Editor’s Note: If you missed Jill’s last post — a preview of Marquette Sports Law Review’s Fall 2016 Issue — you may find it here

  1. USATF GOVERNANCE

USATF is the “National Governing Body for track and field, long-distance running[,] and race walking in the United States.”[1]  USATF is a non-profit organization led by Stephanie Hightower and Max Siegel, its President and CEO, respectively.[2] USATF’s mission is to “drive[] competitive excellence and popular engagement in [its] sport.”[3] To become a USATF member, athletes must complete a membership application, pay the annual fee, and not currently be serving a suspension for disciplinary action.[4]

As a national governing body (NGB), USATF must comply with the Olympic Charter, the International Olympic Committee’s (IOC) rules, and the International Association of Athletics Federations’ (IAAF) rules.[5]  NGBs are also subject to applicable domestic laws within their respective countries.[6]

2. NICK SYMMONDS’ AND USATF’S PUBLIC CLASH

After the announcement of USATF and Nike’s extended partnership agreement, which now extends through 2040 and whereby Nike will likely provide USATF with $17-$20 million annually,[7] athletes worried about “Nike’s influence on the game and USATF rules.”

Nick Symmonds, in particular, was very vocal regarding his disapproval of the partnership agreement.  Symmonds is a “professional track athlete and two[-]time Olympian,” competing internationally and specializing in the 800m.[8]  Symmonds also tries to help “struggling athletes obtain sponsorship” after being disappointed in the “sponsorship logo and branding restrictions placed on track athletes,” which makes it hard to receive individual deals.[9]  Moreover, Symmonds is “determined to change the sport’s governing bodies’ marketing restrictions which only allow minimal advertising dollars to reach track athletes.”[10]  Symmonds has an individual sponsorship agreement with Brooks, an apparel company,[11] and is founder of Run Gum.  Run Gum manufactures and sells caffeinated chewing gum, providing track and field athletes with a coffee or energy drink alternative with no liquid.[12]

On January 20, 2016, Symmonds’ company filed suit.[13]  The complaint attacked USATF’s Rule 50, which prohibits non-sports apparel sponsors on athlete attire at the 2016 Olympic Trials.

3. RUN GUM’S LAWSUIT

Run Gum,[14] founded by Nick Symmonds and Sam Lapray, a running coach, filed a complaint in the United States District Court for the District of Oregon, alleging that USATF, USOC, and other unnamed coconspirators[15] jointly agreed and conspired to “limit the type of individual sponsors that track & field athletes can display on their competition tops,” competition bottoms, leotards, “tops, t-shirts, sweatshirts, rain jackets, and lower body attire at the Olympic Trials.”[16]  Run Gum specifically alleged that Defendants’ agreement is a “price-fixing agreement with horizontal and vertical features,” making it per se illegal, or, in the alternative, an unreasonable restraint of trade under the rule of reason.[17]  The complaint also alleged that Defendants do in fact possess “100% market share of the individual-sponsorship market.”[18]  The complaint’s only connection to Nike is that Run Gum could believe that Nike is one of the unnamed coconspirators because the complaint alleges that the agreement prohibits “certain businesses—while permitting others—from sponsoring individual athletes.”[19]  Because Nike is an apparel company, and the exclusive sponsor of USATF, Nike’s logo appears on every athlete competing at the 2016 Olympic Trials while non-sports apparel or equipment companies, like Run Gum, cannot even step up to the starting block.

USATF’s rule that Run Gum attacked only allows “approved apparel manufacturers” to “occupy the little 30cm2 allowable logo space” on an athlete’s uniform.[20]  Bye-Law to Rule 50 states,

“No form of publicity or propaganda, commercial or otherwise, may appear on persons, on sportswear, accessories or, more generally, on any article of clothing or equipment whatsoever worn or used by the athletes or other participants in the Olympic Games, except the identification [. . .] of the manufacturer of the article or equipment concerned, provided that such identification shall not be marked conspicuously for advertising purposes.[21]

To be approved to occupy this logo space on an athlete’s uniform at the 2016 Olympic Trials, a majority of the company’s revenue must come from the sale of apparel, which Run Gum’s revenue does not.[22]  Lauren Fleshman also points out that 30cm2 is just big enough to fit the Nike swoosh trademark.[23]

Because Run Gum is “an athlete-owned business” manufacturing, marketing, and selling a “performance-enhancing product for athletes,” defendants’ agreement allegedly harmed Run Gum by prohibiting it to display its logo on individual athletes’ apparel at the Olympic Trials.[24]  Run Gum sought an injunction in exchange for sponsor identification on clothing at the Olympic Trials.[25]

4. CONCLUSION

If only Run Gum had attacked the agreement between Nike and USATF and looked at the larger picture rather than attacking Rule 50, a USATF rule that only applies to the National Championships in an Olympic Year, and one that Symmonds personally agreed to, this lawsuit may have had legs to run on.

Because USATF’s Rule 50 provides no economic or competitive advantage and is therefore not a business or commercial activity, Rule 50 is not the proper subject to an antitrust claim. Nick Symmonds’ desire to provide USATF athletes with better opportunities to obtain individual sponsorship agreements, especially in light of the extended partnership between Nike and USATF, should have been attempted by challenging USATF and Nike’s agreement itself, which is the subject of my Comment, a forthcoming publication.

[1] About USATF, USA Track & Field, http://www.usatf.org/About.aspx (last visited Mar. 14, 2016).

[2] Id.

[3] Id.

[4] Eligibility Requirements, USA Track & Field, http://www.usatf.org/Events—Calendar/2016/USATF-50-km-Womens-Race-Walk-Championship/Athlete-Info/Eligibility-Requirements.aspx (last visited Mar. 14, 2016).

[5] Matthew J. Mitten, Timothy Davis, Rodney K. Smith, & N. Jeremi Duru, Sports Law and Regulation: Cases, Materials, and Problems 260 (Vicki Been et al. eds., 3d ed. 2013).

[6] Id. at 261.

[7] Abrahamson, supra note 2.

[8] About Nick, Nick Symmonds, http://www.nicksymmonds.com/about-nick/bio/ (last visited Mar. 14, 2016).

[9] Jeré Longman, Runner Nick Symmonds Faces Ban Over Gear, N.Y. Times (Aug. 7, 2015), http://www.nytimes.com/2015/08/08/sports/olympics/dispute-over-uniforms-may-keep-nick-symmonds-from-the-worlds.html?_r=0.

[10] Id.

[11] Id.

[12] Gold Medal v. USA Track & Field, Compl. ¶ 15 (Jan. 20, 2016).

[13] See id.  Run Gum is the designated business association for Gold Medal LLC.

[14] Symmonds was smart to file his complaint under his company’s name as the Ted Stevens Olympic and Amateur Sports Act does not create a private right of action.

[15] Hereinafter, collectively, “Defendants.”

[16] Compl. ¶ 2.

[17] Id. ¶ 61-62.

[18] Id. ¶ 42.

[19] Id. 

[20] Lauren Fleshman, Thoughts on Run Gum Suiting USOC/USATF, Ask Lauren Fleschman (Jan. 22, 2016), http://asklaurenfleshman.com/2016/01/thoughts-on-run-gum-suing-usocusatf/.

[21] Olympic Charter 94 (2015).

[22] Fleshman, supra note 24.

[23] Id.

[24] Compl.  ¶ 48-49.

[25] Id. ¶ 69-73.

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