Federal Register / Vol. 79, No. 101 / Tuesday, May 27, 2014 / Notices 30143 

1 In particular, the written request for confidential 

treatment that accompanies the comment must 

include the factual and legal basis for the request, 

and must identify the specific portions of the 

comment to be withheld from the public record. See 

FTC Rule 4.9(c), 16 CFR 4.9(c). 

FEDERAL TRADE COMMISSION 

[File No. 121 0004] 

Marker Vo ̈lkl (International) GmbH and 

Tecnica Group, SpA.; Analysis of 

Agreements Containing Consent 

Orders to Aid Public Comment 

AGENCY: Federal Trade Commission. 

ACTION: Proposed Consent Agreements. 

SUMMARY: The consent agreements in 

these matters settle alleged violations of 

federal law prohibiting unfair methods 

of competition. The attached Analysis of 

Proposed Consent Orders to Aid Public 

Comment describes both the allegations 

in the draft complaints and the terms of 

the consent orders—embodied in the 

consent agreements—that would settle 

these allegations. 

DATES: Comments must be received on 

or before June 18, 2014. 

ADDRESSES: Interested parties may file 

comments at https://

ftcpublic.commentworks.com/ftc/

skimanufacturerconsent online or on 

paper, by following the instructions in 

the Request for Comments part of the 

SUPPLEMENTARY INFORMATION section 

below. Write ‘‘Ski Manufacturers— 

Consent Agreement; File No. 121–0004’’ 

on your comment and file your 

comment online at https://

ftcpublic.commentworks.com/ftc/

skimanufacturerconsent by following 

the instructions on the web-based form. 

If you prefer to file your comment on 

paper, mail your comment to the 

following address: Federal Trade 

Commission, Office of the Secretary, 

600 Pennsylvania Avenue NW., Suite 

CC–5610, (Annex D), Washington, DC 

20580, or deliver your comment to the 

following address: Federal Trade 

Commission, Office of the Secretary, 

Constitution Center, 400 7th Street SW., 

5th Floor, Suite 5610, (Annex D), 

Washington, DC 20024. 

FOR FURTHER INFORMATION CONTACT: 

Mark Taylor, Bureau of Competition, 

(202–326–2287), 600 Pennsylvania 

Avenue NW., Washington, DC 20580. 

SUPPLEMENTARY INFORMATION: Pursuant 

to Section 6(f) of the Federal Trade 

Commission Act, 15 U.S.C. 46(f), and 

FTC Rule 2.34, 16 CFR 2.34, notice is 

hereby given that the above-captioned 

consent agreements containing consent 

orders to cease and desist, have been 

filed with and accepted, subject to final 

approval, by the Commission, having 

been placed on the public record for a 

period of thirty (30) days. The following 

Analysis to Aid Public Comment 

describes the terms of the consent 

agreements, and the allegations in the 

complaints. An electronic copy of the 

full text of the consent agreement 

packages can be obtained from the FTC 

Home Page (for May 19, 2014), on the 

World Wide Web, at http://www.ftc.gov/ 

os/actions.shtm. 

You can file a comment online or on 

paper. For the Commission to consider 

your comment, we must receive it on or 

before June 18, 2014. Write ‘‘Ski 

Manufacturers—Consent Agreement; 

File No. 121–0004’’ on your comment. 

Your comment—including your name 

and your state—will be placed on the 

public record of this proceeding, 

including, to the extent practicable, on 

the public Commission Web site, at 

http://www.ftc.gov/os/

publiccomments.shtm. As a matter of 

discretion, the Commission tries to 

remove individuals’ home contact 

information from comments before 

placing them on the Commission Web 

site. 

Because your comment will be made 

public, you are solely responsible for 

making sure that your comment does 

not include any sensitive personal 

information, like anyone’s Social 

Security number, date of birth, driver’s 

license number or other state 

identification number or foreign country 

equivalent, passport number, financial 

account number, or credit or debit card 

number. You are also solely responsible 

for making sure that your comment does 

not include any sensitive health 

information, like medical records or 

other individually identifiable health 

information. In addition, do not include 

any ‘‘[t]rade secret or any commercial or 

financial information which . . . is 

privileged or confidential,’’ as discussed 

in Section 6(f) of the FTC Act, 15 U.S.C. 

46(f), and FTC Rule 4.10(a)(2), 16 CFR 

4.10(a)(2). In particular, do not include 

competitively sensitive information 

such as costs, sales statistics, 

inventories, formulas, patterns, devices, 

manufacturing processes, or customer 

names. 

If you want the Commission to give 

your comment confidential treatment, 

you must file it in paper form, with a 

request for confidential treatment, and 

you have to follow the procedure 

explained in FTC Rule 4.9(c), 16 CFR 

4.9(c).1 Your comment will be kept 

confidential only if the FTC General 

Counsel, in his or her sole discretion, 

grants your request in accordance with 

the law and the public interest. 

Postal mail addressed to the 

Commission is subject to delay due to 

heightened security screening. As a 

result, we encourage you to submit your 

comment online. To make sure that the 

Commission considers your online 

comment, you must file it at https://

ftcpublic.commentworks.com/ftc/

skimanufacturerconsent by following 

the instructions on the web-based forms. 

If this Notice appears at http://

www.regulations.gov/#!home, you also 

may file a comment through that Web 

site. 

If you file your comment on paper, 

write ‘‘Ski Manufacturers—Consent 

Agreement; File No. 121–0004’’ on your 

comment and on the envelope, and mail 

your comment to the following address: 

Federal Trade Commission, Office of the 

Secretary, 600 Pennsylvania Avenue 

NW, Suite CC–5610, (Annex D), 

Washington, DC 20580, or deliver your 

comment to the following address: 

Federal Trade Commission, Office of the 

Secretary, Constitution Center, 400 7th 

Street, SW., 5th Floor, Suite 5610, 

(Annex D), Washington, DC 20024. If 

possible, submit your paper comment to 

the Commission by courier or overnight 

service. 

Visit the Commission Web site at 

http://www.ftc.gov to read this Notice 

and the news release describing it. The 

FTC Act and other laws that the 

Commission administers permit the 

collection of public comments to 

consider and use in this proceeding as 

appropriate. The Commission will 

consider all timely and responsive 

public comments that it receives on or 

before June 18, 2014. You can find more 

information, including routine uses 

permitted by the Privacy Act, in the 

Commission’s privacy policy, at http:// 

www.ftc.gov/ftc/privacy.htm. 

Analysis of Agreement Containing 

Consent Order to Aid Public Comment 

The Federal Trade Commission has 

accepted, subject to final approval, an 

agreement containing consent order 

(‘‘Agreement’’) from Marker Vo ̈lkl 

(International) GmbH (‘‘Marker Vo ̈lkl’’) 

and a separate Agreement from Tecnica 

Group SpA. (‘‘Tecnica’’). Marker Vo ̈lkl 

and Tecnica are hereinafter sometimes 

referred to collectively as 

‘‘Respondents.’’ 

Respondents are manufacturers of 

various types of ski equipment. The 

Agreements settle charges that Marker 

Vo ̈lkl and Tecnica both violated Section 

5 of the Federal Trade Commission Act, 

15 U.S.C. 45, by agreeing with each 

other not to compete for the services of 

athlete endorsers and not to compete for 

the services of employees. 

The Agreements have been placed on 

the public record for 30 days for receipt 

of comments from interested members 


sroberts on DSK5SPTVN1PROD with NOTICES
30144 Federal Register / Vol. 79, No. 101 / Tuesday, May 27, 2014 / Notices 

2 In the Matter of Polygram Holding, Inc., et al., 

136 F.T.C. 310 (F.T.C. 2003), aff’d, 416 F.3d 29 

(D.C. Cir. 2005). See also North Texas Specialty 

Physicians v. FTC, 528 F.3d 346 (5th Cir. 2008); In 

the Matter of Realcomp II Ltd., A Corp.., 2009–2 

Trade Cas. (CCH) ¶ 76784 (F.T.C. Oct. 30, 2009). 

3See, e.g., United States v. Brown, 936 F.2d 1042 

(9th Cir. 1991); Mandeville Island Farms, Inc. v. 

Am. Crystal Sugar Co., 334 U.S. 219, 235 (1948). 

See also Todd v. Exxon Corp., 275 F.3d 191, 198 

(2d Cir. 2001) (stating that per se rule would ‘‘likely 

apply’’ to allegations of actual agreement among 

competitors to fix employee salaries); Knevelbaard 

v. Kraft Foods, Inc., 232 F.3d 979, 988–89 (9th Cir. 

2000) (‘‘Most courts understand that a buying 

cartel’s low prices are illegal. . . . Clearly mistaken 

is the occasional court that considers low buying 

prices pro-competitive or that thinks sellers 

receiving illegally low prices do not suffer antitrust 

injury.’’); NBA v. Williams, 45 F.3d 684, 687 (2d Cir. 

1995) (‘‘Absent justification under the Rule of 

Reason or some defense, employers who compete 

for labor may not agree among themselves to 

purchase that labor only on certain specified terms 

and conditions . . . Such conduct would be per se 

unlawful.’’); Vogel v. Am. Soc’y of Appraisers, 744 

F.2d 598, 601 (7th Cir. 1984) (Posner, J.) (‘‘[B]uyer 

cartels, the object of which is to force the prices that 

suppliers charge the members of the cartel below 

the competitive level, are illegal per se.’’); U.S. v. 

eBay, 968 F. Supp. 2d 1030 (N.D. Cal. 2013) 

(denying defendant’s motion to dismiss 

government’s claim that an agreement between 

employers not to solicit or hire each other’s 

employees was a naked restraint of trade subject to 

per se or quick look analysis). 

These cases must be distinguished from (1) noncompete agreements between employers and their 

employees and (2) a no-hire agreement between the 

seller of a business and its buyer. Non-compete or 

no-hire agreements in those contexts do not 

generally receive per se condemnation to the extent 

that the courts deem the restraints ancillary to a 

legitimate and procompetitive transaction. 

of the public. Comments received 

during this period will become part of 

the public record. After 30 days, the 

Commission will again review the 

Agreements and comments received, 

and will decide whether it should 

withdraw from the Agreements or make 

final the orders contained in the 

Agreements. 

The purpose of this Analysis to Aid 

Public Comment is to invite and 

facilitate public comment concerning 

the proposed orders. It is not intended 

to constitute an official interpretation of 

the Agreements and proposed orders, or 

in any way to modify their terms. 

The proposed orders are for 

settlement purposes only and do not 

constitute an admission by the 

Respondents that they violated the law 

or that the facts alleged in the 

Complaint, other than jurisdictional 

facts, are true. 

I. The Complaints 

This action addresses anticompetitive 

conduct in the ski equipment industry. 

The allegations of the Complaints are 

summarized below. 

A. Background 

Marker Vo ̈lkl and Tecnica 

manufacture, market, and sell ski 

equipment. The most effective and most 

costly tool for marketing ski equipment 

consists of securing endorsements from 

prominent ski athletes. 

Endorsement agreements between a 

ski equipment company and a ski 

athlete are typically of short duration, 

and are subject to renewal. Commonly, 

the ski athlete: (i) Authorizes the 

company to use the athlete’s name and 

likeness in promotions and in 

advertisements, (ii) agrees to use and 

promote the company’s equipment on 

an exclusive basis, (iii) agrees to display 

the company’s equipment when the 

athlete can attract media exposure, such 

as by holding up the skis at the end of 

a race, or taking the skis to the podium 

when receiving a medal, and/or (iv) 

agrees to appear at promotional events 

on behalf of the company. The 

association of a ski equipment brand 

with a prominent ski athlete generates 

sales, goodwill, and other benefits for 

the company. 

As consideration for the ski athlete’s 

endorsement services, the ski 

equipment company commonly 

provides the ski athlete with monetary 

compensation (keyed to the athlete’s 

success in competitions), support 

services at competitions, free or 

discounted equipment, and/or travel 

expenses. 

Ordinarily, ski equipment companies 

compete with one another to secure the 

endorsement services of prominent ski 

athletes. At the expiration of an 

endorsement agreement, a ski athlete 

can be induced to switch from one 

company to another in return for greater 

compensation, in much the same way 

that an employee can be induced to 

change employers in return for a higher 

salary or better benefits. 

Endorsement agreements are the 

primary source of income for 

professional ski athletes. 

B. The Marker Vo ̈lkl/Tecnica 

Collaboration 

In 1992, Marker Vo ̈lkl began 

collaborating with Tecnica in the 

marketing and distribution of certain 

complementary ski equipment: Vo ̈lkl 

brand skis, and Tecnica brand ski boots. 

Initially, these companies were not 

competitors: Tecnica did not have a ski; 

Marker Vo ̈lkl did not have a ski boot. 

In 2003, Tecnica acquired the Nordica 

ski equipment unit from Benetton 

Group SpA. Nordica manufactured and 

sold both skis and ski boots. Tecnica 

acquired a second ski manufacturer, 

Blizzard GmbH (‘‘Blizzard’’), in 2006. 

The ski brands acquired by Tecnica 

(Nordica and Blizzard brands) were not 

included in the Marker Vo ̈lkl/Tecnica 

collaboration. That is, Tecnica 

independently manufactures, markets, 

and distributes Nordica skis and 

Blizzard skis, in competition with Vo ̈lkl 

skis. 

C. The Challenged Conduct 

Marker Vo ̈lkl and Tecnica agreed not 

to compete with one another to secure 

the services of ski athletes and 

employees. 

Beginning in or about 2004, Marker 

Vo ̈lkl and Tecnica agreed not to 

compete with one another to secure the 

endorsement services of ski athletes. 

Specifically, Marker Vo ̈lkl agreed not to 

solicit, recruit, or contract with a ski 

athlete who previously endorsed 

Tecnica’s skis, or who was otherwise 

claimed by Tecnica. Tecnica agreed not 

to solicit, recruit, or contract with a ski 

athlete who previously endorsed Marker 

Vo ̈lkl’s skis, or who was otherwise 

claimed by Marker Vo ̈lkl. 

In 2007, Marker Vo ̈lkl and Tecnica 

agreed to expand the scope of their noncompete agreements. Marker Vo ̈lkl and 

Tecnica agreed not to compete for the 

services of any employee. Specifically, 

Marker Vo ̈lkl agreed not to solicit, 

recruit, or contract with any employee 

of Tecnica. Tecnica agreed not to solicit, 

recruit, or contract with any employee 

of Marker Vo ̈lkl. 

Marker Vo ̈lkl and Tecnica intended 

that these non-compete agreements 

would enable them to avoid bidding up 

(i) the cost of securing athlete 

endorsements, and (ii) the salaries paid 

to employees. 

Respondents’ conduct had the 

purpose, capacity, tendency, and likely 

effect of (i) restraining competition 

unreasonably, (ii) harming the economic 

interests of ski athletes, and (iii) 

harming the economic interests of the 

affected employees of Marker Vo ̈lkl and 

Tecnica. 

II. Legal Analysis 

The Complaint alleges that both the 

athlete non-compete agreement and the 

employee non-compete agreement 

violate Section 5 of the Federal Trade 

Commission Act, 15 U.S.C. 45. 

These agreements are appropriately 

analyzed under the framework 

articulated by the Commission in the 

Polygram case.2 Agreements between 

competitors not to compete for 

professional services, for employees, or 

for other inputs, are presumptively 

anticompetitive or inherently suspect, if 

not per se unlawful.3

When an agreement is deemed 

inherently suspect, a party may avoid 

summary condemnation under the 

antitrust laws by advancing a legitimate 


sroberts on DSK5SPTVN1PROD with NOTICES
Federal Register / Vol. 79, No. 101 / Tuesday, May 27, 2014 / Notices 30145 

4PolyGram Holding, Inc. v. FTC, 416 F.3d 29, 35– 

36 (D.C. Cir. 2005). 

5Cf., Federal Trade Comm’n and U.S. Dep’t of 

Justice, Antitrust Guidelines for Collaborations 

Among Competitors (2000) § 3.36(b). 

6See In the Matter of Polygram Holding, Inc., et 

al., 136 F.T.C. 310, 322, 357–63 (F.T.C. 2003). 

(cognizable and plausible) efficiency 

justification for the restraint.4

Here, the Commission finds reason to 

believe that the athlete non-compete 

agreement and the employee noncompete agreement serve no procompetitive purpose. More specifically, 

these restraints are not reasonably 

necessary for the formation or efficient 

operation of the marketing collaboration 

between Marker Vo ̈lkl and Tecnica. 

That the restraints are, at a minimum, 

overbroad is demonstrated by the fact 

that the agreements adversely affect 

competition for—and the compensation 

available to—athletes and employees 

who have no relationship with the 

collaboration.5 Further, Respondents 

cannot plausibly claim that the 

restraints serve to align the incentives of 

the companies in a manner that 

promotes the cognizable efficiency goals 

of their collaboration. Rather, the ski 

businesses of Tecnica (the Nordica and 

Blizzard brands) were at all times 

outside of and apart from the 

collaboration.6 In sum, the Respondents 

did not provide evidence demonstrating 

why Marker Vo ̈lkl and Tecnica cannot 

cooperate in the marketing of certain ski 

products, yet at the same time compete 

for the services of endorsers and 

employees. 

The athlete non-compete agreement 

and the employee non-compete 

agreement serve to protect Marker Vo ̈lkl 

and Tecnica from the rigors of 

competition, with no advantage to 

consumer welfare. The justifications for 

the non-compete agreements proffered 

by the Respondents were neither 

supported by the evidence nor 

cognizable under the antitrust laws. 

Because there is no plausible and 

cognizable efficiency rationale for the 

non-compete agreements, these 

inherently suspect agreements 

constitute unreasonable restraints on 

trade, and are properly judged to be 

illegal. 

III. The Proposed Orders 

The proposed Orders are designed to 

remedy the unlawful conduct charged 

against Respondents in the Complaints 

and to prevent the recurrence of such 

conduct. 

The proposed Orders enjoin Marker 

Vo ̈lkl and Tecnica from, directly or 

indirectly, entering into, or attempting 

to enter into, an agreement with a ski 

equipment competitor to forbear from 

competing for U.S. athletes to sign 

endorsement contracts for the 

company’s ski equipment. The proposed 

Orders also enjoin Marker Vo ̈lkl and 

Tecnica from entering into an agreement 

with a ski equipment competitor to 

forbear from competing for the services 

of any U.S. employee. A proviso to the 

cease and desist requirements allows 

reasonable restraints ancillary to a 

legitimate joint venture. 

The proposed Orders will expire in 20 

years. 

By direction of the Commission. 

Donald S. Clark, 

Secretary. 

[FR Doc. 2014–12046 Filed 5–23–14; 8:45 am] 

BILLING CODE 6750–01–P 

FINANCIAL STABILITY OVERSIGHT 

COUNCIL 

Proposed Collections; Comment 

Requests 

ACTION: Notice and request for 

comments. 

SUMMARY: The Financial Stability 

Oversight Council (the ‘‘Council’’) 

invites members of the public and 

affected agencies to comment on 

proposed and/or continuing information 

collections, as required by the 

Paperwork Reduction Act of 1995, 

Public Law 104–13 (44 U.S.C. 

3506(c)(2)(A)). The Council is soliciting 

comments concerning its collection of 

information related to its authority to 

designate financial market utilities as 

systemically important. Section 804 of 

the Dodd-Frank Wall Street Reform and 

Consumer Protection (the ‘‘Dodd-Frank 

Act’’) provides the Council the authority 

to designate a financial market utility 

(‘‘FMU’’) that the Council determines is 

or is likely to become systemically 

important because the failure of or a 

disruption to the functioning of the 

FMU could create, or increase, the risk 

of significant liquidity or credit 

problems spreading among financial 

institutions or markets and thereby 

threaten the stability of the United 

States financial system. On July 27, 

2011, the Council published in the 

Federal Register a final rule (12 CFR 

part 1320) that describes the criteria that 

will inform and the processes and 

procedures established under the DoddFrank Act for the Council’s designation 

of FMUs as systemically important 

under the Dodd-Frank Act. On July 18, 

2012, the Council designated eight 

FMUs as systemically important under 

Title VIII of the Dodd-Frank Act. The 

collection of information under 12 CFR 

1320.11 affords FMUs that are under 

consideration for designation, or 

rescission of designation, an 

opportunity to submit written materials 

to the Council in support of, or in 

opposition to, designation or rescission 

of designation. The collection of 

information under 12 CFR 1320.12 

affords FMUs an opportunity to contest 

a proposed determination of the Council 

by requesting a hearing and submitting 

written materials (or, at the sole 

discretion of the Council, oral testimony 

and oral argument). The collection of 

information in 12 CFR 1320.14 affords 

FMUs an opportunity to contest the 

Council’s waiver or modification of the 

notice, hearing, or other requirements 

contained in 12 CFR 1320.11 and 

1320.12 by requesting a hearing and 

submitting written materials (or, at the 

sole discretion of the Council, oral 

testimony and oral argument). The 

information collected from FMUs under 

12 CFR 1320.20 will be used by the 

Council to determine whether to 

designate an additional FMU or to 

rescind the designation of a designated 

FMU. 

DATES: Written comments must be 

received on or before July 28, 2014 to be 

assured of consideration. 

ADDRESSES: You may submit comments 

by any of the following methods: 

Mail: Attn: Request for Comments 

(Financial Stability Oversight Council 

Proposed Information Collection), Office 

of the Financial Stability Oversight 

Council, Department of the Treasury, 

1500 Pennsylvania Avenue NW., 

Washington, DC 20220. 

Electronic Submission: 

FSOC.Comments@treasury.gov 

Instructions: All submissions received 

must include the agency name and the 

Federal Register document number that 

appears at the end of this document. 

Comments received will be made 

available to the public via 

regulations.gov or upon request, without 

change, and including any personal 

information provided. 

FOR FURTHER INFORMATION CONTACT: 

Requests for additional information 

about the filings or procedures should 

be directed to Executive Director, 

Financial Stability Oversight Council, 

Department of the Treasury, 1500 

Pennsylvania Avenue NW., Washington, 

DC 20220. 

SUPPLEMENTARY INFORMATION: 

Title: Designation of Financial Market 

Utilities 

OMB Control Number: 1505–0239 

Abstract: The collection of 

information under 12 CFR 1320.11 

affords FMUs that are under 

consideration for designation, or 


sroberts on DSK5SPTVN1PROD with NOTICES