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Bruce L. Campbell, P.C., OSB No. 925377

bruce.campbell@millernash.com

MILLER NASH GRAHAM & DUNN LLP

3400 U.S. Bancorp Tower

111 S.W. Fifth Avenue

Portland, Oregon 97204-3699

Telephone: (503) 224-5858

Facsimile: (503) 224-0155

Derek Ludwin (admitted pro hac vice)

dludwin@cov.com

Alexander E. Ramey (admitted pro hac vice)

aramey@cov.com

COVINGTON & BURLING LLP

One CityCenter

850 Tenth St. NW

Washington, D.C. 20001

Telephone: (202) 662-5429

Facsimile: (202) 778-5429

Attorneys for Defendant

United States Olympic Committee

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

Eugene Division

GOLD MEDAL LLC d/b/a RUN GUM,

Plaintiff,

v.

USA TRACK & FIELD and UNITED 

STATES OLYMPIC COMMITTEE,

Defendants.

No. 6:16-cv-00092-MC

DEFENDANT UNITED STATES 

OLYMPIC COMMITTEE’S MOTION

TO DISMISS AND MEMORANDUM IN 

SUPPORT

(Pursuant to Fed R Civ P 12(b)(6))

ORAL ARGUMENT REQUESTED

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TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................................................ ii

LOCAL RULE 7-1 CERTIFICATION .......................................................................................... 1

LOCAL RULE 7-2 CERTIFICATION .......................................................................................... 1

THE USOC’S MOTION TO DISMISS PURSUANT TO RULE 12(b)(6)................................... 1

MEMORANDUM OF LAW IN SUPPORT OF THE USOC’S MOTION TO DISMISS............ 1

I. The Ted Stevens Olympic and Amateur Sports Act Immunizes the Challenged 

USOC Rule. ......................................................................................................................... 2

II. The Complaint Fails To State A Claim Under the Antitrust Laws. ................................. 7

A. Run Gum Has Not Alleged a Plausible Agreement in Restraint of Trade. .................. 7

B. Run Gum Has Not Alleged a Plausible Relevant Market. ........................................... 9

C. Run Gum Has Not Alleged a Per Se Violation of the Antitrust Laws. ...................... 14

CONCLUSION............................................................................................................................. 16

CERTIFICATE OF SERVICE.......................................................................................................A

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TABLE OF AUTHORITIES

Page(s)

Cases

Adidas Am., Inc. v. Nat’l Collegiate Athletic Ass’n,

64 F. Supp. 2d 1097 (D. Kan. 1999)............................................................................11, 12, 13

Am. Airlines v. Christensen,

967 F.2d 410 (10th Cir. 1992) ...................................................................................................8

Apple, Inc. v. Psystar Corp.,

586 F. Supp. 2d 1190 (N.D. Cal. 2008).............................................................................10, 13

Behagen v. Amateur Basketball Ass’n of the United States,

884 F.2d 524 (10th Cir. 1989) ...............................................................................................5, 6

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007).........................................................................................................2, 7, 15

Beutler Sheetmetal Works v. McMorgan & Co.,

616 F. Supp. 453 (N.D. Cal. 1985)............................................................................................8

Blizzard Ent., Inc. v. Ceiling Fan Software LLC,

941 F. Supp. 2d 1227 (C.D. Cal. 2013) ...................................................................................10

Bushie v. Stenocord Corp.,

460 F.2d 116 (9th Cir. 1972) ...................................................................................................10

Cal. Dental Ass’n v. FTC,

526 U.S. 756 (1999).................................................................................................................14

Colonial Med. Grp., Inc. v. Catholic Health Care W.,

444 F. App’x 937 (9th Cir. 2011)........................................................................................9, 10

Dimidowich v. Bell & Howell,

803 F.2d 1473 (9th Cir. 1986) opinion modified on denial of reh’g, 810 F.2d 

1517 (9th Cir. 1987).................................................................................................................14

Eleven Line, Inc. v. N. Texas State Soccer Ass’n, Inc.,

213 F.3d 198 (5th Cir. 2000) .....................................................................................................5

Hicks v. PGA Tour, Inc.,

No. 15-CV-00489-VC, Dkt. No. 106 (N.D. Cal. Feb. 9, 2016)...................................11, 12, 13

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Int’l Healthcare Mgmt. v. Haw. Coal. for Health,

332 F.3d 600 (9th Cir. 2003) ...................................................................................................14

JES Properties, Inc. v. USA Equestrian, Inc.,

458 F.3d 1224 (11 Cir. 2006).................................................................................................5, 6

Kendall v. Visa U.S.A., Inc.,

518 F.3d 1042 (9th Cir. 2008) .............................................................................................7, 14

In re Musical Instruments & Equip. Antitrust Litig.,

798 F.3d 1186 (9th Cir. 2015) ...........................................................................................14, 16

Monsanto Co. v. Spray-Rite Serv. Corp.,

465 U.S. 752 (1984)...................................................................................................................8

Name.Space, Inc. v. Internet Corp. for Assigned Names & Numbers,

795 F.3d 1124 (9th Cir. 2015) .................................................................................................14

Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of Okla.,

468 U.S. 85 (1984)...................................................................................................................14

Newcal Indus., Inc. v. Ikon Office Sol.,

513 F.3d 1038 (9th Cir. 2008) .............................................................................................9, 10

NYNEX Corp. v. Discon, Inc.,

525 U.S. 128 (1998).................................................................................................................15

Right Field Rooftops, LLC v. Chicago Baseball Holdings, LLC,

87 F. Supp. 3d 874, 886 (N.D. Ill. 2015)...........................................................................12, 13

Rio Grande Royalty Co. v. Energy Transfer Partners, L.P.,

786 F. Supp. 2d 1190 (S.D. Tex. 2009).....................................................................................8

San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm.,

483 U.S. 522 (1987)...................................................................................................................3

Spinelli v. Nat’l Football League,

2015 WL 1433370 (S.D.N.Y. Mar. 27, 2015).............................................................10, 11, 13

Tanaka v. Univ. of S. Cal.,

252 F.3d 1059 (9th Cir. 2001) .................................................................................9, 11, 13, 14

Toscano v. Prof’l Golfers Ass’n,

258 F.3d 978 (9th Cir. 2001) .............................................................................................7, 8, 9

Case 6:16-cv-00092-MC Document 41 Filed 02/26/16 Page 4 of 23
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TYR Sport, Inc. v. Warnaco Swimwear, Inc.,

679 F. Supp. 2d 1120 (C.D. Cal. 2009) .....................................................................................5

U.S. Olympic Comm. v. Intelicense Corp., S.A.,

737 F.2d 263 (2d Cir. 1984)...............................................................................................3, 5, 6

William O. Gilley Enters., Inc. v. Atl. Richfield Co.,

588 F.3d 659 (9th Cir. 2009) ...............................................................................................7, 15

Statutes

36 U.S.C. § 220503(3)(A)............................................................................................................3, 8

36 U.S.C. § 220505(c)(3).........................................................................................................3, 4, 8

36 U.S.C. § 220505(c)(4).................................................................................................................4

36 U.S.C. § 220506(a)(2)-(4)...........................................................................................................3

36 U.S.C. § 220521(a) .....................................................................................................................4

36 U.S.C. § 220523(a)(5), (a)(6)......................................................................................................4

Other Authorities

LR 7-2(b) .........................................................................................................................................1

Fed. R. of Civ. P. 12(b)(6) .........................................................................................................1, 10

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LOCAL RULE 7-1 CERTIFICATION

Counsel for defendant the United States Olympic Committee, Covington & Burling LLP 

and Miller Nash Graham & Dunn LLP, conferred with counsel for plaintiff about the dispute 

through a telephone conference, but the parties have been unable to resolve the dispute.

LOCAL RULE 7-2 CERTIFICATION

This memorandum complies with the requirements of LR 7-2(b).

THE USOC’S MOTION TO DISMISS PURSUANT TO RULE 12(b)(6)

In accordance with Fed. R. Civ. P. 12(b)(6), the USOC moves to dismiss the complaint 

because it fails to state a claim on which relief can be granted. 

MEMORANDUM OF LAW IN SUPPORT OF THE USOC’S MOTION TO DISMISS

The United States Olympic Committee exists to help U.S. athletes achieve sustained 

competitive excellence at the Olympic and Paralympic Games. To fund that mission, the USOC 

has long had exclusive authority and responsibility to use the Olympic brand to generate 

sponsorship and other financial revenues. Without regard to the USOC’s obligation to protect the 

Olympic brand for the benefit of all U.S. athletes, Run Gum—a manufacturer of chewing gum—

seeks to insert its product advertisements onto the field of competition and into the live telecasts

of the 2016 Olympic Trials. Run Gum asserts that it seeks this advertising “opportunity” to 

secure the significant value of associating its products with the Olympic brand. In other words, 

Run Gum seeks to free ride on the USOC’s activities and to appropriate for its own commercial 

purposes the brand, goodwill, and popular audience of the Olympic Trials. That effort lacks any 

legal support, and it threatens the ability of the USOC to deliver on its mission.

At its heart, the complaint challenges the United States Olympic Committee’s control 

over the Olympic brand in the United States—the fundamental statutory right granted by 

Congress to allow the USOC to fulfill its mission and honor its responsibilities to American 

athletes. Run Gum seeks to overturn the USOC’s decision to prohibit athletes competing at the 

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Olympic Trials from displaying any third-party commercial brands (other than standard 

manufacturers’ equipment identification and local club marks) on their competition attire. But 

that USOC requirement, imposed on USA Track & Field as a condition of its production of the 

Olympic Trials, is protected by long-recognized principles of implied immunity: The Ted 

Stevens Olympic and Amateur Sports Act grants the USOC exclusive control over the Olympic 

brand in the United States precisely so that the USOC can generate funds to support U.S. 

Olympic athletes. The rule challenged in the complaint was implemented in exercise of that 

statutory authority, is necessary to the USOC’s activities, and lies beyond the reach of the 

antitrust laws.

Even without statutory protection, nothing in the federal antitrust laws provides a basis 

for the complaint. In particular, the complaint fails to meet two of the fundamental prongs of an 

antitrust claim: It does not properly allege an agreement in restraint of trade; and it does not 

allege a plausible “relevant market” in which to evaluate the alleged effects of the challenged 

activities. The impossibly narrow, single-event alleged “relevant market” in the complaint—a 

particular type of advertising (a third-party logo on an athlete’s attire) at one particular location 

(the field of competition) during one particular event (the 2016 Track & Field Olympic Trials)—

is at odds both with common sense and with Run Gum’s own descriptions of the other 

advertising opportunities that it enjoys. 

Finally, the offhand allegations that Run Gum was subject to a per se unlawful “boycott” 

by a group of unnamed apparel manufacturers cannot save the complaint. Run Gum fails to 

allege even the most rudimentary facts about the alleged conspiracy, and fails the Supreme 

Court’s Twombly standard for pleading a plausible claim.

I. The Ted Stevens Olympic and Amateur Sports Act Immunizes the Challenged 

USOC Rule. 

In the Amateur Sports Act of 1978—revised in 1998 as the Ted Stevens Olympic and 

Amateur Sports Act (the “ASA”)—Congress granted the United States Olympic Committee 

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(“USOC”) “exclusive jurisdiction, directly or through constituent members or committees, over . 

. . all matters pertaining to United States participation in the Olympic Games . . .” 36 U.S.C. 

§ 220503(3)(A) (2012). As part of that authority, the ASA directs the USOC to “organize, 

finance, and control the representation of the United States in the competitions and events of the 

Olympic Games, . . . and obtain, directly or by delegation to the appropriate national governing 

body, amateur representation for those games.” 36 U.S.C. § 220505(c)(3). 

Although Congress charged the USOC with the responsibility to finance the U.S. 

participation in the Olympics, the USOC does not receive financial assistance from the United 

States Government. See U.S. Olympic Comm. v. Intelicense Corp., S.A., 737 F.2d 263, 266 (2d 

Cir. 1984) (“the USOC is the only NOC [National Olympic Committee] that does not receive 

formal financial assistance from the Government” (emphasis added)). Instead, Congress granted 

the USOC the exclusive U.S. rights to the Olympic Rings, the emblem of the United States 

Olympic Committee, and the words “Olympic” or “Olympiad” in any combination. 36 U.S.C. 

§ 220506(a)(2)-(4). 

As the Supreme Court has explained, the unambiguous intent of Congress in granting the 

USOC exclusivity over the Olympic brand was to generate revenue to finance the United States 

involvement in the Olympic Games. See San Francisco Arts & Athletics, Inc. v. U.S. Olympic 

Comm., 483 U.S. 522 (1987). Section 220506(a) of the ASA “directly advances” Congress’s 

interest in “promoting, through the activities of the USOC, the participation of amateur athletes 

from the United States” in the Olympic Games “by supplying the USOC with the means to raise 

money to support the Olympics and encourages the USOC’s activities by ensuring that it will 

receive the benefits of its efforts.” San Francisco Arts, 483 U.S. at 538-391

; see also Intelicense 

Corp., 737 F.2d at 266 (“financing the United States Olympic team poses unique obstacles” and 

“[c]onsequently, the marketing of the Olympic symbol in the United States assumes great 

 1 The Supreme Court referenced the 1978 version of the Amateur Sports Act, which is identical 

in relevant part to the revised statute.

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importance”; “[p]rotecting the value of the Olympic symbol was, therefore, a significant factor 

that led to passage of the [ASA]” (citing 124 Cong. Rec. H10,754 (daily ed. Sept. 26, 1978)

(remarks of Rep. Danielson)).

Under the ASA, the power and duty to obtain U.S. representation for the Olympic Games 

fall squarely on the USOC. 36 U.S.C. § 220505(c)(3). The USOC is empowered to designate a 

“National Governing Body” (“NGB”) for each sport, which may then (a) “conduct amateur 

athletic competition, including national championships,” (b) “establish procedures for 

determining eligibility standards for participation in competition,” and (c) “recommend 

individuals” to participate in the Olympics as part of Team USA. Id. at §§ 220523(a)(5), (a)(6). 

These responsibilities pass to NGBs like USA Track & Field (“USATF”) only by explicit 

authority from the USOC. Id. at § 220505(c)(4). Here, the USOC designated USATF as the NGB 

for track and field, and granted USATF the authority to host an “Olympic Trials” event to obtain 

athlete representation for the Olympic Games. Compl. ¶ 25; see 36 U.S.C. § 220521(a). 

As a condition for branding its event the “2016 Olympic Trials,” the USOC required 

USATF to conduct the event subject to conditions protecting the USOC’s prerogatives under the 

ASA. Specifically, and as alleged in the complaint, the USOC required USATF to implement the 

following regulation: 

With the exception of standard manufacturers’ equipment 

identification permitted by Rule 50 of the Olympic Charter . . . , 

the equipment, uniforms and the bibs/numbers of the competitors 

and officials at the Trials may not bear any commercial 

identification or promotional material of any kind (whether 

commercial or noncommercial).

Compl. Ex. 1, at 2, ¶ 35. Run Gum challenges this regulation to the extent that it precludes a 

third-party such as Run Gum from placing its advertising on athletes’ attire during the Olympic 

Trials competition.

Run Gum’s challenge is fatally flawed. That is because the Ted Stevens Olympic and 

Amateur Sports Act affords implied immunity from antitrust challenges that would “unduly 

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interfere” with the “operation” of the statute. JES Properties, Inc. v. USA Equestrian, Inc., 458 

F.3d 1224, 1231 (11th Cir. 2006) (citing Gordon v. N.Y. Stock Exch., 422 U.S. 659, 686 (1975)); 

accord Eleven Line, Inc. v. N. Texas State Soccer Ass’n, Inc., 213 F.3d 198, 204-05 (5th Cir. 

2000); Behagen v. Amateur Basketball Ass’n of the United States, 884 F.2d 524, 530 (10th Cir. 

1989). “Although the Amateur Sports Act does not contain an explicit statement exempting 

action taken under its direction from federal antitrust laws, . . . the directives of the Act make the 

intent of Congress sufficiently clear” that it does create such an exemption. Behagen, 884 F.2d at

529.

Courts have interpreted the ASA to immunize regulations “necessary to implement the 

clear intent of Congress.” Id. at 530. “[I]t is clear that the Congressional intent in enacting [the 

ASA] was to promote the United States Olympic effort by entrusting the USOC with unfettered 

control over the commercial use of Olympic-related designations” to “facilitate the USOC’s 

ability to raise those financial resources from the private sector that are needed to fund the 

United States Olympic Movement.” Intelicense Corp., 737 F.2d at 266. Run Gum’s challenge to 

the USOC’s control over the Olympic brand conflicts directly with the ASA’s provisions and 

recognized statutory purpose. See JES Properties, 458 F.3d at 1231 (rule prohibiting 

competitions within 250 miles on the same day fell within “control” granted by Congress to 

NGB); see also TYR Sport, Inc. v. Warnaco Swimwear, Inc., 679 F. Supp. 2d 1120, 1133 (C.D. 

Cal. 2009) (noting “persuasive authority” that “the ability to offer exclusive rights to corporate 

sponsors is fundamental to the Olympic movement”).2

 2 The TYR court concluded that, in contrast to the provision at issue here, an agreement between 

USA Swimming (an NGB) and Speedo, a private actor, did “not involve the promulgation of a 

rule, but rather a pattern of commercial conduct aimed at selling products for a corporate 

sponsor.” 679 F. Supp. 2d at 1135. The plaintiff in TYR was found not to be challenging USA 

Swimming’s model of exclusive sponsorship “per se,” but rather the aspects of a particular 

sponsorship which had USA Swimming itself act “as a promoter” and sales agent for Speedo —

including by hiring a Speedo-affiliated coach for the U.S. Team and by, through the coach, 

“mak[ing] false statements” to athletes on Speedo’s behalf. Id. at 1134.

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The complaint seeks to invalidate and enjoin the USOC “rules, regulations, and 

agreements” that require USATF to enforce competition attire restrictions at the Olympic Trials. 

Run Gum seeks to capitalize on “the unique marketing possibilities and aura provided by the 

Olympic Trials”—an event that it describes as “a hallowed opportunity to witness, every four 

years, who will go on to the Olympic Games to represent the United States” (Compl. ¶ 45)—by 

undermining the process through which USOC generates revenues to support U.S. athletes. In so 

doing, Run Gum seeks to use the antitrust laws to frustrate the purpose of Congress.

Simply put, “if the USOC could not grant exclusive rights to market the Olympic symbol, 

the number of corporate participants would be greatly reduced and the USOC would find itself 

unable to raise the funds required for participation in the Olympic Movement.” Intelicense Corp., 

737 F.2d at 266 (collecting cases for the proposition that one purpose of ASA was “to insure the 

market value of licenses”). A free-for-all system in which any company could associate its marks 

with the Olympic brand would necessarily dilute the value of USOC sponsorships. That would 

undercut the mechanism Congress intended to finance the Olympic Movement in the United 

States, and lead directly to less funding for the U.S. athletes participating in the Olympic and 

Paralympic movement.

In considering antitrust challenges to rules promulgated under the ASA, courts have not 

been willing to “substitute [their] own judgment for that of the [USOC or NGB] regarding the 

optimum way to fulfill its obligations;” nor have they “otherwise examine[d] the wisdom of the 

rule.” JES Properties, 458 F.3d at 1232 (citing Behagen, 84 F.2d at 524-30); see also id. (citing 

Gordon, 422 at 688) (the “wisdom of [the rule] becomes relevant only when it is determined that 

there is no antitrust immunity”). Without restrictions on the type of third-party advertising sought

by Run Gum, commercial brands would—as Run Gum openly seeks to do—free ride on the 

Olympic brand, thereby diluting the USOC’s congressionally-granted exclusivity and 

undermining its ability to deliver on its mission. Run Gum’s claims run directly afoul of the 

implied immunity granted to the USOC’s regulations, and the complaint should be dismissed for 

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that reason alone.

II. The Complaint Fails To State A Claim Under the Antitrust Laws.

Even absent immunity, the complaint should be dismissed because it fails to state a claim 

under the antitrust laws. “On a motion to dismiss in an antitrust case, a court must determine 

whether an antitrust claim is ‘plausible’ in light of basic economic principles.” William O. Gilley 

Enters., Inc. v. Atl. Richfield Co., 588 F.3d 659, 662 (9th Cir. 2009) (quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 556 (2007). That in turn requires the plaintiff to plead “not just ultimate 

facts . . . but evidentiary facts.” Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1047 (9th Cir. 

2008). Further, recognizing “the unusually high cost of discovery in antitrust cases,” the 

Supreme Court has directed district courts to apply pleading requirements rigorously in order to 

avoid the time and cost associated with litigating “largely groundless claim[s].” Twombly, 550 

U.S. at 558-59; see Kendall, 518 F.3d at 1047 (“discovery in antitrust cases frequently causes 

substantial expenditures and gives the plaintiff the opportunity to extort large settlements even 

where he does not have much of a case”). Run Gum’s claims are neither plausible nor grounded 

in evidentiary facts.

A. Run Gum Has Not Alleged a Plausible Agreement in Restraint of Trade.

The threshold requirement for a claim under Section 1 of the antitrust laws is “concerted 

action of more than a single entity,” i.e., an agreement in restraint of trade. Toscano v. Prof’l 

Golfers Ass’n, 258 F.3d 978, 983 (9th Cir. 2001) (citation omitted). The complaint asserts that 

the USOC established regulations governing athletic attire, which it required USATF to enforce 

as a condition of its production of the Olympic Trials. Compl. ¶ 38; see also, e.g., id. at ¶ 60 

(challenging “restraint agreed upon and imposed by [USOC and USATF]”). Such unilateral 

action by the USOC exercising control over its own product—Olympic-branded sporting 

events—cannot form the basis of a Section 1 conspiracy. 

As set out above, the ASA provides the USOC with exclusive jurisdiction over “all 

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matters pertaining to United States participation in the Olympic Games . . . including 

representation of the United States in the games.” 36 U.S.C. § 220503(3)(A) (2012). That 

includes full control over events, like the Olympic Trials, that are designed to “obtain . . . 

amateur representation for those games.” Id. at § 220505(c)(3). USATF possesses the authority 

as an NGB to host events obtaining representation for the Olympics only by “delegation” from 

the USOC. Ibid. In order to make use of the Olympic marks to brand such an event the “Olympic 

Trials” for the sports of track and field, USATF is further obligated to accept the USOC’s rules. 

Compl. ¶ 38.

Where, as here, USATF “merely agreed to purchase products or provide a service under 

conditions set by the other party . . .[t]he defendants did not make a ‘conscious commitment to a 

common scheme designed to achieve an unlawful objective.’” Toscano, 258 F.3d at 984 (citing 

Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764 (1984). “A manufacturer of course 

generally has a right to deal, or refuse to deal, with whomever it likes, as long as it does so 

independently . . . . And a distributor is free to acquiesce in the manufacturer’s demand in order 

to avoid termination.” Monsanto Co. 465 U.S. at 761 (citations omitted)); see also Am. Airlines 

v. Christensen, 967 F.2d 410, 413-14 (10th Cir. 1992) (no conspiracy where airline 

independently set the terms of its travel awards program and members merely accepted those 

terms); Beutler Sheetmetal Works v. McMorgan & Co., 616 F. Supp. 453, 456 (N.D. Cal. 1985)

(no conspiracy where investment company unilaterally established its “union-only” investment 

policy and real estate developers and mortgage lenders acquiesced in that policy); Rio Grande 

Royalty Co. v. Energy Transfer Partners, L.P., 786 F. Supp. 2d 1190, 1199 (S.D. Tex. 2009) 

(“the fact that a person accepts the terms of a contract does not, without more, generate the type 

of concerted action necessary to violate Section 1”).

In Toscano, the Ninth Circuit held that a PGA Tour tournament sponsor did not engage in 

concerted action for Section 1 purposes when it entered into a contract “to organize and conduct 

the tournament in accordance with PGA Rules and Regulations.’” 258 F.3d at 982. Plaintiff 

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challenged some of the PGA’s rules and regulations implemented at tour events by the 

tournament sponsors. Id. at 983. The appellate court rejected that challenge, holding that the 

tournament sponsors’ promise to abide by the PGA’s restrictions “show[ed] only that the local 

sponsors accepted the fact that the tournaments would be operated according to the PGA Tour’s 

rules and regulations, not that they agreed to use those rules to restrain trade. . . .” Id. at 984; see 

also id. at 985 (contracts between the PGA and the tournaments sponsors were “agreements” but 

not “evidence of an agreement for concerted action in restraint of trade”). 

The appellate court’s ruling in Toscano is dispositive here. The complaint identifies 

USATF’s acceptance of the USOC’s apparel rule as the allegedly anticompetitive “agreement.” 

Compl. Ex. 1, ¶ 33. It also alleges, however, that USATF abides by the regulation because it is 

“required by the USOC” to do so. Id. ¶ 38 (emphasis added); id. at Ex. 1 (“As a U.S. Olympic 

Committee event, the U.S. Olympic Team Trials—Marathon, Race Walk, and Track & Field are 

subject to IOC and USOC advertising regulations for athletes’ apparel and uniforms.”); see also 

id. at ¶ 39 (USOC demand that USATF remind athletes of the “rules that will be enforced 

throughout the 2012 U.S. Olympic Team Trials). Because the complaint establishes that the 

USOC set the rules and regulations and that USATF accepted those rules and regulations as a 

condition for hosting the Olympic Trials, Run Gum does not adequately allege a Section 1 

conspiracy and the complaint should be dismissed on this independent basis alone.

B. Run Gum Has Not Alleged a Plausible Relevant Market.

“In order to state a valid claim under the Sherman Act, a plaintiff must allege that the 

defendant has market power within a ‘relevant market.’” Newcal Indus., Inc. v. Ikon Office Sol., 

513 F.3d 1038, 1044 (9th Cir. 2008). A properly defined relevant market “includes the pool of 

goods or services that enjoy reasonable interchangeability of use and cross-elasticity of demand.” 

Colonial Med. Grp., Inc. v. Catholic Health Care W., 444 F. App’x 937, 938 (9th Cir. 2011) 

(citation omitted). “Failure to identify a relevant market is a proper ground for dismissing a 

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Sherman Act claim.” Tanaka v. Univ. of S. Cal., 252 F.3d 1059, 1063 (9th Cir. 2001); accord

Newcal Indus., 513 F.3d 1038 at 1045 (“a complaint may be dismissed under Rule 12(b)(6) if the 

complaint’s ‘relevant market’ definition is facially unsustainable.”); Colonial Med. Grp., 444 F. 

App’x at 938 (affirming dismissal because proposed market definition was “underinclusive” and 

failed to “encompass the product at issue as well as all economic substitutes for the product” 

(citation omitted)).

The complaint alleges a relevant market for “sponsoring individual athletes at the 

upcoming July 1-10, 2016 U.S. Olympic Track & Field Team Trials in Eugene, Oregon (‘the 

Olympic Trials’), in exchange for sponsor identification on the athletes’ competition apparel.”

Compl. ¶ 1. That putative market is limited to (i) sponsorship of (ii) athletes in a single sport at 

(iii) a single sporting event, in exchange for (iv) a single type of advertising (a third-party logo 

placed on an athlete’s apparel) in (v) a single location (the field of competition). In short, Run 

Gum seeks to place its logo into the field of competition during the telecast of USATF’s 

Olympic Trials and defines the relevant market as that “unique” advertising opportunity.

When plaintiffs do not “allege facts plausibly supporting the counterintuitive claim that [a 

product] is so unique that it suffers no actual or potential competitors,” then, “[e]ven where 

brand loyalty is intense, courts reject the argument that a single branded product constitutes a 

relevant market.” Apple, Inc. v. Psystar Corp., 586 F. Supp. 2d 1190, 1198 (N.D. Cal. 2008) 

(citation omitted). That is because “a company does not violate the Sherman Act by virtue of the 

natural monopoly it holds over its own product.” Ibid. accord Bushie v. Stenocord Corp., 460 

F.2d 116, 120 (9th Cir. 1972); Blizzard Ent., Inc. v. Ceiling Fan Software LLC, 941 F. Supp. 2d 

1227, 1234 n.6 (C.D. Cal. 2013). To do so “would as an analytic matter read the market 

definition step out of the Sherman Act.” Spinelli v. Nat’l Football League, 2015 WL 1433370, at 

*21 (S.D.N.Y. Mar. 27, 2015) (quotations and alterations omitted).

In an opinion issued earlier this month, a district court within this circuit explained in 

detail why a relevant market limited to apparel worn during the telecast of a particular athletic 

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competition was improper as a matter of law. Hicks v. PGA Tour, Inc., No. 15-CV-00489-VC, 

Dkt. No. 106 (N.D. Cal. Feb. 9, 2016). The plaintiffs in Hicks, caddies on the PGA Tour, 

challenged the Tour’s regulations prohibiting advertising on the caddies’ bibs while on the golf 

course during the televised competition. Id. at *1. Like Run Gum, the caddies sought to 

circumvent the control exercised by the PGA over the advertising visible to fans (at the venue 

and in the television audience) during the competition. And again like Run Gum, the caddies 

proposed relevant markets limited to the particular venue in which they wished to solicit 

advertising revenues: the market for “the endorsement of products and services by participants in 

professional golf tournaments,” and the market for “in-play or in-action commercial advertising 

at professional golf events between commercial breaks.” Id. *11-12. 

The Hicks court resoundingly rejected these market definitions, finding them “artificial” 

and “contorted to meet [plaintiffs’] litigation needs.” Id. *14. Specifically, the district court held 

that the caddies’ allegations—“that advertising in the ‘Endorsement Market’ and the ‘Live 

Action Advertising Market’ is meaningfully distinct from other forms of advertising to golf 

fans—[we]re not plausible.” Id. at 12-13. Instead, the district court noted, as a matter of law and 

common sense, that companies seeking to advertise to “fans of pro golf can do so in a variety of 

ways: television ads, magazine ads, internet ads, posters at golf course clubhouses, and more.” 

Id. at *13. “[I]t’s not enough to allege that these forms of advertising have differences. . . .To 

implicate the antitrust laws, the caddies must allege facts from which one could plausibly 

conclude that these different methods of advertising to golf fans are not reasonably 

interchangeable . . . .” Ibid.

Hicks is just the latest in a line of cases rejecting similarly narrow proposed relevant 

markets. District courts have rejected relevant markets limited to “NCAA promotional rights on 

athletic apparel used in intercollegiate competition,” Adidas Am., Inc. v. Nat’l Collegiate Athletic 

Ass’n, 64 F. Supp. 2d 1097, 1103 (D. Kan. 1999); the “UCLA women’s soccer program,” 

Tanaka, 252 F.3d at 1063; photographs of NFL games, Spinelli, 2015 WL 1433370, at *21; and 

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“watching Live Cubs Games, [i.e.,] consumers who pay money to watch live-action Cubs 

Games, in person, as the games take place on the field at Wrigley Field,” Right Field Rooftops, 

LLC v. Chicago Baseball Holdings, LLC, 87 F. Supp. 3d 874, 886 (N.D. Ill. 2015).

The district court in Adidas America, Inc. v. NCAA, for example, rejected on the 

pleadings a proposed market limited to advertising on uniforms and equipment during NCAA 

competitions. See 64 F. Supp. 2d at 1103. Adidas had not adequately explained “why other 

similar forms of advertising, namely sponsorship agreements with teams or individuals 

competing in the National Football League, the National Basketball Association, the Women’s 

National Basketball Association, Major League Baseball, Major League Soccer, or the 

Olympics, are not reasonably interchangeable with NCAA promotion rights or sponsorship 

agreements.” Ibid. 

Contrary to all of these precedents, the complaint alleges no facts demonstrating, or even 

suggesting, that no other form of advertising for Run Gum’s products would be a reasonable

substitute for appearing on athletes’ competition apparel at one quadrennial Olympic event in 

Eugene, Oregon. To the contrary, and in addition to the many obvious examples emphasized by 

the Hicks and Adidas courts, the complaint alleges that Run Gum has access to numerous other 

advertising opportunities:

1. The complaint alleges that “[e]very year, USATF hosts, in conjunction with partner cities 

and event sponsors, an Indoor Championship Series and an Outdoor Championship 

Series” and that “[a]t competitions in the USATF Indoor Championship Series and 

Outdoor Championship Series, track & field athletes are permitted to wear the names and 

logos of individual sponsors of their choice, without regard to the nature of the sponsor’s 

business.” Compl. ¶¶ 44, 45 (emphasis added).

2. The complaint alleges that there are opportunities to obtain single-sponsor exclusivity of 

Team USA [sic] at the track and field indoor and outdoor World Championships, but fails 

to include such sponsorship opportunities in the relevant market. Compl. ¶ 47.

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3. The complaint alleges that the Olympic trials can be watched on “the nationwide 

broadcast” of NBC and on “digital streaming services,” but does not distinguish the 

television and streaming advertising opportunities from those it includes in the relevant 

market. ¶ 4.

These alternatives conclusively undermine the proposed market definition. 

Finally, the complaint does not plausibly alleged facts “supporting the counterintuitive 

claim” that advertising on athletic attire during the competition at the USATF Olympic Trials is 

“so unique that it suffers no actual or potential competitors.” Apple, 586 F. Supp. 2d at 1198. 

Conclusory allegations of “uniqueness,” like those offered in the complaint, have been firmly 

and routinely rejected. See, e.g., Tanaka, 252 F.3d at 1063 (“conclusory assertion that the 

‘UCLA women’s soccer program’ is ‘unique’ and hence ‘not interchangeable with any other 

program in Los Angeles’ is insufficient”); Hicks, *11-13 (rejecting argument that PGA Tour 

audience was unique). According to the complaint, Run Gum views advertising on athletes’ 

competition apparel as a “significant component of [its] business-growth strategy for 2016,” 

Compl. ¶ 49, but its “personal preference” to advertise during the Olympic Trials without being a 

USOC, USATF, or Olympic sponsor is “irrelevant to the antitrust inquiry.” Tanaka, 252 F.3d at 

1063; see also Right Field Rooftops, 87 F. Supp. 3d 874, 887 (N.D. Ill. 2015) (“arguments of 

consumer preferences . . . fall short of rendering it plausible that there exist no interchangeable 

substitutes for live Cubs games”).

* * *

“[A]n antitrust plaintiff may not ‘define a market so as to cover only the practice 

complained of, this would be circular or at least result-oriented reasoning.’” Adidas, 65 F. Supp. 

3d at 1102 (citation omitted). Like the plaintiffs in Adidas, Hicks, Spinelli, Tanaka, and Right 

Field Rooftops, Run Gum concocted a “result-oriented,” relevant market limited to the “product” 

that it wished to obtain. That relevant market ignores obvious substitutes and is improper as a 

matter of law, and the complaint should be dismissed accordingly.

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C. Run Gum Has Not Alleged a Per Se Violation of the Antitrust Laws.

In an effort to broaden its allegations and avoid the rule of reason requirement to show 

anticompetitive effects in a properly defined relevant market, Run Gum suggests that the 

challenged conduct falls within the narrow scope of “horizontal” antitrust violations so 

pernicious and obviously anticompetitive that they are deemed per se unlawful. E.g., Cal. Dental 

Ass’n. v. FTC, 526 U.S. 756, 770-71 (1999) (per se treatment not appropriate unless 

anticompetitive effects are “obvious”). Per se treatment “is reserved for practices that experience 

has demonstrated are almost always anticompetitive.” Dimidowich v. Bell & Howell, 803 F.2d 

1473, 1480 (9th Cir. 1986) opinion modified on denial of reh’g, 810 F.2d 1517 (9th Cir. 1987); 

see also Int’l Healthcare Mgmt. v. Haw. Coal. for Health, 332 F.3d 600, 605 (9th Cir. 2003)

(“Per se categories [of antitrust liability] are not to be expanded indiscriminately to new factual 

situations.”). 

Run Gum’s effort to secure from this Court per se condemnation of the USOC’s and 

USATF’s ASA-authorized production of the Olympic Trials is meritless. E.g., Nat’l Collegiate 

Athletic Ass’n v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 117 (1984) (NCAA limits on 

pricing and output of college football telecasts not subject to per se standard); Tanaka, 252 F.3d 

at 1063 (NCAA transfer rule not subject to per se standard):

First, no “horizontal” conspiracy among some amorphous group of manufacturers, let 

alone a per se unlawful one, is plausibly alleged in the complaint. To the contrary, Run Gum’s 

conspiracy allegations contain “just ultimate facts” and not “evidentiary facts.” Kendall, 518 

F.3d at 1047; see also In re Musical Instruments & Equip. Antitrust Litig., 798 F.3d 1186, 1194 

n.6 (9th Cir. 2015) (“plaintiffs cannot plead merely parallel conduct and allege conspiracy”; 

rather, “plaintiffs must plead evidentiary facts: who, did what, to whom (or with whom), where, 

and when.”). “It is not enough merely to include conclusory allegations that certain actions were 

the result of a conspiracy; the plaintiff must allege facts that make the conclusion plausible.” 

Name.Space, Inc. v. Internet Corp. for Assigned Names & Numbers, 795 F.3d 1124, 1129 (9th 

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Cir. 2015). While replete with conclusory allegations that the USOC and USATF conspired with 

unnamed horizontal coconspirators, the complaint provides no evidentiary facts in support of 

those allegations. Similar to the allegations rejected in Twombly itself, “the pleadings mention[] 

no specific time, place, or person involved in the alleged conspiracies .... [and] the complaint . . . 

furnishes no clue as to which of the [alleged conspirators] (much less which of their employees) 

supposedly agreed, or when and where the illicit agreement took place.” 550 U.S. at 565, n. 10. 

These allegations should be disregarded, and cannot save the complaint.

Second, the putative per se unlawful “group boycott” alleged in the complaint is simply 

implausible. It is implausible because, even taking the complaint in the most favorable light, it 

appears to allege that a group of unnamed apparel manufacturers, some of which may or may 

not be sponsors of the USOC, USATF, and/or individual athletes, conspired to boycott a chewing 

gum manufacturer. A per se group boycott can occur, however, only when “[a] group of 

competitors threaten[s] to withhold business from third parties unless those third parties would 

help them injure their directly competing rivals.” NYNEX Corp. v. Discon, Inc., 525 U.S. 128, 

135 (1998) (emphasis added). Here, per se treatment of any alleged group boycott is unavailable 

because Run Gum is not directly competing with USATF, USOC, apparel manufacturers, or any 

of a host of other hypothetical unnamed companies; it competes instead with producers of 

“coffee or energy drinks for athletes.” Compl. ¶ 15. 

The group boycott theory is also implausible “in light of basic economic principles.” 

William O. Gilley, 588 F.3d at 662 (quoting Twombly, 550 U.S. at 556). The USOC’s uniform 

marks limitations require USATF to conduct the Olympic Trials in accordance with Rule 50 of 

the Olympic Charter. Rule 50 in turn, provides for the challenged “standard manufacturer” 

exception to its general ban on any “form of publicity or propaganda” on athletes’ apparel or 

equipment. The exception allows “the identification . . . of the manufacturer of the article or 

equipment concerned, provided that such identification shall not be marked conspicuously for 

advertising purposes.” Compl. ¶ 52. Nothing in that exception distinguishes between a “standard 

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manufacturer” that sponsors the USOC or USATF and a “standard manufacturer” that does 

not—the complaint alleges, in essence, that USOC and USATF are gratuitously enforcing a rule 

for the benefit of non-sponsors. See Compl. ¶ 6 (“only one of USATF’s six ‘official sponsors’ . . 

. provides a good or service that relates to sports in any way” (emphasis added)).

Finally, as for the price-fixing theory that Run Gum alleges in passing, the only 

agreement actually identified in the complaint—and the only one alleged to suppress the price of 

individual sponsorships—is that between the USOC and USATF. That agreement is indisputably 

vertical, and “[v]ertical agreements . . . are analyzed under the rule of reason” standard that 

plaintiff has not met. In re Musical Instruments, 798 F.3d at 1191 (citations omitted).

CONCLUSION

For the reasons set forth above, the complaint should be dismissed with prejudice.

DATED this 26th day of February, 2016.

MILLER NASH GRAHAM & DUNN LLP

s/ Bruce L. Campbell

Bruce L. Campbell, P.C., OSB No. 925377

bruce.campbell@millernash.com

Telephone: (503) 224-5858

Facsimile: (503) 224-0155

COVINGTON & BURLING LLP

Derek Ludwin (admitted pro hac vice)

dludwin@cov.com

Alexander E. Ramey (admitted pro hac vice)

aramey@cov.com

One CityCenter

850 Tenth Street N.W.

Washington, D.C. 20001-4956

Telephone: (202) 662-5429

Facsimile: (202) 778-5429

Attorneys for Defendant

United States Olympic Committee

Case 6:16-cv-00092-MC Document 41 Filed 02/26/16 Page 21 of 23
Page A - Certificate of Service

70082138.1

CERTIFICATE OF SERVICE

I hereby certify that I served the foregoing Defendant United States Olympic 

Committee's Motion to Dismiss and Memorandum in Support on:

Timothy P. Landis, OSB No. 92617

E-mail: tim@tlandislaw.com

TIMOTHY LANDIS, P.C.

One S.W. Columbia Street, Suite 1110

Portland, Oregon 97258

Tel: (503) 220-1331

Fax: (503) 227-7829

Attorney for Plaintiff

Gold Medal LLC d/b/a Run Gum

Michael D. Hausfeld

mhausfeld@hausfeld.com

Sathya S. Gosselin

sgosselin@hausfeld.com

Swathi Bojedla

sbojedla@hausfeld.com

HAUSFELD LLP

1700 K Street, N.W., Suite 650

Washington, D.C. 20006

Tel: (202) 540-7200

Fax: (202) 540-7201

Attorney for Plaintiff

Gold Medal LLC d/b/a Run Gum

Michael P. Lehmann

mlehmann@hausfeld.com

Bonny E. Sweeney

bsweeney@hausfeld.com

HAUSFELD LLP

600 Montgomery Street, Suite 3200

San Francisco, California 94111

Tel: (415) 633-1908

Fax: (415) 358-4980

Attorney for Plaintiff

Gold Medal LLC d/b/a Run Gum

Robert E. Sabido

rsabido@cosgravelaw.com

COSGRAVE VERGEER KESTER, LLP 

500 Pioneer Tower 

888 S.W. Fifth Avenue 

Portland, Oregon 97204 

Tel: (503) 323-9000 

Fax: (503) 323-9019

Attorney for Defendant

USA Track & Field

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Emily H. Stone

estone@loeb.com

Douglas N. Masters

dmasters@loeb.com

LOEB & LOEB

321 N. Clark, Suite 2300

Chicago, Illinois 60654

Tel: (312) 464-3100

Fax: (312) 464-3111

Nathan J. Muyskens

nmuyskens@loeb.com

LOEB & LOEB

901 New York Avenue N.W. Suite 300 East

Washington, D.C. 20001

Tel: (202) 618-5001

Fax: (202) 618-5022

Attorney for Defendant

USA Track & Field

by the following indicated method or methods on the date set forth below:

 CM/ECF system transmission.

DATED this 26th day of February, 2016.

s/ Bruce L. Campbell

Bruce L. Campbell, P.C., OSB No. 925377

Attorneys for Defendant

United States Olympic Committee

Case 6:16-cv-00092-MC Document 41 Filed 02/26/16 Page 23 of 23