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PIF and Al-Rumayyan Try to Block PGA Tour Subpoenas in Appeals Court

michael mccann
·3 min read
5

Citing cases involving Richard Nixon and Ferdinand Marcos, attorneys for the Public Investment Fund of the Kingdom of Saudi Arabia and its governor, Saudi minister Yasir Othman Al-Rumayyan, argue in a new brief that a federal appeals court should consider their appeal and rule they’re exempt from the antitrust litigation headlined by LIV Golf and the PGA Tour.

On Monday, PIF and Al-Rumayyan filed in the U.S. Court of Appeals for the Ninth Circuit a brief that cites the Foreign Sovereign Immunities Act (FSIA), a federal law immunizing foreign government officials from U.S. litigation. The logic of FSIA is straightforward: Requiring foreign government officials to litigate could raise diplomatic concerns and undermine U.S. foreign relations. FSIA immunity doesn’t apply when those officials are involved in commercial activities, as distinguished from political or diplomatic endeavors, related to the litigation.

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U.S. District Judge Beth Labson Freeman previously ruled that PIF, which is LIV’s primary backer, and Al-Rumayyan, who the PGA Tour depicts as driving LIV’s decisions, must comply with subpoenas in New York City.

The PGA Tour maintains the Ninth Circuit lacks jurisdiction to hear PIF’s and Al-Rumayyan’s appeal of a trial court’s subpoena order. The PGA Tour stresses the absence of supportive precedent in the Ninth Circuit and the general principle in law that only final judgments are appealable.

But PIF and Al-Rumayyan disagree, writing that “courts have repeatedly held that sovereign entities and foreign public officials can immediately appeal a denial of their immunity.” They argue there is no basis to treat subpoena rulings differently.

PIF and Al-Rumayyan also assert that appellate courts have analogously reviewed sovereign immunity claims related to discovery when they involve U.S. government officials.

To that end, they cite U.S. v. Nixon, a Supreme Court decision from 1974. President Richard Nixon challenged a subpoena ordering him to share the Watergate tape recordings, which contained his conversations with aides and advisors. He was allowed to appeal the subpoena order (the prosecutor also appealed), with the Supreme Court reasoning that denying a review could have sparked a “constitutional confrontation between two branches of the government.”

The court worried a president would have to disobey a subpoena before being able to appeal. While the court heard the appeal, it ruled Nixon had to turn over the tapes. Nixon resigned from the presidency a couple of weeks later.

PIF and Al-Rumayyan also point to a 1987 case involving Marcos, who at the time was former president of the Philippines. Marcos sought appellate review of a discovery order, but the Ninth Circuit nixed it, noting Marcos sought to “gut the settled rule that a nonparty must submit to contempt before seeking appellate review of a discovery order.”

PIF and Al-Rumayyan contend the Marcos case is not applicable since he was a former president by the time he received a subpoena, and thus ineligible for FSIA immunity. Al-Rumayyan, in contrast, currently holds the rank of minister. Also, while the Philippine government opposed Marcos’ appeal, the Kingdom of Saudi Arabia recently filed an amicus brief offering its “explicit support.”

PIF and Al-Rumayyan further insist that if the Ninth Circuit doesn’t hear their appeal, they would effectively lose their right to appeal. This is because “once discovery has been compelled and provided, it cannot be undone.”

If the Ninth Circuit agrees to hear the appeal, it likely won’t issue a ruling for many months. As mentioned during hearings for LIV and the PGA Tour, the Ninth Circuit might even take a couple of years. All of this could prove good news for golfers, as LIV and the PGA Tour would continue to compete for their services while the lengthy legal process plays out.

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