F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

G O L D M E D A L L L C, DB A Run Gum,

Plaintiff-Appellant

,

v

.

USA T R

A C K & F I E L D ; U

N I T E D S T A T E S O L

Y M P I C C O M M I T T E E , Defendants-Appellees. N o. 16-35488

D.C. No. 6:16-cv-00092- MC

OPI NI ON

A ppeal from the United States District Court for the District of Oreg on Michael J . McShane, District J udg e, Presiding

Arg ued and Submitted May 8, 2018 Portland, Oreg on

F iled Aug ust 7, 2018

B efore: Kim McL a

ne W ardlaw * , J ohnnie B . Rawlinson, and J acqueline H. Ng

uy en, Circuit J u d g es.

Opinion by

J u dg e Rawlinson; Concurrence by

J u dg e Ng uy en

* J u d g e Kim McL an e W ard law w as draw n to rep lace J u d g e Ma r vi n G a r b i s, w

h o retired af

ter o ral arg u m en t b u t b ef o re th is o p in i o n w as p u b lish ed . J u d g e W ard law h as read th e b rief s, rev iew ed th e reco rd , an d listen ed to o ral arg u m en t.G O L D M E D A L L L C V

. USA T R A C K & F I E L D 2

SUMMARY * *

Antitrust

The panel affirme d t h e district court’s dismissal of a complaint a l l e gi n g that USA Track & F ield and the United States Oly

mpics Committee eng a g ed in an anticompe t itive conspiracy i n violation of a ntitrust law by imposing advertising r estrictions during the Oly m p i c Trials for track and field athletes.

F ollowing the analy sis o f the Tenth and Eleventh Circuits, and disting uishing a decision of th e F ifth Circuit, the panel held that the Oly

mpics Committee and USATF were entitled
to implied antitrust immunity on t h e basis that their advertising restrictions were integ r al to p erformance of their duties u n der the Ted Stevens Oly mpic and Ama t eur Sports Act.

Concurring in the result, J udg e Ng uy en disag reed with the majority ’s conclusion that the defendants were immune from the antitrust c laim alleg e d in the complai n t

. J u dg e N g uy en wrote that the complaint n e v ertheless failed to state a claim under § 1 of the Sherman Act be c a u s e , even if the p laintiff could allege a plausible conspiracy and a v iable product market, it did not alleg e that the def e n d a n t s received any economic benefit.

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.G O L D M E D A L L L C V

. USA T R A C K & F I E L D 3

COUNSEL

Sathy a S. Gosselin (arg

ued), Swathi B ojedla, and Michael D

. Ha u sfeld, Hausfeld L L P, W a shing ton, D.C.; Timothy P. L andis, Timothy L andis P.C., Portland, Oreg on; for PlaintiffAppellant.

Derek L udwin (arg

ued) and Philip J

. L evitz

, C o ving ton & B urling L L P
, W ashing ton, D.C.; B ruce L

. Campbell, Miller Nash Graham & Du nn L L P, Portland, Oreg on; Doug las N

. Masters a

nd Emily S t o n e, L oeb & L oeb L L P, Chicag o, I l l i nois; Nathan J

. Muy skens, L oeb & L oeb L L P
, W a shing ton, D.C.; Robert E. Sabido, Cosg rave Vergeer Kester L L P, Portland, Oreg on; for Defendants-Appellees.

OP INION

RAW L I NSON, Circuit J udg e:

Appellant Gold Medal L L C d/b/a Run Gum (Run G um) appeals the district court’s o rder dismissing its complaint. Run Gum al l e g ed that Appellees USA Track & F ield (USATF ) and the U n i ted States Oly mpic Committee (Oly mpic Commit t e e) e ng ag ed in an anticompetitive conspiracy in v iolation of antitrust law by imposing advertising r e s t r i ctions during the Oly mpic Trials for track and field athletes. According to Run Gum, the district court erroneously determined that the Oly mpic Commi t t e e a

nd USATF should be afforded implied antitrust immunity on the basis that their advertising restr i c t i o ns were integ ral to p e r f o r mance of their duties u nder the Ted Stevens Oly mpic and Amateur Sports Act (ASA). See JES Props., Inc. v. USA Equestrian, Inc. , 458 F .3d 1224, 1226 (describing the ASA)G O L D M E D A L L L C V

. USA T R A C K & F I E L D 4

(Alarcon, C.J
., authoring judg e). Review i n g de novo , we affirm the judg ment of the district court.

I. BACK G ROUND

This appeal involves the statutory framework devised b y C ong r ess in support of the mission of national sport s g overning bodies to promote and finance the participation o f American athletes in “international a mateur a thletic competition.” 36 U.S.C. § 220503. Under the auspices of the ASA, the Oly

mpic Comm i t t e e e x e r c i s e s ex clusive jurisdiction over “all matters pertaining to United States participation in the Oly

mpic Games, the Paraly

mpic Games, and the Pan-American G ames, including representation of the United States in the g ames,” and “ the org aniz ation of the Ol y m p i c G ames, the Paraly mpic Games, a

nd the PanAmerican Games when held in the U nited States.” Id. at § 220503(3). W ith respect to amateur athletics, the Oly mpic Comm i t tee may “org aniz e , finance, and control the representation of the United States in t he competitions a nd
events of the Oly

mpic Games, the Paraly

mpic Games, and the Pan-American Games.” Id. at § 220505(c)(3). The Oly mpic Committee may also “obtain, directly or by deleg ation to the appropriate national g overning body

, amateur representation for those g ames.” Id.

I n its complaint, Run Gum, a m anufacturer o f “compresse d functional chewing g um” containing “a proprietary mix of caffeine, taurine, and b vitamins,” a verred that U SAT F
, as the national g overning b ody for the sport o f track and field, “org aniz es and hosts the Oly mpic T rials, whe r e the g reatest track [ and] field athletes in the United States compete to e arn a position on the U.S. Oly mpic team.” Run G um asserted tha t “[ g ] iven the unique n ature a ndG O L D M E D A L L L C V

. USA T R A C K & F I E L D 5

infrequency of the Oly

mpic Trials, the p ublic interest is overwhe l ming ,” with “ [i] n-person attendance ty pically

ex c e ed[ ing ] 20,000.”

Run Gum alleg ed that, despite its interest in sponsor ing athletes during the Oly

mp i c T rials, it was precluded from doing so due to log o and sponsorship restrictions imposed b y the Oly mpic Committee and enforced by USATF

. A ccording
to Run Gum, USATF “severely restrict[ s] the ty p e o f individual sponsors that track [ and] field athletes c an display

on their athletic a

pparel at the Oly

mpic Trials, including their competition kit, w hich g reatly d iminishes sp o nsorship opportunities f

or the athletes and e x cludes various would-be

s ponsors.” ( internal quotation marks omitted) (emphasis i n the orig inal). Run Gum complained that USATF ’s ad v e r tising restrictions p rovide that “ with the ex c eption o f standard manufacturers’ e quipment identif i c a t i on

. . . the equi p m e n t, uniforms, and the bibs/numbers of the competitors and officials at the Trials m a y n o t bear any commercial identification o r promotional materi a l o f a ny k i nd (whether commercial or noncommercial).” (alt e r a t ion a nd fo o t n o t e reference omitted). Run Gum asserted that the USA T F r eg ulation nonetheless allows athletes to wear apparel containing the log o and names of certa i n preapproved manufacturers, such as Nike.

Run G um maintained that use of pre-a p proved manufacturers “ex clude[ d] sco r e s of sponsors from the marketplace” in violation of S e c tion 1 of the Sherman Act. Run G um posed a sing le cause of a ction premised on violations o f the antitrust laws stemming from the challeng ed advertising r e s t rictions. Run G um contended that the

re gulation limiting sponsorships of a thletes during the Oly mpic Trials was “an a nticom petitive horiz ontal a ndG O L D M E D A L L L C V

. USA T R A C K & F I E L D 6

vertical ag reement among c ompetitors to fix artificially —and unlawfully

—the number of individual sponsors and the price paid to athletes for individual sponsorship.” Run Gum f urther alleg ed that the advert i s ing and log o restriction was “an unlawful g r oup boy cott o f individual sponsors that do not manufacturer [ sic] apparel o r equipment, w h i c h a re categ orically ex c luded from sponsoring athletes at the Oly mpi c T r i als.” I n addition to damag es, Run G um soug ht
to enjoin the Oly

mpic Committee and USATF from “preventing Run Gum from sponsoring individual athletes at the 2016 Oly

mpic Trials in e x chang e for sponsor identification on clothing at the Oly mpic Trials.”

I n a published o pinion, t h e d istrict court dismissed Run Gum’s action b ased o n implied antitrust immunity u nder the ASA. See Gold Medal LLC v. U S A Track & Field

, 1 87 F

. Supp. 3d 1219, 1 222 (D. Or. 2 016 )

. W hile acknowledg ing that g rants of implied antitrust immu n ity are g enerally disfavored, the district court nevertheless concluded that the advertising restrictions enabled the Oly mpic Committee a

nd USATF to perform their statutory oblig ations under the ASA. See id. a t 1228–30. The district court emphasiz ed that “[ a] s the only nation that does n o t p r ovide its Oly mpic team with federal funding or subsidies, the United States instead relies

on the [ Oly

mpic Committee] to r aise the financial resources
necessary to org aniz e T eam USA and t o compete in the Oly mpic Games.” I

d. a t 1228 (citation omitted). A ccording
to the district court, the a dvertising restrictions “prevent a dilution of the Oly

mpic brand,” and “permit the [ Oly mpic Committee] and USATF to play a g atekeeping function whi c h p reserves the ex c lusivity –and thus value–of the O l y mpic sy mbols and name.” Id. at 1230. Due to t h e i m p o rtance o f the advertising restrictions in advancing the Oly mpic mission, the district court h eld that the Oly mpicG O L D M E D A L L L C V

. USA T R A C K & F I E L D 7

Committee and USATF should be afforded implied antitrust immunity in enforcing the restrictions that were necessary to fulfillment of their statutory d uties under the ASA. See id. at 1231–32.

Run Gum filed a timely

notice of appeal.

II. STANDARDS OF REVIEW

“W e review d e novo the district court’s g rant of a motion
to dismiss.” Elmakhzoumi v. Sessions , 883 F .3d 1170, 1172 (9th Cir. 2018) (citation omitted).

“W e [ als o ] r e v iew de novo

. . . the d istrict court’s determinations of immunity from antitrust liability

. ” United Nat’l Maintenance, Inc. v. San Diego Convention Ctr

. , Inc.
, 766 F .3d 1002, 1006 (9th Cir. 2014) (citation omitted).

III. DISCUSSION

W e have recog niz ed that “implied antitrust immunity is
not favored, an d can be justified o nly by a convincing showing of clear repug nancy between the antitrust laws a nd the reg ulatory sy stem.” Total TV v

. Palmer Commc’ns, Inc.
, 69 F .3d 2 98, 3 0 2 n

. 6 (9th Cir. 1995) ( citation and alteration omitted). A lthoug h we h ave not d irectly addressed implied antitrust immunity u nder the ASA, other circuit courts have found the requisite “clear repug nancy ” between the ASA a nd antitrust laws. Id.

I n JE S P r o ps., Inc. v. USA E

questrian, I

nc. , 458 F .3d 1224 (11th Cir. 2 006), the Eleventh Circuit addressed a rule developed by the United States Equestrian F oundation (Equestrian F oundation) that imposed a mileag e distance forG O L D M E D A L L L C V

. USA T R A C K & F I E L D 8

e questrian competitions. See id. at 1226–27. The mileage rule g enerally required that a n y A-rated equestrian competitions on the same date b e h e ld a minimum o f 25 0 m i les apart. The Eleventh Circuit discerned the following two purposes for the rule: 1) “to concentrate elite riders into fewer competi t i o n s in o rder to y ield the most

com p e titive international e questrian team possible,” a nd 2) “to promote equestr i a n i sm n ationwide by forcing promoters to hold r ecog n iz ed c o mpetitions in more diverse locations.” Id. at 1227. The Eleventh Circuit reasoned that, due to “ the monolithic cont r o l ”ex ercised b y n ational
g overning bodies, “the question

. . . is w hether the a pplication of the antitrust l a w s t o the facts o f this case would unduly interfere with the o peration of t h e ASA.” Id. at 1231–32 (citation and internal quotation marks omitted). The Eleventh Circuit ex plained that it w o u l d “ not substitute its o wn judg ment for that of the [ Equestrian F oun d a t i on] reg arding the optimum way to f

ulfill its oblig atio n s , ” and concluded that “implied immunity [ was] called for in [ the] case.” Id. at 1232. I n reaching this conclusion, the El e venth Circuit emphasiz ed that, contrary to the plaintiffs’ assertions, it was
not required to “focus on whether t h e rule is an effective o r wise way of implement i ng [ the Equestrian F oundation’s] powers,” id. at 1231, o r t o “ consider whether the particular elig ibility r

ule wa s necessary or otherwise ex a mine the wisdo m o f the rule.” Id. at 1 232 ( emphasis in the orig inal). The E leventh Circuit held that “ [ b ] ecause the ASA requires [ a n ational g overning body ] to promulg a te rules to minimiz e conflicts in schedules, the imposition of antitrust liability for the promu l ga t ion of such a r ule is p lainly repug nant to the ASA.” Id. (alteration a

nd internal quotation marks omitted).

The Eleventh Circuit relied heavily on the Tenth Circuit’s approach in B ehagen v. Amateur Basketball As s ’ n o f theG O L D M E D A L L L C V

. USA T R A C K & F I E L D 9

United States
, 884 F .2d 524 ( 1 0 t h C i r

. 1989). See JES Props.
, 458 F .3d at 1231–32. I n Behagen , the Tenth Circuit reversed a jury verdict in favo r o f a basketball play er w ho challeng ed under the a n t i t rust laws an elig ibility rule developed by t h e n ational g overning body for amateur basketball that p r ohibite d a play er from participating in
amateur events i f t h e play er had participated in professional
g ames. See B ehagen

, 884 F .2d a t 5 26–27. The Tenth Circuit held that the a

ntitrust issue s h o u l d not h ave g one to the jury because the e lig ibility rule was ex empt from the antitrust laws under the ASA. S

ee id. a t 5 2 7. The Tenth Circuit emphasiz ed that “B ehag en compla i n s of ex actly that action

w h i ch the [ ASA] directs—the monolithic c ontrol of a n amateur sport by t h e [ n ational g overning body ] for that sport.” Id. at 529. The Tenth Circuit clarified that “the [ Amateur B a sketball A ssocia t i o n of the United States o f America] could not be authoriz ed under the [ ASA] u nless it

m a i n t a ined ex actly that deg ree of control over its sport that B ehag en here alleg es as an antitrust vi o l ation.” I d

. The Tenth Circ u i t emphasiz e d that “[ a] lthoug h [ a n ational
g overning b ody ] is a p rivate actor, t h e monolithic control

ex e r ted by [ a national g overning body ] over its amateur sport is a direct result of the congr e s s ional intent e x pressed in the Amateur Sports Act.” Id. at 528 (footnote reference omitted).

W e a re persu a d ed t h at we should follow the analy sis reflected in the decisions of o u r s ister circuits a pply ing implied antitrust immunity un d e r the ASA. W e a re not persuaded that the F ifth Circuit’s decision in Eleven Line, Inc.

v. N. Tex

. S t a t e Soccer A ss’n, I nc. , 213 F .3d 1 9 8 (5th Cir. 2000), mandates a reversal in t h is case. I n Eleven Line
, the F if t h C ircuit h eld that the ex clusionary activities of nonprofit, volunteer-run soc ce r org aniz ations should not be afforded implied antitrust immunity

. See id. at 199, 204–05.G O L D M E D A L L L C V

. USA T R A C K & F I E L D 10

The non-profit org aniz ation in that case promulg ated a nd implemented a rule requiring soccer play ers, coaches, a nd referees to cond u c t soccer g ames only at “sanctioned” facilities, which d id not include Eleven L ine’s for-profit

soc c e r facility

. Id. at 1 99. Notably

, the national g overning body for y outh soccer did not issue the challeng ed r ule o r

ex p licitly approve it. See id. at 204 & n .1. F or these reasons, Eleven Line is disting uishable from the present ap p e al, a s well as from JES Properties and Behagen

, becau s e i t involved a r u l e t hat was not sanctioned or approved by a national g overning body

, and the org aniz ation i m p o s ing the rule was the “ only nat i o n a l state association to have such a rule.” Id.

The F ifth Circuit r e c o gn iz e d the propriety of a pply ing implied antitrust immunity under the ASA when the rule, like the advertising and log o restriction before us in this case, is either developed or approved by a national g overning body :

Althoug h the facts of this case do not support

an implied ex emption from the antitrust laws,

an implied ex e mption would b e appropriate in
many other situations. F or ex a mple, if national state associations all over the country had a similar rule, one could infer that the rule

was necessary to the m an a gement of the sport.

. . . I f [ the n a tional g overning body ] h ad promulg ated the rule or ex pressly approved [ the] rule in such a way as to in d icate an

awareness of its c o n sequences, it would be a play er elig ibility rule ex e mpted under Behagen

. . . . Any of these c ircumstances, a nd

no doubt others not described h e re, would merit an implied ex emption.G O L D M E D A L L L C V

. USA T R A C K & F I E L D 11

Id. at 204–05.

The F ifth Circuit ex pressed its belief that “ Be hagen was correctly decided,” but recog niz ed that Behagen did not cover the facts o f Eleven Line

. I d. at 2 0 4

. Ultimately

, in E leven L i ne , the F ifth Circuit concluded that implied antitrust immunity was unav a ilable because the non-profit soccer org aniz ation “ promulg ated a rule that could be f ound nowhere else in the country , that was not ex plicitly approved by the [ the national g overning body ]
, and for wh i c h i t w a s unable to articulate a c onvincing rationale rel a t ed to its
manag ement of amateur soccer in the area.” Id. at 205.

W e conclude that the decisions of the Tenth and Eleventh Circuits p rovide a sound basis for a ffirming the district court’s application of implied a n titrust immunity to the advertising and log o r estrictions e n forced by the USATF

. Under the ASA, the respective nation al g overning body is auth o r i z e d t o “ o rga n i z e , finance, and control the representation of the United States in t he competitions a nd
events of the Oly

mpic Games, the Paraly

mpic Games, and the Pan-American Games, and o btain, directly o r by deleg ation
to the appropriate natio n a l g overning body

, amateur representation for those g a m e s

. ” 3 6 U .S.C. § 220505(c)(3). The ASA broadly g rants n ational g overning bodies ex clusive rig hts in “the name United States Oly mpic Committee,” “the
sy mbol of the I nternational Oly mpic Committee,” “the emblem of the corporation,” as well as “the words Oly mpic, Oly mpiad, Citius A ltius F ortius, Paraly mpic, Par aly

mpiad, Pan-American, America Espirito Sport F rate r n i te, o r any combination o f those words

. ” 3 6 U.S.C. § 220506(a) (internal quotation marks o mitted). I n lig ht of the broad authority bestowed upon national g overning bodies to fund the Oly mpic Mission, the challeng e d advertising a nd log oG O L D M E D A L L L C V

. USA T R A C K & F I E L D 12

r e strictions precluding advertisers from imping ing on thi s deleg ated authority f

alls within t h e mission to protect the value of c orporate sponsorships and max imiz e s a n c tioned fundraising

. To compel the Oly mpic Committee and USATF under the antitrust laws to permit a ny would-be advertiser to sponsor individual athletes without national g overning body approval “would unduly interfere with the operation o f t h e A S A.” JES Props.
, 4 58 F .3d at 1231–32 (citati o n a n d internal quotation marks omitted). Althoug h the statute does
not ex plicitly bestow antitrust immunity

, the ASA establishes funding for the Oly

mpic mission as a central responsibility o f the Oly mpic Commit t ee and its national g overning bodies. See San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm.
, 4 8 3 U.S. 522, 538–39 (1987) (recogniz ing that

ex c lusive rig hts in the term “Oly mpics” “di r e ctly advances

. . . g o vernmental interes t s b y supply ing the [ Oly mpic Committee] with the means to rai s e m o n ey to support the Oly mpics and encourag es the [ Oly mpic C o mmittee’s] activities b y ensuring that it will r eceive the benefits of its efforts”); see also Behagen

, 884 F .2d a t 5 2 9 (“Althoug h the Amateur Sports Act does not contain a n e x p l icit statement

ex e mpting action taken under its direction from the federal antitrust laws, we find that the directives of the Act make the intent of Cong ress suf

f i c i ently clear.

. . .”) (citation a nd footnote reference omitted).

The ana l y s i s o f our sister circuits that we now adopt is consistent w ith the ex press purpose of the ASA. As noted b y the United St a t e s Supreme Court, the ASA was “enacted to correct the disorg aniz ation and the serious factional disputes that s e em e d to plag ue a mateur sports in the United States.” San Francisco Arts & A t h l e t i c s , 483 U.S. at 544 (quoting H.R. Rep. N o. 95-1627, p. 9, U.S. Code Cong

. & Admin. News 1978 p. 7482). As d isc u s sed, the Supreme Court hasG O L D M E D A L L L C V

. USA T R A C K & F I E L D 13

c larified that it was the intent of Cong ress that the Oly m p i c Committee be p r o v ided “with the means to raise money to support the Oly

mpics,” including the “comme r c i a l a nd promotional value d erived from the panache associated with the Oly mpics.” Id. a t 532–33. S i m i larly to the plaintiff in Behagen

, Run Gum “complains of ex actly that action which the [ ASA] d irects

— t h e monolithic control of an amateur sport b y the [ national g overning body ] for that sport,” Behag e n , 884 F .2d a t 529, as a “direct result of the
cong ressional intent ex presse d in the [ ASA] .” Id. at 528 (footnote reference omitted).

F inally

, Run Gum contends that the district court eng ag ed in improper f

act-finding that the a dvertising and log o restrictions prevented dilution of the Oly mpic brand. Run Gu m s pecifically maintains that the district court’s f actual finding s c ontradicted its a lleg ations that must be taken as true at the dis m issal stag e. However, the district court’s analy sis

was not premised on a

ny improper factu al finding s, as the district court merely made the obvious and common-sense observation that elimination o f the a d vertising r e strictions would dilute the Oly

mpic b rand. See San F

r a n c i sco Arts & Athletics

, 4 83 U.S. at 532–33; s e e a lso Gold Medal

, 187 F

. Supp. 3d at 1 230 (noting that Run Gum soug ht “to c apitaliz e

on the unique nat u re of the Oly mpic B rand” a

nd that the national g overning body

soug ht to “prevent a d ilution of the Oly mpic B rand”). 1

1 B e c au se w e co n clu d e t h at th e Oly

m p ic Co m m ittee an d USA T F sh o u ld b e af

f o rd ed im p lied an titru st im

m u n ity

, w e d o n o t reach th e altern ativ e arg u m en t raised b y th e Oly m p ic Co m m ittee an d USA T F th at Ru n Gu m f ailed to s u f

f icien tly alleg e th e req u isite relev an t m ark et f or

an titru s t in

j u ry

.G O L D M E D A L L L C V

. USA T R A C K & F I E L D 14

IV. CONCLUSION

Consistent with the p urpose of the AS A
, and the analy tical framework r eflected in Behagen a nd JES Properties
, we conclude that the advertising and log o restrictions applied by the O ly m p ic Committee and USATF
to s p o n s orship o f individual athletes during the Oly mpic Trials should be afforded implied antitrust immuni t y under the A SA. The district court properly applied implied antitrust immunity und e r the ASA in dismissing Run Gum’s complaint based on the “convincing sh o w i ng of clear repug nancy between the antitrust laws” and the provisions of the ASA to advance the Oly

mpic Committee’s mission to fund a nd administer Oly

mpic events. Total TV

, 69 F

. 3d a t 3 02 n.6 (citation omitted). A s t he district c ourt observed, an injunction preventing enforcement of the advertisement
reg ulation “would open the f loodg ates” to potent ial advertisers, some of which mig ht enhance the Oly mpic brand and some of which mig ht devalue the O ly mpi c b r and. See Gold M edal LLC
, 187 F

. Supp. 3d at 1230. T h e reg ulation avoids placing the O ly

mpic Committee in the unenviable position of having to face this c o nundrum in fulfilling its mission to finance American Oly mpic athletes. W e thus view the reg u lation as protected from a n titrust c halleng e

. See Behagen

, 884 F .2d at 529 (connectin g i m p lied antitrust immunity with Cong ressional intent for the ASA). As made evident by the Ele v e n L i ne d ecision, application of implied antitrust immunity is not lim i tless. However, we a re persuaded that the facts of this case fall co m fortably within the f ramework contemplated by Cong ress when it enacted the ASA

. S ee San Francisco Arts & Athletics

, 483 U.S. at 538–39 (disc u s s ing Cong ressional intent to supply the O l y m p ic Committee w ith “ the means to raise money toG O L D M E D A L L L C V

. USA T R A C K & F I E L D 15

support the Oly

mpics” and “ensuring that the [ Oly mpic Committee] will receive the benefit of its efforts”).

AF F IRMED.

NGUYEN, Circuit J u dg e, concurring in the result:

Respectfully

, I disag ree with the majority ’s conclusion that defendants are immune from the antitrust claim alleg ed in the complaint. As the majorit y c orrectly recog niz es, “[ i] mplied antitrust immunity is not f a v o r ed, and can be j u s t i f ied only by a convincing showing of clear repug nancy between the antitrust laws and the reg ulatory sy stem.” United States v. Nat’l Ass’n o

f Sec. Dealers, Inc.
, 422 U.S. 694, 719 (1975). W e therefore don’t analy z e c onflict between antitrust and other laws at a hig h level of g enerality

. See Silver v. N.Y

. Stock Exch.

, 373 U.S. 3 41, 357 (1963) (rejecting approach in which an o rg ani z a t ion’s “g eneral power to adopt rules” renders “particular applications of such rules . . . outside the purview of the antitrust laws.”). “[ T] he proper approach

. . . is an analy sis which reconciles the operation of both statutory schemes with one another r ather than holding one completely ousted.” Id. at 357.

The antitr u s t c laim here involves a narrow ex c eption allow i n g a thletes to wear apparel w ith the manufacturer’s log o notwithstanding a g ene r a l r ule prohibiting sponsorship and advertising on their c lothe s. The purpose of this

ex c e ption, a ccording to defendants, is “to per m it a thletes to purchase a n d wear store-boug ht apparel they preferred a nd could afford.” I t has nothing to do with defendants’ statutory rig ht “to ex ercise e x clusive jurisdiction” over “ a ll mattersG O L D M E D A L L L C V

. USA T R A C K & F I E L D 16

pertaining to United States participation i n the Oly mpic Games,” 36 U.S.C

. § 220503(3)(A), to “authoriz e contributors and suppliers of g oods or services to use” Oly mpic marks, id. § 220506(b), or to otherwise “finance

. . . the Oly mpic Games,” id. § 220505(c)(3).

W h ile the rule ba n n i n g advertising on athletic apparel
may serve a revenue-raising

purpose by protecting the value of the Oly

mpic brand, it is t h e ex ception—not the rule—at issue here. Run Gum’s all e g ations don’t sug g est that defendants profit from the ex ception. 1 B ut nei t h e r d o they establish a v iable p roduct market. See Hicks v

. P G A Tour, Inc.
, No. 16-15370, slip op. at 25–30 (9th Cir. J uly 27, 2018). T herefore, while implied antitrust immunity does not appl y , Run G um nevertheless has failed to a lleg e an antitrust c laim.

Ru n Gum normally would be e n titled to amend its pleading s, see id. a t 3 1–32, but here a n y a m endment would be futile. Even if Run G um can a lleg e a p lausible conspiracy and a v iable product market, its antitr u s t claim is still untenable. Either defendants receiv e d no economic benefit, in which ca se the apparel manufacturer ex ception is nonactionable, see O’Bannon v. Nat’l Collegiate Ath l e t i c Ass’n
, 802 F .3d 1049, 1065–66 (9th C ir. 2015), or they a re

ex e r cising their statutory rig h t to finance the O ly mpic Games with implied immunity

from suit.

1 T h e o n ly en tities alleg ed to p ro f it f ro m th e ex cep tio n are th e ap p arel

m an u f actu rers, w

h o co m p ete f o r ad v ertisin g sp ace o n ath letes’ ap p arel

w ith f ew er p o t en tial riv als, th u s su p p ressin g th eir ad v ertisin g co sts. W h i le it is p ossib le th at def

en d an ts in d ir e c t l y p ro f

i t f ro m th e ex cep tio n b y

co n sp irin g w ith th e ap parel m an u f actu rers , Ru n Gu m ’ s co n clu so ry alleg atio n s d o n o t p lau s i b ly sh o w th is o r an y o th er co n sp iracy

. S ee Bell Atl. Co rp . v. Two mb ly , 5 5 0 U.S. 5 4 4 , 5 6 9 (2 0 0 7 ).G O L D M E D A L L L C V

. USA T R A C K & F I E L D 17

Therefore, I concur in the result affirmi n g t he district court’s dismissal of Run Gum’s complaint with prejudice.