Forums Dancehall Reggae PGA Tour Can Depose Saudi Wealth Fund’s Leader, Judge Rules

Posted February 17, 2023 03:37 PM

The decision in a case involving the LIV Golf series could reveal details of the operations of Saudi Arabia’s Public Investment Fund.

A federal magistrate judge has ruled that the leader of Saudi Arabia’s sovereign wealth fund, which has bankrolled the new LIV Golf series, must sit for a deposition by lawyers for the PGA Tour who sought his testimony as part of the tangle of litigation involving the sport-splitting circuit.

The decision, released on Thursday night in California after an interim legal skirmish that dealt with questions of sovereign immunity and the reach of Saudi law, could reveal details of the wealth fund’s operations and the power of its governor, Yasir al-Rumayyan, over its investments abroad.

The wealth fund is expected to ask a federal judge in San Jose, Calif., to review the decision by the magistrate judge, Susan van Keulen, who is helping oversee the bitter legal clash between the PGA Tour and LIV Golf.

In her 58-page ruling, portions of which were redacted in the version that became public late Thursday as the sides jousted about its confidentiality, van Keulen wrote that it was “plain” that the wealth fund was “not a mere investor in LIV.”

Instead, the judge wrote, the wealth fund was “the moving force behind the founding, funding, oversight and operation of LIV.” Al-Rumayyan, she wrote elsewhere in her order, “was personally involved in and himself carried out many” of the wealth fund’s activities to create and develop LIV.

A representative of the wealth fund declined to comment, but its lawyers said in a separate court filing that it and al-Rumayyan “respectfully intend to seek review of the order,” which van Keulen initially issued under seal last week.

Over the last year, LIV Golf, backed by billions of dollars from the Saudi wealth fund, has enticed a handful of elite players away from the PGA Tour in exchange for some of the most lucrative contracts in the sport’s history. But the signings of headline players — including Sergio García, Dustin Johnson, Brooks Koepka, Phil Mickelson and Cameron Smith — have revealed only so much about LIV Golf’s ambitions and the wealth fund’s motives for investing billions of dollars in an enterprise that McKinsey & Company consultants warned was nothing close to a sure bet.

LIV Golf and its champions say they are seeking to revive a sport whose professional level, they contend, has grown stale. The PGA Tour, facing perhaps the greatest competitive threat in its history, and its supporters complain that the rebel series is promoting a diluted version of the game and helping Saudi Arabia distract from its record on human rights.

Although much of what it has learned in litigation remains under seal, the PGA Tour has depicted LIV Golf as routinely subservient to the desires and whims of the wealth fund, formally known as the Public Investment Fund, and al-Rumayyan, an avowed golf fan who is close to Saudi Arabia’s de facto ruler, Crown Prince Mohammed bin Salman. Prince Mohammed is the wealth fund’s chairman.

During a hearing before van Keulen in January, Eliot Peters, a lawyer for the tour, relied heavily on a shareholder agreement that he said showed the scope of Saudi influence over LIV Golf, which will begin its second season with a tournament in Mexico next Friday.

The wealth fund, Peters asserted, had to “consent to” the league’s operating budget, player participation agreements, sponsorship deals, certain broadcasting contracts and the commencement of litigation — including the lawsuit in San Jose that gave rise to the subpoenas demanding documents and testimony from the fund and al-Rumayyan.

“They consent to this litigation,” Peters said of the wealth fund, which he said effectively owns 93 percent of LIV Golf. “They knew it was going to be filed in a U.S. court. They knew it was going to be brought by a subsidiary that they fund completely. They knew it was going to involve player agreements, which they control. They knew it was going to involve sponsor issues on the antitrust side, which they control. They knew it was going to involve broadcast agreements, which is central to the antitrust case, which they control and had the ability to either approve or disapprove of.”

Moreover, Peters told the judge that al-Rumayyan had “personally assured golfers” that the wealth fund would back them legally and that al-Rumayyan had been involved in regular meetings about LIV Golf. The wealth fund’s leader, Peters insisted, was so steeped in the operation of the golf series that an email showed that he was “involved in an issue about the delay in golfers’ scores being posted on a TV screen.”

The wealth fund’s lawyers argued that Peters had exaggerated the extent of al-Rumayyan’s role — or at least misinterpreted it — and that compliance with the PGA Tour’s demands would violate Saudi law. John Bash, a lawyer for the wealth fund, told van Keulen that deposing al-Rumayyan would be analogous to the United States Treasury secretary being susceptible to the demands of a Saudi court if a company owned by the American government faced litigation in Riyadh. (“I see a couple of important distinctions between that analogy and the facts,” the judge replied moments later.)

Beyond arguments about the reach of American courts, wealth fund lawyers have also tried to distance the wealth fund and al-Rumayyan from the golf league. In a November filing, the lawyers said the wealth fund “does not control LIV’s day-to-day-operations” and included a sworn statement from al-Rumayyan, who said it provided only “high level oversight” of LIV.

In late January, though, the PGA Tour asked the court for permission to add the wealth fund and al-Rumayyan as defendants in the litigation. Judge Beth Labson Freeman, who will also consider any bid by the wealth fund to overturn van Keulen’s order, has not ruled on the request.

Much of van Keulen’s decision about the subpoenas rebuffed the wealth fund’s legal arguments; she concluded, for instance, that the wealth fund’s work in the United States triggered a commercial activity exception under a law that deals with foreign sovereign immunity. She did, however, narrow the scope of the tour’s subpoenas, which she said “suffer from overbreadth both in scope and number of requests.” And although she ruled in the wealth fund’s favor on a technical matter related to the subpoenas, she said the tour could re-serve them, preserving its potential to depose al-Rumayyan.

The golf litigation, which is not scheduled to go to trial before next year, is not the first time that the wealth fund has balked at al-Rumayyan’s requested participation in American legal proceedings. Lawyers for Elon Musk subpoenaed al-Rumayyan for testimony in a trial involving Musk’s assertion that he would take Tesla private but backed down after the wealth fund’s lawyers resisted.

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LIV Golf's anti-trust lawsuit against PGA Tour handed severe blow in federal court

With a second season of LIV Golf just days from the starting line, a federal judge has dealt a blow to the group that financially supports the upstart league, one that could radically change the fledgling circuit’s anti-trust lawsuit against the PGA Tour.

Although LIV Golf attorneys have been attempting to shed light on the PGA Tour’s organizational structure and financial dealings, the head of Saudi Arabia’s Public Investment Fund tried to avoid the same fate, claiming “sovereign immunity” during a November filing.

But a federal judge ruled on Thursday that the PIF and its governor Yasir Al-Rumayyan must provide the same information, a move that’s expected to slow the aggressiveness of any suit, and might even halt it completely. It’s uncertain if Saudi officials will want to divulge such information.

Magistrate Judge Susan van Keulen, in the U.S. District Court of Northern District of California, rejected the argument in an order that was made Feb. 9, but which remained under seal as LIV and the PGA Tour fought over proposed redactions of confidential information. A redacted copy of the order was included in a filing released late Thursday.

The original suit, which was filed back in August by Phil Mickelson and 10 other golfers, was taken over by LIV Golf, which is under the PIF umbrella.

However, officials for the Saudi-run firm have insisted they only have high-level oversight over LIV Golf and don’t deal with day-to-day operations. The request also stated the move could set a “dangerous precedent” if PIF had to reveal its books, as the company has investments in major corporations like Walmart and Starbucks and could be ripe for similar requests over any suits filed against companies it holds.

The wealth fund, which was organized in 1971 as a means for the Saudi Arabian government to invest in various projects and companies, has been estimated to be worth over $650 billion.

But Thursday’s filing stated that PIF and LIV are too entangled to separate them for legal purposes.

“The Court DENIES the motion of PIF to quash the subpoena directed to PIF on the grounds of sovereign immunity because it finds that PIF’s conduct falls within the commercial activity exception to the Foreign Sovereign Immunity Act,” the order read. “It is plain that PIF is not a mere investor in LIV; it is the moving force behind the founding, funding, oversight and operation of LIV … PIF’s actions are indisputably the type of actions by which a private party engages in trade and traffic or commerce.”

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LIV attorneys have claimed that the PGA Tour is using monopoly power, illegally suspending players and hanging the possibility of those players to play in future major tournaments, but the Tour filed a countersuit, claiming LIV is using players, “and the game of golf to sportswash the recent history of Saudi atrocities and to further the Saudi Public Investment Fund’s Vision 2030 initiatives.”

PGA Tour lawyers highlighted a text exchange between Al-Rumayyan and Bryson DeChambeau as a shining example of the official’s depth of involvement, noting that Al-Rumayyan reached out to a TV executive in an attempt to secure a media agreement.

“This isn’t what a government does. This is what somebody that is running a golf league does, LIV is pretty much a shell and the financial consequences, be they good or bad of the investment, flow through to PIF,” Tour lawyer Elliot Peters said during a January hearing.

LIV Golf attorneys have already filed an appeal to Thursday’s ruling.

LIV Golf has long been criticized as a way for the Kingdom to sportswash its human rights record with guaranteed money and multi-million dollar deals. Saudi Arabia has been accused of wide-ranging human rights abuses, including politically motivated killings, torture, forced disappearances and inhumane treatment of prisoners. And members of the royal family and Saudi government were accused of involvement in the murder of Jamal Khashoggi, a Saudi journalist and Washington Post columnist.

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