The relationship between Donald Trump the politician and Donald Trump the businessman has become a focal point in American culture over the last two years. As USA Today's Christine Brennan reported earlier this week, this relationship nearly sparked a high-profile legal controversy in the golf world back in 2015. U.S. Golf Association executive director Mike Davis recently revealed to his organization’s executive committee that then-presidential candidate Trump threated to file a lawsuit against the USGA in 2015. The lawsuit would have centered on the USGA’s contemplated relocation of the 2017 U.S. Women's Open from Trump National Golf Club in Bedminster, N.J., to another venue.
The USGA explored this possibility in response to controversial remarks made by Trump about different groups of people, including women and minorities. Some of those remarks were found in Trump’s June 2015 speech at Trump Towers in which the real estate mogul declared his candidacy for President of the United States. "When Mexico sends its people," Trump said at the time, "they're not sending their best. They're not sending you. They're not sending you. They're sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They're bringing crime. They’re rapists. And some, I assume, are good people."
Would Trump have really sued the USGA?
President Trump is no stranger to litigation. While it is commonplace for the sitting President, as leader of the federal government's executive branch, to be named in various lawsuits, candidate Trump possessed an uncommonly extensive history as a litigant. In fact, in June 2016, Nick Penzenstadler and Susan Page of USA Today found that Trump and his businesses had been "involved in at least 3,500 legal actions in federal and state courts during the past three decades."
It's unclear whether Trump would have actually sued the USGA had the USGA authorized relocation. Trump's political advisors might have discouraged Trump from filing a lawsuit in the middle of a presidential campaign. Still, Trump was an unconventional candidate, and one clearly unafraid of high profile disputes. Further, Trump's extensive legal history suggests that him filing a lawsuit was completely plausible. Perhaps most revealingly, Davis, the USGA executive director, concluded that Trump was poised to sue. "We can't get out of this," Davis is quoted as telling a anonymous source in Brenna’s article, "He's going to sue us."
Understanding Trump's possible legal claims
If Trump had sued the USGA, the most likely claim would have been breach of contract. Namely, Trump would have argued that the USGA had violated its contractual obligation to permit Trump National to host the 2017 Wome'’s Open. It is also possible that Trump would have sued on additional grounds, such as for deceptive trade practices under New Jersey law. In such a claim, Trump would have insisted that the USGA falsely advertised itself to Trump and his business.
Trump would have likely sought two types of remedies: (1) a court-ordered injunction to prevent the USGA from relocating the tournament and (2) monetary damages in the event the relocation occurred.
So would Trump have beaten the USGA in court?
One key hurdle in trying to answer that question is the unavailability of the contract between the USGA and Trump and/or Trump National Golf Club. The USGA is a 501(c)(3) nonprofit organization and Trump National is a private business reportedly managed by Trump's 33-year-old son, Eric. While Donald Trump has been a public official since he was inaugurated as the 45th President on Jan. 20, 2017, that fact is irrelevant here: Trump was a private citizen when he and his agents negotiated a contract with the USGA. Therefore, business contracts previously entered into by Trump remain private. As a result, the contract for Trump National to host the 2017 Women's Open is a confidential document and thus not subject to a public records request.
The USGA, however, has entered into contracts with public entities to host other championship tournaments. For instance, in 2014, the USGA and the City of San Diego reached a deal for the 2021 U.S. Open to be played at the municipally owned Torrey Pines Golf Course; the USGA will pay the city $2.5 million for the privilege. GOLF.com has reviewed the contract. While similarities and differences between contracts signed by the USGA with Trump and with the City of San Diego are unknown, it stands to reason that the two contracts bear some degree of a resemblance. After all, they both concern hosting USGA championships and businesses tend to use similar contracts for similar purposes.
To the extent the USGA's contract with the City of San Diego is similar to the USGA's contract with Trump, Trump would have likely prevailed in a breach of contract claim. The USGA-San Diego contract does not expressly provide language that would authorize the USGA to terminate the contract on account of controversial statements. While many would argue that some of Trump's statements were insulting and derogatory, they were nonetheless lawful under the First Amendment.
Along those lines, a venue contract is different from an endorsement contract. If Trump's contract with the USGA concerned his endorsement of the USGA, the contract would likely contain a "morals clause." Such a clause would enable the USGA to terminate the contract on grounds that Trump's public remarks harmed his brand and, by extension, the USGA's brand. A venue contract is very different. It does not contain a morals clause and is instead focused on the mechanics and related responsibilities of hosting an event.
That said, the USGA-San Diego provides that the city "represents it has a sound understanding of the level of professionalism, decorum, courtesy and respect required by the Association in connection with the Championship and the treatment of the public at the Championship." Assuming the same language exists in the USGA-Trump contract, it is possible that the USGA could have argued that Trump's remarks failed to exhibit the requisite level of professionalism, decorum, courtesy and respect. Then again, Trump might have insisted, many people agree with his viewpoints, as evidenced by his political success. Plus, even if Trump's statements failed to show a requisite professionalism, the USGA-San Diego contract doesn't express that the accompanying penalty is to transform a mutually binding contract into a contract that is voidable at the discretion of the USGA.
Before Trump could have sued, he may have been obligated to participate in non-binding mediation. The USGA-San Diego contract contains a dispute resolution clause that requires both parties mediate their dispute in front of a "neutral professional mediator." This step is mandatory before either party has "recourse in a court of law." In mediation, the mediator would have proposed a resolution to the USGA and Trump. Only if one or both sides disagreed with the mediator's proposal would Trump have been able to proceed with a lawsuit. Interestingly, the USGA-San Diego contract requires both sides to waive away their right to a jury trial—meaning if Trump went to court, he might have been required to accept a judge's decision on both questions of facts and law. As we know, Trump has not always seen eye-to-eye with judges.
The lawsuit, of course, was never filed. The USGA backed down to Trump and, a year later, he won the presidential election. Fast forward to this week. The U.S. Women's Open at Trump National began Thursday and will conclude Sunday. The question has become not whether Trump will sue but whether he will show up.
Michael McCann is Sports Illustrated and GOLF’s legal analyst and the associate dean for academic affairs at the University of New Hampshire School of Law.