What are Symmonds Legal Options to be Put on Team?

I had emailed Nick tonight after the news broke and asked him a few questions. He wrote back, "Thanks for the email. I am meeting with a lawyer tomorrow to discuss my options. I spoke with Max Siegel a few times over the phone and he was very supportive. In the end USATF refused to alter the Statement of Conditions in any way. The TFAA is working with a lawyer to draft a new Statement of Conditions to present to USATF for use in future team selections."

Nick's email clarifies that USATF did realize this was about the wording of the statement of conditions.

I assume he has already tried this, and if so, it didn't work, but if he hasn't, he should request arbitration through the USOC. They have some oversight over NGBs, and provide an ombudsman to assist athletes.

I can't believe that other NGBs haven't faced a similar issue, and have dealt with it without such a conflagration.

My team is not buying anymore Nike products.

I'm putting it all over Facebook! #StandWithNick

sorta in the know wrote:

I can't believe that other NGBs haven't faced a similar issue, and have dealt with it without such a conflagration.

How many other sports pay to send their chosen athletes to their world championships? USA Cycling does not do this. At all.

Swimming is the other high-visibility USOC sport who might have budget to pay for travel. Anyone know about swimming?

If the federation is worse off, all the better. They did it to themselves.

If Symmonds didn'nt already have his next three moves planned in advance then he is an idiot and doesn't deserve our support.

In my mind, this is restraint of trade, since Nike is trying to apply a monopolistic practice to ban the use of an athlete's sponsor's branded equipment outside the field of competition, and the use of this monopolistic practice may reduce the ability of the athlete to sign contracts with his own sponsor (since he can't wear their branded gear at all).

As I said on another thread, I would seek an injunction to block the ENTIRE TEAM from participating.

wejo wrote:

I want Nick on the team, so what are his options for being on the team.

Another question for lawyers: Would a better legal strategy to get on the team would have been to blackline the contract and sign that? ie adding what he considered to be a team function where he would wear Nike stuff.

If USATF accepted the blacklined contract by say putting him on the team then it would become legally binding, but otherwise not. And it seems they made clear to him that he had to sign the contract as is.

“We can’t have a viable sport if our governing body is that incompetent ... let me help you. But as of now, I just keep getting emails from their lawyer saying, ‘Sign the contract as it is or you’re not going.’ That’s not helpful,” Symmonds said.

Relevant provisions of the Ted Stevens Olympic and Amateur Sports Act:

36 USC §220509(a):

"The corporation [USATF] shall establish and maintain provisions in its constitution and bylaws for the swift and equitable resolution of disputes involving any of its members and relating to the opportunity of an amateur athlete, coach, trainer, manager, administrator, or official to participate in the Olympic Games, the Paralympic Games, the Pan-American Games, world championship competition, or other protected competition as defined in the constitution and bylaws of the corporation. In any lawsuit relating to the resolution of a dispute involving the opportunity of an amateur athlete to participate in the Olympic Games, the Paralympic

Games, or the Pan-American Games, a court shall not grant injunctive relief against the corporation within 21 days before the beginning of

such games if the corporation, after consultation with the chair of the Athletes’ Advisory Council, has provided a sworn statement

in writing executed by an officer of the corporation to such court that its constitution and bylaws cannot provide for the resolution of such dispute prior to the beginning of such games."

36 USC §220522(4)(b):

"An amateur sports organization is eligible to be recognized, or to continue to

be recognized, as a national governing body only if it—

agrees to submit to binding arbitration in any controversy involving—

the opportunity of any amateur athlete, coach,

trainer, manager, administrator or official to participate in amateur athletic competition,"

wejo wrote:

Another question for lawyers: Would a better legal strategy to get on the team would have been to blackline the contract and sign that? ie adding what he considered to be a team function where he would wear Nike stuff.

I think the best legal approach would have been one of the following strategies:

1) Do something like what you suggest, but I don't even think he would need to blackline it. Since "official" wasn't defined, he can just follow it as he interprets the term. Only wear the gear at what he considered "official" events, and then make usatf make the first move to enforce their interpretation of the contract. And under contract law, ambiguity in the contract generally goes against the drafter of the contract, which is USATF in this case. So I think USATF would have a hard time enforcing their interpretation of the contract. (I think this would have been a better marketing strategy too. If he got kicked off the team for actually wearing Brooks gear in a hotel, the actual facts would have been clear, it would have been impossible for USATF to claim it had anything to do with wearing a team uniform during competition.)

2) If he wanted to challenge the contract without signing it, he should have brought some sort of declaratory relief action far enough in advance so it had a chance to be resolved in time. Under the Ted Stevens Act, he would have had to go through internal procedures and arbitration before going to court, but he could have brought a challenge as soon as they gave him the contract to sign. He didn't need to wait until they officially denied him a spot to bring a claim.

Either of those options would be a far better legal strategy than what he did. At this point, if USATF left him off the team, he might not be eligible under IAAF rules, and I'm not sure a court could now force the IAAF to accept him even if it ruled USATF was in the wrong. He would be limited to recovering damages from USATF.

Now, just because his legal strategy was bad doesn't mean his marketing strategy was bad. All things considered, this might have been his best move. But I think he made a bad move from a pure legal perspective.

I just posted no. 1 of Mike M.'s post under the Nick Symmonds not fit thread. I agree with no. 1 completely.

I am not sure Nick would be bound to exhaust internal remedies in an action against Nike. But I doubt Nike is on the contract. And there is really not any sort of restraint of trade issue. If there was, Brooks would have already filed a lawsuit and would not leave Nick to fight this fight.

Given the timing, Nick could probably get a judge to issue an injunction without exhausting internal arbitration procedures if he can show that he would suffer irreparable harm (he probably can). I would certainly want to be in front of a judge sooner than later in this dispute.

He cannot simply alter the contract to his liking and send it back. That would be considered a counteroffer that USATF would have to accept. USATF would probably just send it back with a note saying "no thanks".

I suspect that once he lawyers up, USATF will come to the table and produce a list of "team events" and attach it to the agreement as an exhibit. Litigating over something that can be easily addressed by better draftsmanship is not a good idea.

coach d wrote:

In my mind, this is restraint of trade, since Nike is trying to apply a monopolistic practice to ban the use of an athlete's sponsor's branded equipment outside the field of competition, and the use of this monopolistic practice may reduce the ability of the athlete to sign contracts with his own sponsor (since he can't wear their branded gear at all).

As I said on another thread, I would seek an injunction to block the ENTIRE TEAM from participating.

Thank gawd you are just a simpleton track coach wannabe and not actually a lawyer

Every contract is a "restraint of trade". When Lebron James contracts with Cleveland it means that it can't also provide basketball services to New York or Miami. When you sell drugs to your sprinter, it means you can't sell the same drugs to your hurdler. Both "restrain trade

Symmonds just wants to be able to sell performance enhancing gum. He wants to restrain Nike's trade with USATF in order to do so

Precious Roy wrote:

I suspect that once he lawyers up, USATF will come to the table and produce a list of "team events" and attach it to the agreement as an exhibit. Litigating over something that can be easily addressed by better draftsmanship is not a good idea.

I think this also shows that Symmonds legal position now is quite poor. So he brings an action claiming that he was left off the team because USATF improperly required him to sign a contract as a condition for being on team and that action exceeds USATF's authority. But I think Symmonds would even agree that it only exceeds their authority if they take a broad interpretation of "official" team events.

The problem for Symmonds is he never made USATF commit to a broad interpretation, so they can just deny that they would try to enforce a broader interpretation. As Precious Roy said, they could even provide a list of official team events that they now claim the contract would apply to, and at this point, how could Symmonds refute that? I don't think the letter can do it, because USATF can just argue that was a helpful suggestion, not a part of the contract.

The more I think about it, the more I think Symmonds didn't approach this the best way. And I say that from a position of sympathy and general agreement with him.

Black lining is the dumbest legal approach. He would essentially be putting in a counter offer which the USATF would reject. You can't just change contract term and expect them to be included.

Agree on 1). If he were my client, the best approach would be to sign it and go. Then if they challenged him at certain points. Refuse citing the agreement and document the incident or have a witness.

Then if he was penalized he could challenge that. By arguing the term was ambigious.

The risk is 1) the term would not be found to be ambigious and the penalty would stuck and 2) he would have to compete which seems suspect now.

As an aside, he offer to change to contract was laughable and stupid. If I represent a New Balance athlete you think I want a Brooks athletes setting the term for everyone. Heck no. I want my athlete to be a part of that process. That offer was just as controlling as the USATF's behavior.

Nick's timing is highly suspect. I

I don't think black lining would be dumb; it would most likely just be useless. If by some chance USATF accepted the counteroffer, he wins. If they reject it (which they most assuredly would unless someone was asleep), he hasn't been harmed at all and is just back at the same spot. USATF is not going to rescind the original offer. So blacklining is most likely useless, but there is no harm in it.

I agree his offer to change the contract was bad. How many people have already signed the contract? USATF wasn't going to have one contract for Nick Symmonds, and another contract for everyone else on the team. And as you say, the timing is bad too. He can't expect USATF to re-do a contract that affects hundreds of people when you only have a couple days left? That's not reasonable.

His main problem is that he seems to have conflated the letter from USATF, which was horrible, with the contract. But the contract didn't incorporate the letter in any way. And he doesn't seem to have a problem with the main idea that official team gear should be worn at events that truly are official events. He is just worried that "official" will be interpreted beyond its common sense meaning. But I think the fact that it is in quotes could be argued to actually narrow the meaning of the word, not expand it.

Also, if he is really just going to talk to a lawyer now about his options, he is a fool. He should have done that weeks ago when he first decided he wasn't going to sign. Don't wait to talk to a lawyer until all of your good options are already gone.

I agree 100%. But I think I understand Nick's emotional state a bit better. Why go through all of the hype to get ready for worlds knowing that you are going to have a conflict with USATF and possibly get kicked off the team just before prelims start? He would be taking the focus of the event off athletics and redirecting it to politics and would leave an empty spot that someone else could have used in the 800. Nick is not a "take everyone down with me" kind of guy. I think he is probably aware of these issues and has decided to take one for the team.

#BoycottNike wrote:

My team is not buying anymore Nike products.

"any more"

Couple of things would be interesting.

Brooks, Asics etc take out an injunction to prevent their athletes wearing Nike gear out of competition.

Athletes wear their own sponsor's gear anyway to test the USATF's spunk.

Precious Roy wrote:

I agree 100%. But I think I understand Nick's emotional state a bit better. Why go through all of the hype to get ready for worlds knowing that you are going to have a conflict with USATF and possibly get kicked off the team just before prelims start? He would be taking the focus of the event off athletics and redirecting it to politics and would leave an empty spot that someone else could have used in the 800. Nick is not a "take everyone down with me" kind of guy. I think he is probably aware of these issues and has decided to take one for the team.

That could be that case, and I would understand that. There are definitely more things to consider than just the legal side. Also, the contract does state that the penalty for the "third offense" is a 1 year ban on international teams, so that approach could put the 2016 Olympics at risk as well. Of course, he could just get the first offense to create solid grounds to challenge the policy and then follow it the rest of the time. But that doesn't sound like something Symmonds would want to do.