment, saying that the R&A and the USGA would have "legal matters coming their way."
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It turns out that Bradley may not have been hinting at planned legal action, but his comments still raise an interesting question: What legal recourse do professional golfers have to fight the ban on "anchored" putting?
"I would discourage him from filing a lawsuit because I do not think it would succeed," McCann said on Tuesday.
Golfers, McCann explained, are not like football players and basketball players, who sign a contract with a team and join a league that operates through a collective bargaining agreement. Professional golfers are independent contractors, not members of a union. And even if they were PGA Tour employees, this rule change is coming from the USGA and the R&A, not the Tour. No contract is being altered or amended, so it would be hard for the players to legally challenge the change.
McCann says a player could file an antitrust suit against the PGA Tour or the USGA, but it would probably be ineffective.
"The claim would be that terms of his employment have been affected by a change of rules," McCann says. "And as a result [the USGA and R&A] have made it less competitive for certain golfers, namely golfers who need to use this type of putter, to succeed. The market for golfers would be made less competitive because some of them are no longer going to be able to compete."
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But McCann quickly adds that it's an unpersuasive argument. The USGA and the R&A would argue that they have decisive rule-making authority. They would also contend that it's reasonable for them to alter the rules, and the PGA Tour would argue that it's reasonable to abide by those rules.
"Courts give leagues a tremendous amount of latitude in rules of play" he says. "It's one thing to say there is a new restriction on free agency and that it's not collectively bargained, or there is a salary cap change; it's another to change the rules of play. Courts are pretty deferential, and I think any type of lawsuit would be unlikely to prevail."
McCann pointed out, however, that in the early 1990s, a group of golfers led by Bob Gilder joined Ping and won a favorable settlement from the USGA and the PGA Tour after Ping Eye 2 irons were banned. That club's square grooves had been ruled to have a performance-enhancing effect, but the players rebutted that argument by citing data that showed golfers using the club earned less than those who did not use it. The case ended in a settlement that allowed the club but required different grooves in future models.
That precedent may seem to favor a player inclined to sue, but McCann cautions that the player would have to show statistics that indicated that belly putters were not providing an unfair advantage.
McCann also thinks it would be a bad idea for a player like Fred Couples, who uses a belly putter because it puts less stress on his chronically bad back, to sue for the right to continue using the club.
When Casey Martin sued the PGA Tour to get the right to use a cart in competition, he sued under the Americans with Disabilities Act. "That law protects folks who have a recognized disability and are not provided with reasonable accommodation by an employer, or in this case a sports entity," McCann says. "That area of law would not be in play here."
What about putter manufacturers? The ban will not be good for them, and some might consider legal action.
"Manufacturers might argue that the market for clubs is being made less competitive, and [the rule change] stifles innovation," says McCann.
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He says that companies who have filed suits like that in the past have often lost. About 20 years ago, for instance, makers of a banned golf shoe that helped golfers balance their swings sued the USGA. A federal court said the USGA had the legal right to decide the types of equipment necessary for fair competition. On the other hand, Ping's partial success could give hope to long putter manufacturers. Still, McCann cautions, a total victory would be unlikely.
Ironically, being independent contractors who make their own schedules, sign their own endorsement deals and act in their own self interest may be hurting golfers in this instance. McCann says that a union might have the power to bring legal action to stop the PGA Tour from adopting the USGA's rules, or to fight the USGA itself over the changes, but individual players would have little leverage.
"A union would have protected Keegan Bradley and other golfers whose game is going to be interfered with by this rule change," McCann says. "If the NFL wants to implement a new safety rule about hitting the quarterback, that change will be made in consultation with the NFL Players Association. Here, we see the lack of a union leading to the USGA seeming to have the capacity to unilaterally change the rules. "Not having a union limits the ability of Keegan Bradley and other golfers to use labor laws."