February
22, 2012
FROM: DAVID GREIFINGER, ATHLETES’ ADVOCATE
RE: UPDATE ON USATF RESTRICTIONS ON COMPETITION
UNIFORM LOGOS
To
All Concerned:
I
am updating the discussions regarding USATF’S logo restrictions that have taken
place since the 2011 Annual Meeting in St. Louis. This memo has been drafted in collaboration
with the Athlete’s Advisory Committee leadership.
BACKGROUND
USATF’S
National Office, without a vote by the Membership or the Board, instituted a
policy of enforcing IAAF advertising regulations restricting the size and
number of commercial logos and the size of club logos on athletes’ uniforms at
USATF national championships, club championships,
“Golden Spike” track meets, and road race championships. The National Office instituted these
guidelines, in whole or in large part due to the urging of Nike, the USATF
National Team Uniform Sponsor.
The
IAAF regulations limit the size of a manufacturer’s logo to 30 sq cm, and a
sponsor’s logo to 40 sq cm. Athletes may
wear one manufacturer’s logo and one sponsor’s logo. Club logos are limited to 40 sq cm, with the
exception of non-commercial clubs that existed prior to 1980. Attire may not include both a non-manufacturer
sponsor logo and a club logo.
IAAF
regulations apply at certain international competitions governed by IAAF
rules. These regulations do not apply to
United States domestic meets. The USATF
National Office’s decision to apply these rules domestically was made
independently from the IAAF.
The
Athletes Advisory Committee and the athletes it represents strenuously oppose
these regulations. Athletes strongly
voiced their opposition at the 2011 Annual Meeting, and unanimously endorsed a
resolution revoking all restrictions imposed by USATF when not required by the
IAAF or USOC. The resolution was set for
a vote at the closing session of the Annual Meeting. Just prior to the session, the proponents of
the resolution agreed to table the resolution with the understanding that any
future restrictions imposed by USATF would be first vetted by the Athletes
Advisory Committee, and then voted upon by the Board.
DISCUSSIONS SUBSEQUENT TO
ANNUAL MEETING
Larry
James, the Counsel to the Board, was charged with leading the discussions for
USATF with the Athletes Advisory Committee.
Jon Drummond, the AAC Chair; Dexter
McCloud,
the AAC Secretary; and David Greifinger, the Athlete
Advocate have represented AAC’S position.
Mr. James has been most courteous during the process.
AAC’S OFFER
After
various communications, Mr. James arranged a conference call of the interested
parties in an attempt to find a resolution.
AAC accepted Mr. James’ invitation to propose an alternate set of
regulations. AAC, recognizing USATF’S
interests in meet presentation, forwarded a detailed proposal. That proposal, attached as Exhibit “A,” would
permit the logos of one manufacturer and up to two sponsors. Logos would be limited to 40 sq cm, or to
lettering of no more than 4 cm high, with no limitation in width. Non-commercial club logos would not be limited
in size, and could be worn along with sponsors’ logos. The regulations would apply the indoor and
outdoor track and field championships and to the Visa Championship series track
competitions.
USATF’S
COUNTEROFFER
USATF’S
counteroffer, attached as Exhibit “B” (with USATF’S changes to AAC’S proposal
tracked) would continue to apply IAAF regulations with two exceptions. First, a sponsor’s logo and a club logo
could both appear on a uniform. Second,
club logos could be larger than the size permitted by the IAAF, though the new
limit is not specified. The restrictions
would apply to all USATF-owned elite competitions in track and field,
cross-country, and road racing.
AAC’S RESPONSE
AAC
responded that USATF’S counteroffer was unacceptable. AAC does not accept the severe limitations on
the number of sponsors and logo size for domestic meets that the IAAF imposes
internationally.
USATF’S CURRENT POSITION AND JUSTIFICATION
USATF
has consulted with Nike, and is holding firm in its position that the Board
should adopt its counteroffer to AAC.
Mr. James has written a memorandum explaining USATF’S position. (See Exhibit “C.”) Mr. James has also shared a June 17, 2009
e-mail from Doug Logan, the former CEO, to the Board; a Board resolution; and a
USATF press release concerning the renewal of the USATF-Nike contract in
2009. (See Exhibit “D.”)
Mr.
James highlights a part of the USATF press release:
“Nike will be a major sponsor of the USA vs. Jamaica Challenge meets in
2010 and will continue to sponsor USA Track & Field’s Indoor and Outdoor
Track & Field Championships. Nike
will outfit all USATF teams in international competitions, including the
Olympic Games, World Championships, World Cup, Pan American Games and World
Junior Championships, among other meets.
The agreement also confirms Nike’s sponsorship of USA vs. The World,
first held in 2000, and one of the key stops on the Visa Championship Series,
USATF’S signature series of indoor and outdoor track and field meets.”
Mr.
James states in his memo:
“We initially reviewed the Sponsorship Agreement with Nike…We asked what
Nike’s expectations were regarding competitors’ logos and use in meets that
USATF controls. We observed that Nike
had the option of reducing revenue if they determine that the value of this
contract has been reduced by anything that USATF does or does not do…
“We also advised David Greifinger that the Nike
contract did not directly address the issue of his proposed resolution and the
logo issue. However, we advised David that
the contract is crystal clear that Nike has the right to make a determination
as to whether any action by USATF reduced the value of this contract. If Nike made that determination, they had the
right to reduce revenue.
“…Nike has stated its position and its position is that it prefers that
IAAF rules control.
“Keep in mind that the Nike contract was negotiated by Doug Logan
in 2009…If there was ever a dispute relative to the interpretation, he would
be a key witness as to his intent with Nike regarding the logo issue. That is a place we do not want to be. Absent Nike’s willingness to concede the
point, we are on dangerous ground for a number of reasons. Thus, it would be our recommendation and
concurrence that the best we may be able to do is the Resolution offered by the
National Office” (emphasis
added.)
DOUG LOGAN CONSTRADICTS USATF’S
ASSERTIONS ABOUT THE NIKE CONTRACT
After
reading Mr. James’ memo, I contacted Doug Logan to confirm or deny USATF’S
perceptions and concerns about the Nike contract. Mr. Logan responded with an e-mail, attached
as Exhibit “E.” Mr. Logan states:
“…I made absolutely no oral promises nor did
I represent that they [Nike] were entitled to any rights other than those
expressed in the contract. I did
assure them I would aggressively enforce the rights which they were
acquiring. If asked to testify I
would assert my belief that athlete uniforms in domestic competitions are
outside the scope of rights acquired by Nike and not material…” (emphasis added.)
AAC’S POSITION AND RATIONALE
USATF’S
proposal to impose IAAF regulations with the two suggested modifications is
wholly unacceptable. USATF’S
relationship with Nike does not mandate or justify imposing IAAF logo
restrictions on athletes competing in domestic meets. Nike has no contractual right to demand that
USATF these restrictions. Any
restrictions mutually agreed upon should reflect best practices to benefit meet
presentation, while protecting athletes’ economic opportunities, and not parrot
overly restrictive IAAF rules.
Nike’s
contract gives it exclusive rights to place its logo on National Team Uniforms,
and gives it sponsorship rights to certain USATF-controlled competitions. As confirmed by Mr. Logan, the contract does
not give Nike any rights over athletes’ uniforms in competitions where they are
not wearing the national team uniform.
The contract cannot (and could not) prevent athletes from wearing
competitors’ logos on their uniforms when not representing national teams. Hence, various athletes wear the logos of
Adidas, Reebok, and all the other manufacturers when competing at USATF
meets. And, nothing in the Nike
contract could conceivably limit the logos of sponsors whose products do not
compete with Nike.
As
Mr. James has confirmed, the Nike contract does not directly address the logo
issue. Nike’s purported right to
determine that USATF has either acted or failed to act in any manner that
reduces the value of its contract, and then to reduce revenue is vague,
nonsensical, and unenforceable. Taken to
its logical extreme, Nike would have veto power over the composition of USATF’S
Board and committees, USATF’S Bylaws, Regulations, and Competition Rules, and
all matters pertaining to competitions and athletes’ rights.
Notably
absent from Mr. James’ memo is any discussion about best practices for
presenting the sport.
USATF
has taken an approach that can be euphemistically described as cautious. USATF is wrong for several reasons.
First,
USATF is compromising the good standing of the National Office and USATF’S
volunteer leadership by imposing rules on its constituents that they do not
want, and which harm their economic opportunities. USATF’S health as an organization depends on
collaboration from top to bottom.
Consent of the governed is essential.
Second,
under the Sports Act, USATF must “demonstrate that it is autonomous in the
governance of its sport in that it (A) independently decides and controls all
matters central to governance; (B) does not delegate decision-making and
control of matters central to governance; and (C) is free from outside
restraint” (emphasis added.) USATF cannot delegate the drafting of its
rules or decisions about athletes’ rights and economic opportunity to Nike or
to any other sponsor. Doing so will jeopardize
USATF’S standing as a National Governing Body and subject it to potential
litigation.
Third,
any combination by USATF and Nike (or any other sponsor) to limit athletes’
economic opportunities raises the specter of federal and state antitrust
violations, unfair competition violations, and claims for interference with
prospective economic advantage.
AAC’S REQUEST FOR BOARD ACTION
AAC
urges the Board to reject the resolution embodied in USATF’S counteroffer, and
to revoke these unilaterally posted regulations for this weekend’s Indoor
Championships. The Board should study
the matter further, and consider AAC’S proposal as a starting point for best
practices for meet presentation that simultaneously preserve athletes’ economic
opportunities. As stated in the AAC
proposal, USATF should also use all reasonable means at its disposal to have
the USOC adopt the AAC proposal as guidelines for Olympic Trials competition.
PROPOSED AMENDMENT TO RULES OF
COMPETITION
The
following proposal is being submitted for consideration at the 2012 Annual
Meeting to amend USATF Competition Rule 143.1.
AAC will ask the membership to adopt this amendment if this matter is
not satisfactorily resolved.
AMEND
Rule 143.1 to read as follows (new language underlined):
In
all events competitors must wear clothing that is clean, designed, and worn so
as not to be objectionable. The size
or number of logos on athletes’ attire shall not be restricted when not
required by the IAAF or USOC. The
clothing must be made of a material that is not transparent even if wet. The competitors must not wear clothing that
could impede the view of the judges.
Athletes’ vests should have the same color on the front and back. This rule shall be enforced by the Clerk of
the Course for track and road events and the Chief Judge of each field event.
LRC Note: Exhibits Referenced: Exhibit A: Athletes Proposal for Uniforms
*Exhibit B: USATF's Counteroffer
*Exhibit C: Mr James Memorandum Explaining USATFs Position
*Exhibit D: Doug Logan Email from 2009 to USATF Board Announcing Nike Agreement
*Exhibit E: Doug Logan Email Saying He Would Testify Uniform Restrictions Are Not Part of Current Contract