Why the PGA-LIV merger isn't a sure thing

"That'd be the last thing you'd want your client to say." 

ESPN's Mark Schlabach reported on the details behind the shocking PGA-LIV merger that shook the golf world last week and according to lawyer Craig Seebald, PGA Tour commissioner Jay Monahan made a comment that could put the partnership in jeopardy.

Per Schlabach, during a discussion with reporters last week, Monahan said the goal of the deal was, "ultimately, to take the competitor off the board — to have them exist as a partner, not an owner — and for us to be able to control the direction going forward."

To Seebald, those words could prove problematic.

"That's surprising he would say this, that one of the benefits is eliminating competition," he said. "I probably talked to 30 or 40 antitrust lawyers, and everybody's just scratching their heads saying 'Why would you say that?'"

As Schlabach notes, "the U.S. Department of Justice was already investigating the PGA Tour's alleged antitrust behavior." The unification of LIV Golf and the Tour will draw even more eyes. 

"The 1914 Clayton Act prohibits mergers and acquisitions that eliminate competition," wrote Schlabach. 

He also spoke with Columbia Law School professor Tim Wu, who believes there's a "100% chance" the merger is investigated by the DOJ and that it could also draw a closer look from European regulators.

"The challenge here...is if you have a monopolist and you have a startup ...Then you decide to just like, 'Hey, let's agree not to compete and share the profits.' That's what the antitrust law bans you from doing," Wu said.

According to Schlabach, Wu highlighted the DOJ blocking a potential merger of American Airlines and JetBlue Airways last year as a sign of how seriously the U.S. government takes cases such as these.

Another challenge for the PGA-LIV merger is the comments made by LIV Golf lawyers accusing the Tour of "being a monopoly and using its power to quash competition" during litigation in the antitrust case that was dropped when the partnership was announced. 

Gerald Maatman, a law professor at Northwestern, told Schlabach, "From a legal standpoint, it's very hard to unring the bell when you make those allegations."

With the two sides now united, there are things both wish they hadn't said.