Nick Symmonds’ Run Gum Lawsuit Tossed Out, USATF and USOC Can Restrict Non Apparel Logos at Olympic Trials

Why Not Create a Club? wrote:

So why doesn't RunGUM or whatever just pay the USATF the $100 or whatever it costs to register the "Brooks - Run Gum Track Club" and then plaster the singlet with whatever logo they want?

I think the current rules suck for athletes - particularly mid-tier who might get paid to wear ads.

But why doesn't someone just totally screw with the USATF with an advertising-driven club logo?

Run gum did this a few years ago ... The rules say that the company must makes most of its $$$ from apparel.

One procedural correction to the LetsRun recap story: the recap says that the lawsuit was dismissed on summary judgment (i.e., Rule 56). It actually was dismissed on a Rule 12(b)(6) motion to dismiss. Two different legal beasts.

MVrunner wrote:

One procedural correction to the LetsRun recap story: the recap says that the lawsuit was dismissed on summary judgment (i.e., Rule 56). It actually was dismissed on a Rule 12(b)(6) motion to dismiss. Two different legal beasts.

We will correct that. Legally can you explain the difference?

The judge didn't address that apparel logos are allowed.

before the ruling the ruling I was thinking of writing an editorial saying 'and what happens if ustaf wins the lawsuit' . just because the judge says the usoc can do whatever the hell it wants doesn't mean athletes should accept it.

There is very little money in these logos for one meet. It's a matter of principal and the athletes in my mind shouldn't back down.

+1. No chance.

kjVC wrote:

That T-Mobile dude just wasted his money.

Not only will USATF duct-tape over the logo, but Nick won't even make the Finals.

wejo wrote:

MVrunner wrote:

One procedural correction to the LetsRun recap story: the recap says that the lawsuit was dismissed on summary judgment (i.e., Rule 56). It actually was dismissed on a Rule 12(b)(6) motion to dismiss. Two different legal beasts.

We will correct that. Legally can you explain the difference?

The judge didn't address that apparel logos are allowed.

before the ruling the ruling I was thinking of writing an editorial saying 'and what happens if ustaf wins the lawsuit' . just because the judge says the usoc can do whatever the hell it wants doesn't mean athletes should accept it.

There is very little money in these logos for one meet. It's a matter of principal and the athletes in my mind shouldn't back down.

12(b)c dismissal means that it was dismissed for failure to state a claim upon which relief could be granted. This is a higher standard than that needed for summary judgment, which is that they have a claim, but fails as a matter of law. Symmonds will almost certainly appeal. I'll see if I can get my SO, who is a lawyer with experience in this area, to read the decision.

Guess I'm not going to watch the olympic trials then.

Actually, the best way to frame it is this: a 12(b)(6) motion assumes the factual truth of everything the plaintiff pleads in its Complaint. It basically tells the Court: "Even assuming that every fact plaintiff says is true, plaintiff's claim fails as a matter of law." Because a 12(b)(6) motion assumes the factual truth of the plaintiff's Complaint, it can (and must) be adjudicated at the very beginning of a case, before discovery.

A summary judgment motion, by contrast, is usually adjudicated at the end of discovery, once all the facts are (theoretically) on the table. It basically tells the Court: "Here's what the facts are, there's no genuine conflict or dispute in the evidence, so please resolve this case as a matter of law."

P.S. The reason why this distinction really matters is precisely because a 12(b)(6) dismissal kills a case before discovery. If Symmonds had survived 12(b)(6), discovery could have opened, and his lawyers could have (for example) taken depositions of USATF officials and compelled production of their confidential documents. Now, barring a reversal on appeal, that (sadly) won't happen.

Trying the case in Portland was a mistake. They should have filed the suit in San Francisco federal court.

Crazy idea:

I wonder how hard it would be for all the athletes to get together, boycott the IAAF's meetings and jurisdiction and set up a new professional athlete's federation that is not strangled by the IAAF's historical amateurism. This is capitalism, we don't have to have the sport under the IAAF's tyranny. This federation could be backed financially by big sponsors interested in the sport and the athletes themselves (there are hundreds of them rich enough to get the ball rolling) and when established, put on it's own 'Diamond League' and road race series with the view to make the sport more exciting for viewers, pulling in more interest and taking a professional approach to sponsorship; trying to get the most capital it can from it's events and distributing this money better amongst the athletes (much higher and deeper prize money would be a start).

It has happened in other sports. I know darts for one didn't like how the BDO weren't pulling in enough sponsorship and rewarding the players so a splinter group of players set up the Professional Darts Corporation instead and got sponsors aboard. Now the PDC is much bigger than the BDO (naturally) and the players in the PDC make a killing.

Here's my quick take:

1) The court was right that the allegations of a horizontal conspiracy (between competitors) is too flimsy. Even though the court is required to treat factual allegations as true on a motion to dismiss, Run Gum was required to plead enough specific facts to make their claims plausible. This happens a lot in antitrust: Plaintiffs want to plead horizontal conspiracies because they are usually per se illegal, and there's no need to get into balancing of pro and anticompetitive effects. But usually a plaintiff will not have any clear proof of a horizontal conspiracy--just a hunch. It's tough to survive a motion to dismiss without more.

2) The court's was right in highlighting some problems with Run Gum's market definition. Restraints are only unlawful when they restrict competition in a relevant market. Markets are defined by considering the ability of a participant to raise prices in the market without buyers taking their business elsewhere (cross-elasticity of demand). Plaintiffs always want to define markets very narrowly. For example, a retailer might argue that a particular mall constitutes a relevant market, but in reality, buyers are willing to shop wherever they have to to get the best deal. (One of my favorite silly market definitions was "Bar mitzvah tours of Israel." See more at:

http://caselaw.findlaw.com/us-7th-circuit/1301571.html#sthash.Sbkft73W.dpuf

). The problem here is that the plaintiff is Run Gum instead of the athlete. From a sponsor's perspective, the advertising market is huge, and it's implausible to suggest athletes' uniforms is really a single market for antitrust purposes. (If the cost of advertising on uniforms goes up, sponsors allocate their dollars to other advertising avenues.) On the other hand, if the athletes were the plaintiffs, they would have a much stronger argument because they have no other options.

3) The court's conclusion regarding implied antitrust immunity under the Amateur Sports Act is suspect. In a normal vertical restraint case, the plaintiff has to show an anticompetitive effect in the relevant market, then the burden shifts to the defendant to show that there are pro-competitive justifications for the restriction that outweigh the anticompetitive effects. What the court did here was take flimsy procompetitive justifications as sufficient to demonstrate antitrust immunity under the ASA. These flimsy justifications would probably not be sufficient to prevail if the court were forced to balance them against anticompetitive effects, but the court has effectively made them the entire issue. I think there's a very good chance that it won't survive on appeal. (In the 9th Circuit, an appeal can take a very long time.)

4) More a comment on the lawsuit than the opinion, but Run Gum's theory seems a little strange to me. It's not entirely clear what USATF is gaining. It's helpful to have a clear story about why the defendants expected to benefit by suppressing competition. (To be fair, I have not read all of the filings in this case.)

I thinkI think wrote:

is funny complaints about the wasted expenditures of the UTAf. But then causes them to waste significant money on defending a baseless lawsuit. That's proving my point that doesn't really care about other athletes only himself

You're either drunk, non-English speaking, or the worst writer in the history of the world.

The judgement makes sense to me.

That said, I do think we should burn down USATF and the IAAF, but they would have to be replaced. And, I think we'll find that, even if the USATF's successor is athlete run, it's going to cost a similar amount of $ to run an organization of that size and put on as many competitions as they put on.

The benefits, though, would be a direct voice in how it's run and the ability for the athletes to further monetize their opportunities.

To me, though, you're going to need to hire a pro to maximize the opportunity. In other words, you need a commissioner-like person who can structure a schedule, get sponsors, strike media deals, etc. That's NOT a Nick Symmonds or a Seb Coe. It's a pro like Tim Finchem of the PGA Tour. Those people are expensive.

And, you'll probably end up with the same sponsor--Nike. Meet the new boss, same as the old boss...

With respect to No. 2, that was I was wonder. This case was brought by a company not an individual athlete. So this A) destroys Nick's claim that he was fighting for all athletes and B) I think the judge had to approach the lawsuit different. It is possible to bring the case as an individual athlete? I don't know.

If the court had sided with Nick, I don't think it would have opened the floodgates. the higher profile athletes wouldn't want to necessary dilute their own sponsors and the lessor tier athletes might have had exclusive rights to their sponsor written into the contracts. they might have extracted a little more money, but not much.

As much as people want to kill the IAAF and USATF, The athletes to just as bad at marketing themselves.

I think it sounds good in theory, except for National groups like the USATF. To qualify for the new International group's championships one would seemingly have to go through a national qualifier still. USATF is backed by the Nike colossus and I'm guessing contracts like that are where athletes would get stuck.

It is a solvable problem, just not by someone as dumb as I.

kjVC wrote:

That T-Mobile dude just wasted his money.

Not only will USATF duct-tape over the logo, but Nick won't even make the Finals.

But yet here we are talking about T-Mobile again and again, meanwhile I hear Ajee Wilson wears adidas shoes. But no one cares, nor mentions it.

T-Mobile are probably even more stoked at the decision. It has brought more attention to the cause.

Right, but can't they still be just a club? Keeping whatever manufacturers logo on there?

You'll see all sorts of clubs at the trials (particularly opening rounds) that have both the club name and the manufacturer logo. If Run Gum just became a registered club, this would fly - would it not? Just come up with some new logo that had the words "running club" underneath. All they have to do is make sure they keep the manufacturer logo on there.

I suppose this still wouldn't satisfy Nick, but if he's so hell-bent on getting Run Gum on the singlets, this is the way to do it, right?

They chose the wrong venue wrote:

Trying the case in Portland was a mistake. They should have filed the suit in San Francisco federal court.

I thought the same thing, you're telling me judge Michael J. McShane was not biased at all being in Nike's backyard, having gone to 2 Nike sponsored universities growing up? And we know how John Capriotti operates if someone wants to disagree with him.

The problem with athletes representing athletes its amateur hour. None of these athletes have experience at anything outside of of training and competing.If you look at the group most of them become backside kissers to the governing body. They really have no rights, they are pawns in the game and have little or no say.