Litigation by equipment manufacturers

[Jeff_Lewis]

Wilson, Spalding and Mizuno have sued Major League Baseball for prohibiting the use of Aluminum bats by professional baseball players. They claim that the prohibition against Jason Giambi's hitting 650 foot home runs is limiting their ability to sell aluminum bats to amateur baseball enthusiasts.

In their complaint, they quote one nine-year old who said "I decided to take up Soccer...at least in that sport I can use the exact same equipment as the professionals. Those aluminum bats are for sissies."

Commssioner Bud Selig responded, "Our fans enjoy the difficulty of our sport. If today's athlete had access to the best available technology, our game would be altered forever and would be less entertaining to the fan. Bring on the litigation. We have the right to govern our sport at the professional level."




Of course, I AM KIDDING. In light of the Augusta lengthening issue and the Riviera situation etc., it is time for the powers that govern professional golf to take a stand on a competition ball, even if it is different from the ball the rest of us play.

[TEPaul]

Let those manufacturers sue baseball on those grounds and take it all the way to the Supreme Court. Justice Scalia will throw them all out of Washington and probably throw Mizuno all the way back to Japan. Christ, during the Casey Martin case I think Scalia thought it was about baseball anyway---he sure did cite enough analogies to baseball. Sounds to me like he thinks if anybody tampers with baseball it's about the same as raping every American mother and poisoning all the apple pie!

[Richard_Goodale]

Great stuff, Jeff!

If there ever is some sort of ballsy stance by the powers that be (unlikely, I know), the compliance by the manufacturers will be so quick and so seamless that we will hardly ever know this whole debate ever happened.

[Jeremy Glenn. (Guest)]

Not being a lawyer  (thank God! ), I honestly have no idea what legal leg the manufacturers (Ms) can stand on for any lawsuit against the governing bodies (GBs).

Now, I would understand if the GBs changed the equipment specs arbitrarily and/or without due notice, thereby nullifying any Research & Development on the part of the Ms.

Other than this specific situation, would someone please explain to me what the Ms are suing for??

I mean, as far as I know, the GBs make rules which we (recreational golfers) voluntarily support and adhere to.  Apart from tournament golf (a microscopic fraction of the golf market), the GBs can’t force us to follow rules, can’t force us to use certain equipments, and can’t force us NOT to use certain equipments.

I really don’t get it.  If the GBs start setting tighter restrictions on equipment, effective, say, three or five years from now, what are the Ms suing for?

If I were a judge, I’d throw them out of my courtroom.

[Tim_Weiman]

Jeremy:

I've never understood this either.  Given sufficient notice, I can't see what manufacturers really have to bitch about.

For changes in ball specifications, I can't see why the lead time needs to exceed 1-2 years.  For clubs maybe 3-4 years.

[TEPaul]

I guess you haven't read any of my posts for the last year and a half about this. I've checked with a lot of lawyers and the USGA.

The grounds the manufacturers would very likely take the USGA to court on is known as "restraint of trade". Incidentally that's the grounds Callaway sued the RCGA on for their ERC2 ban before dropping their suit (Callaway sued the RCGA (Canadian) in California which seemed a curious (ie boneheaded) move).

These are grounds, that as you've speculated, a manufacturer would have to prove in court as a complainant (USGA, the defendant), which one would think might be difficult to prove provided a number of things had not happened, some of which you've also speculated on.

The USGA would (or should) give the manufacturers plenty of time to comply with another set of B&I rules and regs (new ball specs= a rollback) and naturally the way to do that is to get together with ALL the manufacturers and negotiate just such a time and method it would take for them to do that.

Just laying down the "law" forcefully, as some of you have suggested the USGA should do, would likely give the manufacturers adequate grounds to take the USGA to court on just what you've speculated on---arbitrarily setting rules without giving the manufacturers adequate time to comply with them thereby messing with their product lines and product planning and in effect restraining their trade by arbitrarily effecting their profits.

The best policy is to allow the manufacturers plenty of time to do just this--if any of them said "never" or "ten years" obviously no judge would buy that! In other words the USGA must give the manufacturers adequate time that a judge would agree that they had given the manufacturers adequate time!

It is also probably very important that the USGA talk with these manufacturers (work with them in fact) to come to a agreement on exactly how to do this technically. Heretofore both the manufacturers and the USGA have not collaborated in their technical research to feel comfortable that they are actually looking at this technical or technological area the same way. Naturally there's no reason not to colloborate to come to an understanding that they are comparing apples to apples here! Much of this has to do with testing methods and procedures (protocols), for sure! They need to agree on all these things.

It's also extremely important that the USGA never do or say ANYTHING that appears to "prejudice" the buying or golfing public against any manufacturer's product or brand name! This could definitely be construed as prejudical constituting restraint of trade! You'll note both the USGA and R&A have been extremely careful not to do that (and is probably another reason you think they act like whimps!).

If the USGA (and R&A) has not done any of these things (arbitrarily restrained trade or prejudiced against and manufacturer) and they are taken to court by a manufacturer it seems extremely likely (to me anyway) that the USGA (R&A) would win in court every time!

Here's why! Provided they had done nothing arbitrary or prejudical they would merely claim that they have ABSOLUTELY NO ABILITY to restrain trade because their equipment rules (B&I rules and regs) are enitrely based upon VOLUNTARY COMPLIANCE by EVERYONE (both manufacturers and the golfing public)! They would further point out that they are merely a non-profit organization that has set these rules because that's the way the game evolved and the golfing public and the manufacturers have heretofore decided to voluntarily comply with their rules and regs! Furthermore they would claim that they have no enforcement power over compliance whatsoever with the exception of their own thirteen tournaments and that enforcement power only involves disqualification from play for using "nonconforming" equipment.

That theoretically should get them off the hook in such a law suit. It isn't quite that simple though since a good complainant's lawyer would claim that although technically what the USGA claims is true the golfing public actually BELIEVES that the USGA IS the LAW in effect and that voluntary compliance is not in effect the case here!!

That would require and interesting decision on the judge's part but weighing how some of you'all seem to view this particular subject of what the USGA is and isn't and what they can and can't do, the complainant's lawyer (manufacturer) just might have a pretty valid point and one the USGA (R&A) might struggle to counter. This is the very reason I recommended David Boies to the USGA--if anyone could counter these kinds of arguments it's likely he could!

That's some of areas or potential litigation avenues on this issue although there is a bit more to it. It's also important to note that the USGA itself would likely never be a complainant in an equipment lawsuit simply because they understand how totally what they do in this area is based on voluntary compliance for everyone--something we all should begin to understand better!

There's another area of the law that the manufacturers have been hanging over the heads of the USGA and R&A of late too. That is the manufacturers have suggested that the USGA and the R&A being the two rules making bodies of the game in the world must not be in collusion in arriving at unified B&I rules--that if they happen to come to the same conclusions on the B&I rules that it must be done independent of each other so as not to constitute collusion and agreement which could constitute monopolistic practices.

The USGA and R&A have taken this seriously and have found it difficult to even talk to each other and when they do it's very discreet (since the manufacturers are watching them).

Frankly, in my opinion, both organizations could again claim that no matter how much they agreed on these issues, again their rules are based on voluntary compliance by all and as such could never constitute monopoly since they have no ability to ENFORCE the rules. Again, neither organization IS the LAW and they have no real enforcement powers (voluntary compliance is all they depend on!).

So I hope you can see much of what's going on here and what has changed in the last 5-10 years! It's the attitude and the approach of the manufacturers that's changed, plain and simple--and they're the ones who are the vast majority of this problem!

Most of this presupposes a B&I rollback (rules change) although as did Callaway, clearly a manufacturer can sue the USGA for simply asking for (in effect or to a degree requiring) compliance in the form of declaring a piece of equipment as "nonconforming" (ERC2)!

The Ping lawsuit, by the way, was far different than all this. Although basically a restraint of trade suit the meat of it was asking for a rules & regs "clarification" (radiusing grooves) and not claiming that the USGA did not have a right to establish rules and regs!

[Tim_Weiman]

Tom Paul:

To the contrary, we have read your posts on this topic and do respect your efforts to carefully think through the issues before moving forward.  But, at some point the discussion must come to a conclusion and action must be taken.

I remember my experience in the oil industry when environmental interests pushed the industry to change gasoline specifications for the purpose of improving air quality.

What did the government do?

First, it announced a very clear intention to move forward and achieve certain environmental quality standards.  Second, it provided a comment period for the industry to provide input on technical aspects of the issue, including such things as the exact product standards that would be required and how much lead time the industry would be given.
Finally, industry was given their marching orders and it got the job done.

I don't see anything different here.  The USGA should announce an intention to roll back the ball 10-20%.  It should provide a comment period (say 180 days) and invite input on matters such as the final specifications, testing procedures, lead time required to produce new balls, etc.

Then, after an approprite period of analysis (perhaps another 180 days), the USGA should announce the regulations, including the required implementation date.  

Tom, you will always find business interests that will whine, complain, threaten lawsuits, etc.  That's just part of the game.

Manufacturers will get away with anything you let them.  Either the USGA demonstrates a little courage or we will never get anywhere on this topic.

[Dan King]

Tim Weiman writes:
The USGA should announce an intention to roll back the ball 10-20%.

Should the USGA make such a decision they would lose.

They may not lose in a court of law. You never know there. It depends on the court, the judges and the lawyers.

If the USGA tells me that the ball I used to hit 240-250 will now only go around 200 yards -- and the reason they are doing this is so the top .01% will play courses as the designer intended -- then I will bolt from the USGA.

I doubt I would be alone. I think there will be enough of us that say screw the USGA that the manufacturers will find plenty of market to sell outlaw balls.

"The good of the people is the chief law"
 --Cicero

[Tim_Weiman]

Dan,

I really don't care so much if the top .01% ever play the classic courses again.  That very small group is not my concern.

My concern is the tax being paid by the rest of us in the mindless pursuit of absolute length.  Any money spend to build 7,500 yard courses is a complete waste of the average golfer's money.

We should be building 6,500 yard courses.  We should be focusing on lowering costs for the other 99.9%.

People want to play more not pay more.

[Craig Van Egmond]

Tim,

          Amen to that!

[TEPaul]

Tim:

I hear you on some of your thinking--but I would again caution you to be realistic with some of your recommendations and also some of your analogies.

The USGA is a nonprofit organization run by a board of fifteen volunteer directors administering the rules of a game. One really shouldn't attempt to be too exact with an analogy between the USGA and the United States Government dealing with a commodity (oil) that is extremely necessary to the entire nation!

Anyone should try to make competent decisions and also involve themselves in good long range planning but golf's USGA B&I rules do just involve a game and are wholly misunderstood, as well, by many, in my opinion.

You say give the manufacturers 180 days to do this and to do that but Tim, you really don't know a damn thing about the technical ramifications here, do you? Try to familiarize yourself with them and look at it from the perspective of both the manufacturers and also the USGA. The USGA, once again, is not an entity that has a great deal of power to enact legislation and law as does the massive infrastructure of all that the US government is! You know that!

Do I really mean to suggest that the manufacturers would not research, produce and market a "competition" ball, putting their money at risk? I really don't know Tim, but I don't think you, me or anyone can just assume they will, simply because the USGA feels like telling them to.

Clearly, this is not a simple problem--nowhere near as simple as some think that it is. And consequently it won't be solved by simple answers.

But I do think it can be solved!

[Dan Kelly]

Tom Paul --

I guess I'm among the "some" who think this IS a simple (more or less) matter -- a simple matter of mandating and periodically updating a Competition Ball for USGA and R&A competitions.

I think the Tours, worldwide, would sooner or later go along with that Competition Ball.

You seem to doubt that the ball-makers (all you'd need is 1) would go along and produce the ball requested by the rules-makers. Why do you doubt that?

Say you're a ball-maker (and also, not coincidentally, a club-maker). The USGA comes to you and says: If you'll produce this Competition Ball for us, we won't get in the way of your efforts to market longer and longer balls and longer and longer clubs to Recreational Golfers. We'll shut down all this talk of handcuffing you. Wouldn't you JUMP at that offer?

I've said it before, and I'll say it again: Any USGA effort to shut down "progress" in the technology of golf equipment aimed at the recreational golfer is doomed to failure.

[TEPaul]

Dan;

I don't doubt that a competition ball might be the answer to the latest distance problem which appears to primarily the tour players.

I do want to see something done about the problem and the question only remains as to the details of how to do it. In other words whether a competition ball is the answer at this time for the problem or some other answer is or maybe a combination of solutions. Some info has come along in the last week or so that has put this whole issue in much better perspective, for me anyway.

It has to do with what exactly has happened in the last few years and pretty much revolves around a combination of the methods that have been used for testing and the reason for the data that's been extant. The way the tests have been conducted and the manner in which technology has adjusted to it is surprising to say the least and not exactly what one would imagine, at least not me.

[Tim_Weiman]

Tom Paul:

Let me respond to a couple points.

First, on the question of whether manufacturers would produce a competition ball, I think it is very safe to assume one or more companies would do so.  It is far less likely that ALL manufacturers would not do so.  Some of the manufacturers might huff and puff for a while, but in the end they'll comply.  It is a competitive business and they all want to play.

Second, you questioned my analogy about legislation which changed gasoline specifications.  You are correct.  The circumstances of the Clean Air act were very different.  The US government asked the oil industry to push the technology envelope and produce a far cleaner fuel than had ever been produced before .  Moreover, they asked the oil industry to spend an incredible amount of money to do it: approximately the value of the entire US refining industry in plant re-tooling/ upgrades.  

By contrast, rolling back the ball would not require any technology breakthrough nor large sums of money.  Indeed, it could lead to far lower R&D expenses as the senseless pursuit of absolute length is abandoned.

Tom, you suggest that I don't know anything about producing golf balls.  So what?

The whole purpose of a comment period is to solicit feedback from people who DO have such expertise.  

Remember, that if the comment period produces questions that take more than another 180 days to resolve, it is no problem.  The USGA can simply issue its final regulations when it is good and ready.

Finally, I believe the USGA has the power to conduct its championships as it sees fit.  If they want to mandate that everyone must play with a ball painted red, the USGA can do so.  Equally, if they insist on other specifications for balls to be used in competition, nobody is going to stop them.

Tom, at some point President Lincoln decided he had enough of General McClellan.  Lincoln knew it was time to act.

That's where the USGA is at.  It doesn't need more conferences with lawyers.

[TEPaul]

Tim:

I agree with a lot of what you say--something good might come out of this.

But at the very least I really want you to truly understand what the USGA is and what it isn't-because ultimately it could be very important for all of us. They are not President Lincoln to General McClellan--they are not the government either, we do not vote for them and they haven't asked us to--they are not the law--they are only an organization whose golf rules we've followed because we've wanted to.

[Chris Kane]

I don't see a situation where there was a separate market: the recreational and the competition ball concept working, because since the beginning of the game the weekend amatuer has been able to play the same ball as the top professionals.  

Despite what people say about pro golf being a different game, people still like to think they are doing it like the pros.  

Hopefully, if a competition ball was released, everyone would start playing the competition ball and the distance problem would be completely solved.

[Tim_Weiman]

Tom Paul:

I apologize if the tone of my last couple posts seemed a bit harsh.  I appreciate that you sincerely want to see progess on this issue.

You're right. The USGA has not been elected, but I don't see anyone else looking after the average golfer.  The USGA should have more confidence about jumping in and filling that role.

The golf technology arms race is like slowly turning up the heat and boiling the frog too dumb to jump away.

[TEPaul]

Shivas;

Your recollections of the Ping vs USGA & PGA Tour suit isn't even close.

Ping had no exclusive patent on square grooves and frankly the use and legality under USGA B&I rules and regs of square grooves perceded the Ping EYE2 irons by many years.

What Ping did is radius the grooves on the Ping EYE2 irons. The reason they did that was to prevent "sharp edged" grooves from stripping paint off golf balls. But when he did that the USGA questioned whether that in effect made the measurment between the grooves too close. The rules language on measurment between grooves was extremely vague at that time and a disagreement ensued about how to measure between Ping and the USGA. The PGA Tour went along with the USGA and both the USGA and the Tour deemed the EYE2 nonconforming!

From a recent article it appears the Karsten Solheim was not seeking financial gain in any way by his suit--simply a rules definition clarification.

The suit was settled out of court by the USGA in 1990 and by the Tour in 1992. The EYE2s were "grandfathered" under USGA B&I rules and Solheim agreed to not "radius" future Ping irons. The Ping/Tour settlement agreement had some interesting agreement language within it that may curiously resurface and have some interesting influences on many of the things that seem to be transpiring and may transpire in this whole distance issue today and in the future.

The suit was not one that

[Tom]

TE Paul and others.

I have followed this thread avidly and may I say many thanks for bringing me up to date with where everything stands at this time.  I have wondered about the R&As inability to talk to the USGA about this issue - it is now much clearer.

I do have two questions however:

1. It is not clear from the above whether any real progress is being made ie. behind the scenes are the USGA and R&A getting their ducks in a row to fight this issue with the manufacturers or are they running scared.

2. And this may make me sound like a wishy washy liberal (and believe me I am not, I work in the City of London and well understand the manufacturer's need to create "shareholder value") but is there any sense among the manufacturers (unspoken of course) that they are doing the game a disservice or do they just not give a damn !!!

Thanks again to you all for a fascinating thread.

Tom

[TEPaul]

Tom:

Both excellent questions and extremely fundamental ones too--extremely fundamental!! Would I ever like to know the answer to the first question?

They may be talking but very circumspectly out of what they feel is necessity as the manufacturers are watching them carefully with an eye towards potentially accusing them of collusion on the rules!! If they come to a unified conclusion on the rules (particularly COR) it must appear to be independent of each other--that's the word I hear! To me this is an unnecessary and deleterious situation which the manufacturers do not need to be burdening them with and if they are it would help answer question #2 to a large extent, in my opinion.

As for question #2 this this the $64,000 question and the answer is if they only care about "stockholder value" and their bottom lines they could end up destroying the game eventually. They have to have some consideration for the game, as they used to, but who knows now?

One of the responses to Buzz Taylor's remark four years ago about the USGA getting serious about distance and the fact that it didn't matter how many lawyers were concerned was the remark from the manufacturing side that the USGA may think the game is run from Far Hills but the reality is it is now being run by Wall Street!! Ominous to say the least, and we just might have to wait and see if true.

[Tom]

There is a saying that I heard from a man called Gerard Houllier who is a football manager over here and a bit of a hero of mine.  He is French and has been very unwell lately but he came out with a wonderful gallic turn of phrase which could act as a warning to the manufacturers over this:

"Do not destroy today what you worshipped yesterday".

[Dan Kelly]

Tom --

That's a wonderful quotation -- but I doubt that it applies to  the manufacturers of balls and clubs in quite the way you're thinking.

Lest I sound like a wishy-washy liberal -- and believe me, I am not (I am, I think, a realist):

American corporations worship one thing, and one thing only: growth. Growth in sales; growth in profits. (No criticism intended, by the way.)

They don't worship Merion. They don't worship Riviera. They don't worship Augusta National.

They don't worship golf -- period.

These companies worship selling golf clubs and golf balls. They will not let anything stand in the way of that. You wouldn't, either, if you were in their shoes.

It's unthinkable, to me, that these modern corporations -- the Nikes and the Titleists and the Callaways -- would stand idly by, saying "Yes sir, yes sir, whatever you say sir" while the USGA and the R&A legislate limits on the potential growth of their sales. THAT -- i.e., standing idly by -- would be, to their way of thinking, destroying the thing they worshipped.

I hope you've looked at the "Rollin' back the ODS -- then what?" thread, wherein I (and others) make the case for a Competition Ball, which would (1) keep the game interesting, at the highest levels; (2) put the classic courses back in play for top-level competition; and (3 -- and most vital of all) allow the manufacturers of balls and clubs to continue their technological advances -- and their sales increases -- unchecked.

[TEPaul]

Dan:

I'm definitely not trying to be unrealistic here--and if the competition ball can be worked into golf somehow and solve a current problem albeit one that may only involve a small but highly visible minority, then so be it.

If you're telling me I don't understand the realities of the way these manufacturers think and operate I would definitely disagree with you. I do understand them, my father worked for one and I've been following them all these decades and I can clearly see how they've changed. And that too must be considered!

I'm aware of what they're interested in and I'm also acutely aware of the numerous times throughout history (sports history) where those same entities have ultimately destroyed the very vehicle that supplies the thing they were most interested in!

We may be much in agreement about "what" needs to be done. The "how" of it may be more complicated. That takes understanding of the complexities of the way all these entities interconnect. The key to me is to identify "similarities of interest" in an atmosphere that might appear to have none!

I know they are there and they can be identified and plied! Some will say it's wishful thinking--so be it--I don't think so.

That is a nice quote from your French friend! The fact that he's Gallic I'll try not to hold against him or his quote!

[Dan Kelly]

Tom I --

Thanks, and I hear ya, buddy, but just for the record:

The "Tom" at the front of my message was "GCA Junior Member Tom," over there in the City of London, not "GCA Doyen TEPaul" -- heretofore and henceforth known, in my messages, as Tom I.

[Tom]

TE Paul

"I'm aware of what they're interested in and I'm also acutely aware of the numerous times throughout history (sports history) where those same entities have ultimately destroyed the very vehicle that supplies the thing they were most interested in!"

This is my great fear.  I used to love the boxing but I can't watch it anymore - riven as it is by rapists, pimps like Don King or just plain stupidity.  I think it is now six different governing bodies and 12 different weight categories. There used to be one with six !!!

Or look at tennis.  When I was a kid I used to love watching the rallies with people like Borg or McEnroe.  Now it is just a service game because of technology.

Or, and this is the worst case - the Olympics.  I think the Olympian used to be something to be proud of.  Alright there was the odd cheat but look at it now - corrupt from top to bottom !!!

In the midst of this chaos golf stood alone, in part I believe because it is self-regulating.  I honestly do hope and believe something will be done.  

It was a great shame when Augusta chose to go the route of lengthening rather than stipulating which ball could be used in their competition.  They have the right to do that.