Alston Attorney Sets Sights on Tennis Tour in Suit Against ATP

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A month after he led Shawne Alston’s class action to a historic 9-0 Supreme Court victory against the NCAA, attorney Jeffrey Kessler has a new sports industry target: the ATP Tour, the Delaware corporation that oversees global pro men’s tennis.

Kessler and other attorneys from Winston Strawn and Potter Anderson & Corroon filed a complaint in Delaware’s federal district court on July 15 on behalf of the Cyprus-based Super Slam. Super Slam owns and operates the Madrid Open, which was most recently held between April 30 and May 9 and won by Alexander Zverev (men’s singles) and Aryna Sabalenka (women’s singles). It maintains the ATP has breached contractual obligations and engaged in bad faith by scheduling tournaments “so they are adjacent to and overlap with the Madrid Open.”

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The ATP sanctions the Madrid Open as one of nine top-tier men’s tournaments comprising the “ATP Tour Masters 1000s.” The Masters also includes the Monte-Carlo Masters, the Italian Open, the Shanghai Masters and five other tournaments held in Europe and North America.

To illustrate Super Slam’s scheduling grievances, the BMW Open in Germany and the Millennium Estoril Open in Portugal (two ATP World Tour 250-level tournaments) are typically scheduled to conclude on the same day the Madrid Open begins play. As a result, players in the finals for those two tournaments either can’t compete in Madrid or aren’t part of key promotional and advertising events. Since 2009, those players include: Andy Murray, Dominic Thiem, Alexander Zverev, Juan Martín del Potro, Stanislas Wawrinka, Marin Čilić, Stefanos Tsitsipas, David Ferrer, Tomáš Berdych, Philipp Kohlschreiber, Richard Gasquet and Tommy Haas.

Super Slam blames the ATP for allegedly incentivizing top players “to skip or show up late for the Madrid Open due to conflicts with and recovery time from other tournaments”—a phenomenon that “effectively relegates” the eight-day Madrid Open into a “four or five-day tournament for the top players.” The ATP is also rebuked for scheduling the Italian Open to start in Rome on the Madrid Open’s final day, thereby “costing the Madrid Open’s championship match media attention, advertising dollars, and viewership.” Other Masters 1000 tournaments, at least as depicted by Super Slam, have “received full exclusivity so no other tournaments overlap.”

The ATP is also described as requiring the Madrid Open—with a 56-player draw, in contrast to the more common 96-player field—“to pay a disproportionately high amount of prize money for the size of the tournament.” The Madrid Open paid $7.3 to $7.4 million in prize money in 2018 and 2019 and paid $3.2 million this year due to pandemic-related reductions in revenue (the 2020 Madrid Open was canceled altogether). As Super Slam tells it, the Madrid Open has paid over $1 million more per year in prize money than the Italian Open, and about 90% as much prize money as two 12-day tournaments, the Miami Open and BNP Paribas.

To support its contentions, Super Slam’s complaint cites several sections of contractual documents with the ATP. Super Slam insists that the duration and placement of the Madrid Open in ATP’s calendar “are an intrinsic and essential element” of its rights. The ability to operate profitably and attract audiences, the complaint insists, “turns, to a large extent, upon when in the calendar year it falls, how many days it is allotted, and what other ATP Tour tournaments occur during the same period.”

Super Slam seeks a jury trial and monetary damages for alleged loss of profits, though it also demands injunctive relief. The complaint asserts Super Slam will suffer irreparable harm unless a judge orders the ATP to refrain from both “denying [Super Slam] its contractual right to an exclusive eight-day tournament” and “setting prize money requirements for the Madrid Open in a discriminatory manner that are incommensurately high in comparison to other similar eight-day tournaments in Europe.”

In response to the lawsuit, an ATP spokesperson told Sportico: “ATP is aware of the lawsuit that has been filed in the Federal District Court in the State of Delaware. ATP is disappointed that Super Slam Ltd., a valued member of the ATP, has taken this step. ATP believes the lawsuit has no basis in law or in fact and will defend it vigorously.”

Attorneys for the ATP will have an opportunity to answer Super Slam’s complaint, which is an advocacy document—not a neutral retelling of history. Expect ATP attorneys to challenge Super Slam’s factual assertions and maintain their client is in full compliance with contractual and fiduciary obligations.

ATP attorneys will likely also point to discretionary or interpretative powers contained in the documents. The complaint acknowledges these documents refer to the ATP being able to supplement or restate certain terms. One document says the ATP can “refine its format and tournament specifications consistent with ATP Rules and Bylaws.” Super Slam insists such language does not permit the ATP to “unilaterally alter . . . fundamental terms.” Expect ATP attorneys to maintain its client possesses substantial discretion and has lawfully exercised it.

The case has not yet been assigned to a judge.

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