Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: At ninety six years old, Judge Pauline Newman is the
Speaker 2: oldest federal judge in the country. Newman is set on
Speaker 2: the Federal Circuit Court of Appeals for almost forty years,
Speaker 2: and she refuses to retire or even take senior status.
Speaker 1: I thought, what what will I do now? I don't
Speaker 1: want to be a litigator. I don't want to be
Speaker 1: a mediator. I'd rather decide rather than mediate, as many
Speaker 1: judges do. If I had a family by that time,
Speaker 1: I would have had who knows great grandchildren, I suppose,
Speaker 1: but I didn't.
Speaker 3: Take that path. I don't know why, but I didn't.
Speaker 2: Federal judges have lifetime appointments. But the Chief Judge of
Speaker 2: the Federal Circuit started an investigation into Newman's fitness to
Speaker 2: remain an active judge in March, and filing alleged that
Speaker 2: Newman has shown significant mental deterioration since suffering a heart
Speaker 2: attack in twenty twenty one and can no longer do
Speaker 2: the job. It's become a very nasty and personal dispute,
Speaker 2: and Newman has fought back by suing her colleagues accusing
Speaker 2: them of violating the Constitution. Newman is known for her descents,
Speaker 2: having written more than three hundred in her career, and
Speaker 2: she believes that's why her colleagues are trying to get
Speaker 2: rid of her.
Speaker 3: It may sound ponderous, but I think the nation needs
Speaker 3: my voice.
Speaker 1: I think that if the judges on this court are
Speaker 1: willing and more than willing to push me out in
Speaker 1: order to get me out of the way so that
Speaker 1: no one says that they've made a mistake, that I need.
Speaker 3: To be here to countermand.
Speaker 2: That me as Bloomberg Law senior reporter Kelsey Griffiths, who
Speaker 2: interviewed her, how did this become a nasty battle to
Speaker 2: get Newman to retire?
Speaker 4: So this started about four months ago or so. It
Speaker 4: began with the chief judge sitting Newman down and saying, luck,
Speaker 4: we think it's time for you to retire. You should
Speaker 4: consider taking senior status. And then basically Judge Newman refused
Speaker 4: to go quietly, as she says in her own words,
Speaker 4: and that's when things got complicated. Typically, judicial retirement decisions
Speaker 4: are something that are taking care of behind closed doors,
Speaker 4: and to my knowledge, we've never seen a fight like
Speaker 4: this at least in current memory, where a judge is
Speaker 4: being encouraged to retire even though she has a lifetime appointment,
Speaker 4: and if she feels like she's not ready to go,
Speaker 4: there's not a lot her colleagues can do except started
Speaker 4: the process that Chief Judge Moore started. So under this process,
Speaker 4: Chief Judge Moore launched additional Council investigation into Judge Newman's
Speaker 4: fitness to remain on the bench, and that investigation is ongoing,
Speaker 4: and there.
Speaker 2: Were attempts to get her to retire without any fanfare.
Speaker 2: Tell us about the visit by her fellow Judge Alan Lourie.
Speaker 4: So, Judge Lourie visited his neighbor Polly Newman in her
Speaker 4: Watergate apartment building. They live in neighboring towers in March.
Speaker 4: He had allegedly been dispatched by the Chief Judge of
Speaker 4: the Federal Circuit to deliver a message. And it hasn't
Speaker 4: been confirmed that the Chief Judge sent him on this errand,
Speaker 4: but we do know that he later reported the contents
Speaker 4: of this conversation that he has with his ninety six
Speaker 4: year old neighboring colleague, because it shows up and the
Speaker 4: Chief Judge's reports later So Judge Laurie comes to Judge
Speaker 4: Newman's house, they walk inside, they sit on her sofa,
Speaker 4: and he tells her, you need to retire. Retire now,
Speaker 4: and Davy reputation, savior, legacy kind of go out on top.
Speaker 4: And now this was a directive that the Chief Judge
Speaker 4: had delivered a couple days before in a meeting with
Speaker 4: two other judges, and they were trying to convince her
Speaker 4: to retire. So I think the thinking behind this is
Speaker 4: that Judge Lourie is someone who Newman knows socially as
Speaker 4: well as professionally, and it might be a little more
Speaker 4: well received coming from him.
Speaker 2: That obviously didn't work. In your stories, you've written about
Speaker 2: some of the evidence that the Chief Judge has about
Speaker 2: Newman's fitness.
Speaker 4: So the Chief Judges documents alleged that Judge Newman allegedly
Speaker 4: had a heart attack in the summer of twenty twenty one.
Speaker 4: She allegedly was hospitalized and got heart dent surgery, and
Speaker 4: she also allegedly fainted following an oral argument session at
Speaker 4: the court. All these things are documented in the Chief
Speaker 4: Judges documents that she's released in this probe, and she's
Speaker 4: also interviewed some unnamed court employees and observers who supposedly
Speaker 4: corroborate these things. However, Judge Newman completely rejects these accounts
Speaker 4: and says they're kind of a fishing expedition to pressure
Speaker 4: her to retire and to sort of smear her reputation.
Speaker 4: So without seeing documentation on the other side, it's kind
Speaker 4: of hard to say who's right.
Speaker 2: It seems really odd that you know, she would dispute
Speaker 2: something like fainting on the bench since there were other
Speaker 2: people there who talked about it. And also, isn't it
Speaker 2: easy enough to prove or disprove whether or not she
Speaker 2: had surgery for a standing?
Speaker 4: So I think to a casual observer, it does seem
Speaker 4: like a relatively easy question to answer. For Judge Newman
Speaker 4: at ninety six, someone who's been in the legal profession
Speaker 4: for a really long time, she's looking at this with
Speaker 4: a very critical eye, and she's saying, I'm being to
Speaker 4: prove a negative. That's not something you can make someone
Speaker 4: do in a court case. So she feels like she's
Speaker 4: being put in a really untenable position to offer evidence
Speaker 4: that she doesn't have.
Speaker 2: So you sat down with Judge Newman, how did she
Speaker 2: strike you as far as you know her communication abilities
Speaker 2: and her demeanor.
Speaker 4: So I visited Judge Newman's chambers Friday, June twenty third.
Speaker 4: I sat down with her for a little over an hour,
Speaker 4: and she struck me as remarkably lucid. I think she
Speaker 4: seemed very well put together. She was walking around her
Speaker 4: office and shuffling large binders, pulling out chairs and that
Speaker 4: sort of thing without any assistance, and she didn't hesitate
Speaker 4: to answer any of my legal questions that were actually
Speaker 4: in quite complicated topics with a level of clarity that
Speaker 4: you know I frequently encounter in big law partners or
Speaker 4: people who are at the top of their field.
Speaker 2: And yet there are accusations in the committee documents that
Speaker 2: she had bizarre and nonsensical conversations at times.
Speaker 4: So I think some of the most shocking allegations in
Speaker 4: the Chief Judges documents are related to certain conversations around
Speaker 4: a employment dispute with someone in Judge Moore's chambers who
Speaker 4: eventually left for another part of the court, and an
Speaker 4: incident involving some IT staffers who are trying to teach
Speaker 4: her how to make her own financial disclosures. After that
Speaker 4: employee left, My assessment of those two events and how
Speaker 4: they kind of played together is that Judge Newman felt
Speaker 4: like she was backed into a corner. She didn't have
Speaker 4: the resources that she typically had to deal with routine
Speaker 4: things like filing financial disclosures, and at the time she
Speaker 4: didn't have the secretary's computer that is typically available to
Speaker 4: her and to the staffers who know how to operate it.
Speaker 4: So I think she felt, like I said, cornered, and
Speaker 4: like she was being forced to complete a job that
Speaker 4: is not typically hers to complete, and with resources that
Speaker 4: she felt she was lacking. So I think that led
Speaker 4: to these sort of explosive exchanges that are outlined and
Speaker 4: the Chief Judges documents about the bizarre, nonsensical and paranoid conversation. Now,
Speaker 4: to be fair, Judge Newman doesn't dispute that does dust
Speaker 4: up with it happened? She said that harsh words were
Speaker 4: exchanged because she was very flustered and very angry about
Speaker 4: the situation.
Speaker 2: She is ninety six, she's been on the bench for
Speaker 2: forty years. She can retire with senior status and still
Speaker 2: here cases get full salary. Why is she resisting taking
Speaker 2: senior status? Did she explain that's.
Speaker 4: Something I asked her about and she said simply that
Speaker 4: the chief judge is the one who controls the caseload
Speaker 4: once a judge takes senior status. So she's afraid that
Speaker 4: if she retires, she will completely give up her ability
Speaker 4: to have any level of activity on the court. She
Speaker 4: believes that the chief judge would simply refuse to give
Speaker 4: her cases.
Speaker 2: The bigger question is why doesn't she want to retire
Speaker 2: at the age of ninety six.
Speaker 4: Right, That's something I asked her about too. She told
Speaker 4: me that she has dedicated her life to the law,
Speaker 4: particularly to patent law, and she chose not to have
Speaker 4: a family. She themed at me and then laughed when
Speaker 4: I suggested that maybe she has hobbies that she would
Speaker 4: like to pursue. You know, is there anything outside of
Speaker 4: her life at the court that she would like to
Speaker 4: make time for? And she said, no, this is my
Speaker 4: life and this is what I've dedicated my life to,
Speaker 4: and so I want to stay here as long as
Speaker 4: I possibly can.
Speaker 2: She even refused to cooperate with the investigation. You know,
Speaker 2: she says that she's fit. Why didn't she cooperate with
Speaker 2: the investigation?
Speaker 4: That was another as that was really puzzling, as well,
Speaker 4: and her answer is that, on one hand, she feels
Speaker 4: like the Chief Judge was sort of stacking the cards
Speaker 4: against her. She felt that even if she proved that
Speaker 4: she didn't have a heart attack or he's alected health issues,
Speaker 4: that the Chief Judge would never be satisfied until she
Speaker 4: had effectively sidelined Newman. As I wrote in the story,
Speaker 4: Newman is a prolific dissenter on the court, and she
Speaker 4: told me that she believed her colleagues, including and primarily
Speaker 4: Chief Judge More, are just tired of dealing with that
Speaker 4: level of scrutiny.
Speaker 2: The investigation has morphed from one into her fitness to
Speaker 2: be an active judge to something else. What does it
Speaker 2: turned to?
Speaker 4: That's right, So, initially the probe was focused on trying
Speaker 4: to prove certain details related to Judge Newman's health. Now
Speaker 4: that Judge Newman has repeatedly refused to offer the details
Speaker 4: that they've asked for, they've simply backed up the investigation,
Speaker 4: now focusing on the question of whether Judge Newman had
Speaker 4: a good reason to not offer up those details in
Speaker 4: the first place. If she is found to have obstructed
Speaker 4: the investigation, then that could be cause for a finding
Speaker 4: of misconduct. It's also worth noting that the committee investigating
Speaker 4: Moore's fitness is comprised of her colleagues, so that's something
Speaker 4: that Judge Newman has asked to change. She wants another
Speaker 4: judicial counsel in another circuit to evaluate this with fresh eyes.
Speaker 2: So she sued in DC Federal Court. Who did she
Speaker 2: sue and where does that fit in with the committee's investigation.
Speaker 4: Judge Newman sued Chief Judge Moore, who is heading up
Speaker 4: the investigation into her fitness. Judged Richard Toronto and Judge
Speaker 4: Sharon Pros those are the other two judges that are
Speaker 4: on the three judge committee investigating her fitness. The lawsuits
Speaker 4: is really Judging new Woman's attempt to strike back at
Speaker 4: these colleagues that she feels are forcing her into untenable positions,
Speaker 4: and she's trying to get more eyes on this internal dispute.
Speaker 4: She's repeatedly asked for the documents in this closed door
Speaker 4: probe to be made public, and she's also asked Chief
Speaker 4: Justice Roberts at the Supreme Court to take notice of
Speaker 4: this dispute and transfer it to another circuit's judicial council.
Speaker 2: This is certainly drawing attention to lifetime appointments for federal
Speaker 2: judges and the consequences. And there are nineteen full time
Speaker 2: federal judges who are eighty or older.
Speaker 4: That's right. I think Judge Newman's story is a really
Speaker 4: great example of a conflict that we haven't seen before.
Speaker 4: We rarely see where a judge chooses not to go
Speaker 4: quietly and not to end their ten of their own accords.
Speaker 4: So I think this could potentially tee up other fights
Speaker 4: where other judges, in our aging judiciary decide they also
Speaker 4: don't want to go quietly.
Speaker 2: I mean, she is a formidable woman. She was a
Speaker 2: former chemical scientist and the first direct appointee to the
Speaker 2: nation's top patent court.
Speaker 4: That's right. She's also a pilot and a one time
Speaker 4: race car driver, so Judge Newman has had a lot
Speaker 4: of life experience. She was also a bartender in France
Speaker 4: for a while, so I think she has added patent
Speaker 4: judge as her crowning achievement and she is not going
Speaker 4: to let go of that easily.
Speaker 2: And up until now, she's had a sterling reputation as
Speaker 2: a patent judge.
Speaker 4: Judge Newman is known in the patent bar for being
Speaker 4: one of the founders of the modern day patent system.
Speaker 4: She was the Federal Circuit's first direct appointee when the
Speaker 4: Court in its modern iteration was created during President Reagan's term.
Speaker 4: So I think, you know, she's kind of been here
Speaker 4: from the beginning, and it's really sad for a lot
Speaker 4: of folks in the space to fear her story kind
Speaker 4: of take this turn.
Speaker 2: Thanks so much, Kelsey. It's wonderful that you could sit
Speaker 2: down and talk with her and get her side of
Speaker 2: the story. That's Bloomberg Lass Senior reporter Kelsey Griffiths. The
Speaker 2: controversy over the announced merger of the PGA Tour with
Speaker 2: Saudi owned Live Golf moves to the Senate next week
Speaker 2: as two PGA Tour officials testify. The title of the
Speaker 2: hearing says it all quote the PGA Live deal implications
Speaker 2: for the future of golf and Saudi Arabia's influence in
Speaker 2: the United States. Lawmakers have demanded investigations into the deal,
Speaker 2: citing potential antitrust concerns, as well as accusations of human
Speaker 2: rights abuses in Saudi Arabia. Others have echoed the families
Speaker 2: of the victims of the September eleventh terrorist attacks who've
Speaker 2: long said that Saudi Arabia has fed to fully answer
Speaker 2: questions on any role it might have played. Joining me
Speaker 2: is Martini Dell, co chair of the Sports law practice
Speaker 2: at Gulston and Stores. So there was a disclosure of
Speaker 2: about five pages long of a framework agreement between the
Speaker 2: PGA Tour, the Saudi Public Investment Fund and the dp
Speaker 2: World Tour. I mean, what does it tell us? What
Speaker 2: does it disclose?
Speaker 5: So it discloses a framework from thirty thousand feet up
Speaker 5: which has very few details. If you want to learn
Speaker 5: more of the details, then the thing to do is
Speaker 5: to see what the PGA submitted to the Senate and
Speaker 5: in particular the Senator Bloomenthal, who is conducting an investigation
Speaker 5: I think starting next week on July eleventh. And that
Speaker 5: tells us a little bit more about the details, but
Speaker 5: still not a lot, because they're trying to keep the
Speaker 5: details somewhat lose so they can go with the flow,
Speaker 5: if you will, and maybe try to avoid any antitrust consequences.
Speaker 2: But does it tell us about the leadership structure.
Speaker 5: What it says is that the PGA chief will continue
Speaker 5: to be the head of the new combined group, but
Speaker 5: the chairman of the PIF will also have the leadership
Speaker 5: function as chair of the new entity.
Speaker 2: The big thing that we heard about is that, you know,
Speaker 2: the Saudi Fund is going to invest a ton of
Speaker 2: money into golf into this organization. Are there any parameters
Speaker 2: for how much it's going to invest.
Speaker 5: Not according to that five page summary, it's just going
Speaker 5: to be an investment by the Saudi Investment Fund. Not
Speaker 5: clear if there are any bounds on it. Not clear
Speaker 5: what limitations Saudis will put on the investment. Not clear
Speaker 5: what limitations the PGA would want to put on the investment,
Speaker 5: assuming of course that it's all not challenged by either
Speaker 5: the US regular or the EC regulators. Because remember there's
Speaker 5: also the European Tour which is getting thrown into the
Speaker 5: mix here as well.
Speaker 2: It seems like it leaves out more than it puts in.
Speaker 2: Why even put out this framework agreement?
Speaker 5: So that's a great question. I think part of the
Speaker 5: answer there is the parties wanted to resolve the litigations
Speaker 5: that were between them at that point. PGA announced it
Speaker 5: was very costly, of course, that's what litigations are. The
Speaker 5: Saudis didn't want the litigation to take discovery of some
Speaker 5: of the investments of the Saudi Investment Fund, the structure
Speaker 5: of the Saudi Investment Fund. They just didn't want public
Speaker 5: disclosure of this. So it is very important for them
Speaker 5: to end the litigation. That is one of the details
Speaker 5: that is made clear in the five page summary. The
Speaker 5: litigation will end and now it has in Aside from that,
Speaker 5: they wanted to discuss a framework for combining the various
Speaker 5: tours in some form. Not clear what form that will be,
Speaker 5: but let's have a form. And that's what's going to
Speaker 5: lead to antitrust problems down the road.
Speaker 2: The Justice Department was looking at professional golf before the
Speaker 2: deal was announced. Does this in many ways appear to
Speaker 2: strengthen antitrust concerns?
Speaker 5: I would think so, you know, if the Justice Department
Speaker 5: says GPGA, we're going to look into you for monopolizing
Speaker 5: the professional golf industry, what would cause the DOJ to
Speaker 5: back away from that now and back I think, as
Speaker 5: you correctly put it, it's hand would be strengthened because
Speaker 5: if you have a putative monopoly in the PGA beforehand,
Speaker 5: now with PGA controlling both the Live Tour and the
Speaker 5: European Tour, it's a greater monopolist with more control over
Speaker 5: the marketplace, the ability to set prices and control output.
Speaker 2: And also Live was suing the pace alleging anti trust violations.
Speaker 2: So a major part of this new entity has said
Speaker 2: there were anti trust violations even before it became a
Speaker 2: larger entity. How do they back away from that? Now?
Speaker 5: Money talks, nobody walks, They don't back off of that.
Speaker 5: I'm sorry to be glib about it, but you know,
Speaker 5: the Live Tour now says, oh, well, you know, what
Speaker 5: we did for litigation purposes doesn't matter now that we're
Speaker 5: in a business relationship. But of course it matters. And
Speaker 5: the questions the justice part will have to look into
Speaker 5: is how will this affect consumers, how will this affect players,
Speaker 5: and how will this affect media contracts out there and others.
Speaker 5: We look at the different constituencies who are likely to
Speaker 5: be affected. If this is a merger of some sort,
Speaker 5: and you know, we don't have to focus on the
Speaker 5: term merger to call it a merger. If there's no
Speaker 5: more competition for the PGA because it's eliminated computative competitors,
Speaker 5: then we have at the facto merger.
Speaker 2: I understand that there are almost no outside bankers or
Speaker 2: lawyers involved in the negotiations up until the five page
Speaker 2: framework agreement, and we had j. Monahan, who is the
Speaker 2: PGA Tour Commissioner, saying that the deal will quote take
Speaker 2: the competitor off of the board, seemingly saying, hey, doj
Speaker 2: there are anti trust concerns here? I mean, do you
Speaker 2: think they would have done better if they had at
Speaker 2: least had some anti trust lawyers there.
Speaker 5: He wouldn't have made so candid a statement. Yes, I
Speaker 5: think he would have done better had he been counseled
Speaker 5: by attorneys on this. I mean, basically, as you notice here, J.
Speaker 5: Monahannis said, hey, look at us. We've gotten rid of
Speaker 5: the competition, which is what anti trust is abound. You know,
Speaker 5: are we getting rid of the competition in order to
Speaker 5: increase prices or reduce output out there? And you know
Speaker 5: there are two overriding antitrust concerns. One is is this
Speaker 5: going to affect professional golf in an adverse way? And
Speaker 5: how will the players be affected? You know, will the
Speaker 5: pots be reduced or will they be kept below market
Speaker 5: size because there's nobody competing for the player's attention anymore.
Speaker 5: There are side issues, of course, such as the PGA
Speaker 5: players who turn down the live bonuses and are now
Speaker 5: ruining that fact now that they're combining with the live tour.
Speaker 5: But that's not an antitrust concern. The anti trust concern
Speaker 5: is how will these players be affected in the long term.
Speaker 5: It's an employment matter. And the second is how will
Speaker 5: fans and the media be affected in the long term.
Speaker 5: We'll receive reduction of output or output at least below
Speaker 5: what the market otherwise would bear.
Speaker 2: The deal could be reviewed, sorry, the deal could be
Speaker 2: reviewed by SYPHIUS, which is the Committee on Foreign Investment
Speaker 2: in the US. It analyzes mergers regarding potential threats to
Speaker 2: the nation's security. I mean, on the surface, it may
Speaker 2: not need to investigate this, but then there are always
Speaker 2: details that it might.
Speaker 5: So I think June that's a really fair point. I mean,
Speaker 5: we're going to have a lot of investigation. Senate Antitrust
Speaker 5: Subcommittee of the Judiciary Committee is going to look into this.
Speaker 5: I believe Senator Bloominghoal is tst scheduled hearings for next
Speaker 5: week on this matter. We can have SIPIUS look at it,
Speaker 5: because now you're having a major country's wealth fund invest
Speaker 5: in a uniquely what was formerly at least the uniquely
Speaker 5: American event, namely the PGA. With the addition of the
Speaker 5: European Tour, we're going to have the European regulators look
Speaker 5: at this as well. You know, how is this going
Speaker 5: to affect the European tour that's now being thrown into
Speaker 5: this PGA Saudi or PIF fund merger. So we have
Speaker 5: different committees looking at it. We have the Justice Department
Speaker 5: looking at it, and maybe we'll have some states attorney
Speaker 5: generals looking at it under the many Sherman Acts in
Speaker 5: various states.
Speaker 2: Marty, I mean, can the Senate do anything really to
Speaker 2: stop this deal?
Speaker 5: The Senate can enact legislation which either can facilitate or
Speaker 5: make this more difficult. So let's go back historically, and
Speaker 5: I'll thank you, back about sixty plus years to the
Speaker 5: merger of the AFL and the NFL to Big Football powers.
Speaker 5: To have that merger go through required a law, and
Speaker 5: we saw that in the Sports Broadcasting Act of nineteen
Speaker 5: sixty five that facilitated the merger because it exempted it
Speaker 5: from antitrust scrutiny. We could have that here. Unlikely given
Speaker 5: the current frame of mind in Congress and the Justice Department,
Speaker 5: that Congress would pass a law to exempt this merger
Speaker 5: from the antitrust laws, but they could also voice their
Speaker 5: concern about it and send that concern to the Justice Department,
Speaker 5: which would create even more pressure on the Justice Department
Speaker 5: to bring a lawsuit to stop the merger from proceeding.
Speaker 2: Some lawmakers have also threatened to strip the tour of
Speaker 2: its tax exempt status. So problematic would that be?
Speaker 5: Ye, well, it could be problematic. You know, a number
Speaker 5: of sports league started off as not for profits to
Speaker 5: gain some tax advantages, and then many of them switched
Speaker 5: to being for profit corporations. I don't know enough about
Speaker 5: the internal workings of the PGA to tell you whether
Speaker 5: loss of the tax exempt status would create a real
Speaker 5: problem or just create a need for restructuring in a
Speaker 5: way that would shelter some income from taxation and not
Speaker 5: other income from taxation.
Speaker 2: So the PGA Tours Policy Boards signaled a new phase
Speaker 2: of negotiations. Management, with input from our player directors, has
Speaker 2: now begun a new phase negotiations to determine if the
Speaker 2: Tour can reach a definitive agreement that is in the
Speaker 2: best interest of our players, fans, sponsors, partners, and the
Speaker 2: game overall. What's happening right now? Do you think it's
Speaker 2: significant negotiations or they're just hammering down details.
Speaker 5: So from what I've seen and heard, I don't see
Speaker 5: anything going on right now. I think everybody's sort of
Speaker 5: in a wait and see mode. I don't think the
Speaker 5: PGA wants to take two precipitous a series of steps
Speaker 5: before they know what Congress will do, and what Congress
Speaker 5: wants to do that is, and what the Justice Department
Speaker 5: will do. The Justice Department has said it's investigating the announcement,
Speaker 5: and I think that will lead to some discussions between
Speaker 5: the PGA and PIF on the one hand, and the
Speaker 5: Justice Department on the other. There might be a path
Speaker 5: to facilitate this merger, maybe not calling it a merger.
Speaker 5: Maybe it'll just be an investment by the Saudiast. Maybe
Speaker 5: the live tour will be spun off. You know, we
Speaker 5: see lots of times mergers that the Justice Department or
Speaker 5: FDC says, you know, will approve it if you get
Speaker 5: rid of certain of your assets that may be one
Speaker 5: of it, or they spin off your PA tour from
Speaker 5: this merger. So there are lots of possibilities out there.
Speaker 5: I don't see anything right now that's coming to the
Speaker 5: fore in terms of these new so called negotiations, because
Speaker 5: I haven't heard of any going forward right now.
Speaker 2: The Policy Board has to approve the deal. Is it
Speaker 2: possible that with the some of the players on the
Speaker 2: Policy Board that there'll be enough opposition to the deal
Speaker 2: or you think the players will fold?
Speaker 5: So, you know, we've seen a little bit of that.
Speaker 5: Rory McElroy, for instance, who is a ardent supporter of
Speaker 5: the PGA action against Live and has now said, well,
Speaker 5: maybe this is a good thing. Maybe it'll pour more
Speaker 5: money into the tour, maybe it will benefit the players more.
Speaker 2: So.
Speaker 5: I don't see that the players are going to be
Speaker 5: an impediment there. The independent members of the Policy Board
Speaker 5: are really those who negotiated this deal with the pif
Speaker 5: they're likely to vote in favor of it. Again, I
Speaker 5: think it's a very loosey goosey arrangement right now, because
Speaker 5: people are waiting to see what the Justice Department says,
Speaker 5: what Congress says, and perhaps what the EC will be
Speaker 5: saying if it weighs in on this as well and
Speaker 5: go to a structure from there. I think it's unlikely
Speaker 5: that this will sort of die on the BUND. I
Speaker 5: think there are different ways in which this can take
Speaker 5: a form and shape that may pass antitrust mustard.
Speaker 2: So, speaking of antitrust, why is the baseball antitrust exemption
Speaker 2: still being litigated in any form?
Speaker 5: So that's a great question, And the reason I'm laughing
Speaker 5: is because it makes no sense whatsoever. But it's encapsuled
Speaker 5: in a trilogy of US Supreme Court cases, the last
Speaker 5: one being Flooded versus Qune in nineteen seventy two. So
Speaker 5: every so often someone comes around with the bright eye,
Speaker 5: bushy tailed idea, let's challenge the baseball exemption because maybe
Speaker 5: with a passage of time, people will see how silly
Speaker 5: it actually is. And I'm sorry for being so direct,
Speaker 5: but it didn't make any sense in nineteen twenty three
Speaker 5: when the Supreme Court announced it, because baseball was involved
Speaker 5: in interstate commerce back then. It is more involved in
Speaker 5: interstate commerce now than it was in nineteen twenty three.
Speaker 5: But that's the antecedent of the baseball exemption. So going
Speaker 5: to your question, what planiffs are looking for is a
Speaker 5: hook maybe we could challenge it in some way. So
Speaker 5: this is minor league baseball saying that maybe its relations
Speaker 5: with Major League Baseball should be outside the scope of
Speaker 5: the antitrust exemption. The district court in the Southern District
Speaker 5: did not see it that way. The Second Circuit did
Speaker 5: not se it that way. It's a stretch by any manner,
Speaker 5: shape or form. The last twenty years of jurist prudence
Speaker 5: shows us that courts have taken a more expansive view
Speaker 5: of baseball exemption, so that it affects almost any aspect
Speaker 5: of the business of baseball, and they're not limiting it
Speaker 5: in any manner, shape or form. We're going to need
Speaker 5: the Supreme Court to step in if this is ever
Speaker 5: going to be changed, and frankly, I don't see that likely.
Speaker 2: This Court has changed a lot of other things, so
Speaker 2: we'll wait and see. Thanks so much, Marty. That's Martini Dell,
Speaker 2: co chair of the sports practice at Gulston and Stores.
Speaker 2: And that's it for this edition of The Bloomberg Law Show.
Speaker 2: Remember you can always get the latest legal news on
Speaker 2: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
Speaker 2: and at www dot Bloomberg dot com, Slash podcast Slash Law,
Speaker 2: and remember to tune into The Bloomberg Law Show so
Speaker 2: every weeknight at ten pm Wall Street Time, I'm June
Speaker 2: Grosso and you're listening to Bloomberg