Gold Medal, LLC, d/b/a Run Gum v. USA Track & Field; United States Olympic Committee

Appellant Gold Medal LLC d/b/a Run Gum (Run Gum)

appeals the district court’s order dismissing its complaint.

Run Gum alleged that Appellees USA Track & Field

(USATF) and the United States Olympic Committee

(Olympic Committee) engaged in an anticompetitive

conspiracy in violation of antitrust law by imposing

advertising restrictions during the Olympic Trials for track

and field athletes. According to Run Gum, the district court

erroneously determined that the Olympic Committee and

USATF should be afforded implied antitrust immunity on the

basis that their advertising restrictions were integral to

performance of their duties under the Ted Stevens Olympic

and Amateur Sports Act (ASA). See JES Props., Inc. v. USA

Equestrian, Inc., 458 F.3d 1224, 1226 (describing the ASA)

GOLD MEDAL LLC 4 V. USA TRACK & FIELD

(Alarcon, C.J., authoring judge). Reviewing de novo, we

affirm the judgment of the district court.

I. BACKGROUND

This appeal involves the statutory framework devised by

Congress in support of the mission of national sports

governing bodies to promote and finance the participation of

American athletes in “international amateur athletic

competition.” 36 U.S.C. § 220503. Under the auspices of the

ASA, the Olympic Committee exercises exclusive

jurisdiction over “all matters pertaining to United States

participation in the Olympic Games, the Paralympic Games,

and the Pan-American Games, including representation of the

United States in the games,” and “the organization of the

Olympic Games, the Paralympic Games, and the Pan-

American Games when held in the United States.” Id. at

§ 220503(3). With respect to amateur athletics, the Olympic

Committee may “organize, finance, and control the

representation of the United States in the competitions and

events of the Olympic Games, the Paralympic Games, and the

Pan-American Games.” Id. at § 220505(c)(3). The Olympic

Committee may also “obtain, directly or by delegation to the

appropriate national governing body, amateur representation

for those games.” Id.

In its complaint, Run Gum, a manufacturer of

“compressed functional chewing gum” containing “a

proprietary mix of caffeine, taurine, and b vitamins,” averred

that USATF, as the national governing body for the sport of

track and field, “organizes and hosts the Olympic Trials,

where the greatest track [and] field athletes in the United

States compete to earn a position on the U.S. Olympic team.”

Run Gum asserted that “[g]iven the unique nature and

GOLD MEDAL LLC V. USA TRACK & FIELD 5

infrequency of the Olympic Trials, the public interest is

overwhelming,” with “[i]n-person attendance typically

exceed[ing] 20,000.”

Run Gum alleged that, despite its interest in sponsoring

athletes during the Olympic Trials, it was precluded from

doing so due to logo and sponsorship restrictions imposed by

the Olympic Committee and enforced by USATF. According

to Run Gum, USATF “severely restrict[s] the type of

individual sponsors that track [and] field athletes can display

on their athletic apparel at the Olympic Trials, including their

competition kit, which greatly diminishes sponsorship

opportunities for the athletes and excludes various would-be

sponsors.” (internal quotation marks omitted) (emphasis in

the original). Run Gum complained that USATF’s

advertising restrictions provide that “with the exception of

standard manufacturers’ equipment identification . . . 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).” (alteration and

footnote reference omitted). Run Gum asserted that the

USATF regulation nonetheless allows athletes to wear

apparel containing the logo and names of certain preapproved

manufacturers, such as Nike.

Run Gum maintained that use of pre-approved

manufacturers “exclude[d] scores of sponsors from the

marketplace” in violation of Section 1 of the Sherman Act.

Run Gum posed a single cause of action premised on

violations of the antitrust laws stemming from the challenged

advertising restrictions. Run Gum contended that the

regulation limiting sponsorships of athletes during the

Olympic Trials was “an anticompetitive horizontal and

GOLD MEDAL LLC 6 V. USA TRACK & FIELD

vertical agreement among competitors to fix artificially—and

unlawfully—the number of individual sponsors and the price

paid to athletes for individual sponsorship.” Run Gum further

alleged that the advertising and logo restriction was “an

unlawful group boycott of individual sponsors that do not

manufacturer [sic] apparel or equipment, which are

categorically excluded from sponsoring athletes at the

Olympic Trials.” In addition to damages, Run Gum sought

to enjoin the Olympic Committee and USATF from

“preventing Run Gum from sponsoring individual athletes at

the 2016 Olympic Trials in exchange for sponsor

identification on clothing at the Olympic Trials.”

In a published opinion, the district court dismissed Run

Gum’s action based on implied antitrust immunity under the

ASA. See Gold Medal LLC v. USA Track & Field, 187 F.

Supp. 3d 1219, 1222 (D. Or. 2016). While acknowledging

that grants of implied antitrust immunity are generally

disfavored, the district court nevertheless concluded that the

advertising restrictions enabled the Olympic Committee and

USATF to perform their statutory obligations under the ASA.

See id. at 1228–30. The district court emphasized that “[a]s

the only nation that does not provide its Olympic team with

federal funding or subsidies, the United States instead relies

on the [Olympic Committee] to raise the financial resources

necessary to organize Team USA and to compete in the

Olympic Games.” Id. at 1228 (citation omitted). According

to the district court, the advertising restrictions “prevent a

dilution of the Olympic brand,” and “permit the [Olympic

Committee] and USATF to play a gatekeeping function

which preserves the exclusivity–and thus value–of the

Olympic symbols and name.” Id. at 1230. Due to the

importance of the advertising restrictions in advancing the

Olympic mission, the district court held that the Olympic

GOLD MEDAL LLC V. USA TRACK & FIELD 7

Committee and USATF should be afforded implied antitrust

immunity in enforcing the restrictions that were necessary to

fulfillment of their statutory duties under the ASA. See id. at

1231–32.

Run Gum filed a timely notice of appeal.

II. STANDARDS OF REVIEW

“We review de novo the district court’s grant of a motion

to dismiss.” Elmakhzoumi v. Sessions, 883 F.3d 1170, 1172

(9th Cir. 2018) (citation omitted).

“We [also] review de novo . . . the district 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

We have recognized that “implied antitrust immunity is

not favored, and can be justified only by a convincing

showing of clear repugnancy between the antitrust laws and

the regulatory system.” Total TV v. Palmer Commc’ns, Inc.,

69 F.3d 298, 302 n.6 (9th Cir. 1995) (citation and alteration

omitted). Although we have not directly addressed implied

antitrust immunity under the ASA, other circuit courts have

found the requisite “clear repugnancy” between the ASA and

antitrust laws. Id.

In JES Props., Inc. v. USA Equestrian, Inc., 458 F.3d

1224 (11th Cir. 2006), the Eleventh Circuit addressed a rule

developed by the United States Equestrian Foundation

(Equestrian Foundation) that imposed a mileage distance for

GOLD MEDAL LLC 8 V. USA TRACK & FIELD

equestrian competitions. See id. at 1226–27. The mileage

rule generally required that any A-rated equestrian

competitions on the same date be held a minimum of

250 miles apart. The Eleventh Circuit discerned the

following two purposes for the rule: 1) “to concentrate elite

riders into fewer competitions in order to yield the most

competitive international equestrian team possible,” and

2) “to promote equestrianism nationwide by forcing

promoters to hold recognized competitions in more diverse

locations.” Id. at 1227. The Eleventh Circuit reasoned that,

due to “the monolithic control”exercised by national

governing bodies, “the question . . . is whether the application

of the antitrust laws to the facts of this case would unduly

interfere with the operation of the ASA.” Id. at 1231–32

(citation and internal quotation marks omitted). The Eleventh

Circuit explained that it would “not substitute its own

judgment for that of the [Equestrian Foundation] regarding

the optimum way to fulfill its obligations,” and concluded

that “implied immunity [was] called for in [the] case.” Id. at

1232. In reaching this conclusion, the Eleventh Circuit

emphasized that, contrary to the plaintiffs’ assertions, it was

not required to “focus on whether the rule is an effective or

wise way of implementing [the Equestrian Foundation’s]

powers,” id. at 1231, or to “consider whether the particular

eligibility rule was necessary or otherwise examine the

wisdom of the rule.” Id. at 1232 (emphasis in the original).

The Eleventh Circuit held that “[b]ecause the ASA requires

[a national governing body] to promulgate rules to minimize

conflicts in schedules, the imposition of antitrust liability for

the promulgation of such a rule is plainly repugnant to the

ASA.” Id. (alteration and internal quotation marks omitted).

The Eleventh Circuit relied heavily on the Tenth Circuit’s

approach in Behagen v. Amateur Basketball Ass’n of the

GOLD MEDAL LLC V. USA TRACK & FIELD 9

United States, 884 F.2d 524 (10th Cir. 1989). See JES

Props., 458 F.3d at 1231–32. In Behagen, the Tenth Circuit

reversed a jury verdict in favor of a basketball player who

challenged under the antitrust laws an eligibility rule

developed by the national governing body for amateur

basketball that prohibited a player from participating in

amateur events if the player had participated in professional

games. See Behagen, 884 F.2d at 526–27. The Tenth Circuit

held that the antitrust issue should not have gone to the jury

because the eligibility rule was exempt from the antitrust laws

under the ASA. See id. at 527. The Tenth Circuit

emphasized that “Behagen complains of exactly that action

which the [ASA] directs—the monolithic control of an

amateur sport by the [national governing body] for that

sport.” Id. at 529. The Tenth Circuit clarified that “the

[Amateur Basketball Association of the United States of

America] could not be authorized under the [ASA] unless it

maintained exactly that degree of control over its sport that

Behagen here alleges as an antitrust violation.” Id. The

Tenth Circuit emphasized that “[a]lthough [a national

governing body] is a private actor, the monolithic control

exerted by [a national governing body] over its amateur sport

is a direct result of the congressional intent expressed in the

Amateur Sports Act.” Id. at 528 (footnote reference omitted).

We are persuaded that we should follow the analysis

reflected in the decisions of our sister circuits applying

implied antitrust immunity under the ASA. We are not

persuaded that the Fifth Circuit’s decision in Eleven Line, Inc.

v. N. Tex. State Soccer Ass’n, Inc., 213 F.3d 198 (5th Cir.

2000), mandates a reversal in this case. In Eleven Line, the

Fifth Circuit held that the exclusionary activities of nonprofit,

volunteer-run soccer organizations should not be

afforded implied antitrust immunity. See id. at 199, 204–05.

GOLD MEDAL LLC 10 V. USA TRACK & FIELD

The non-profit organization in that case promulgated and

implemented a rule requiring soccer players, coaches, and

referees to conduct soccer games only at “sanctioned”

facilities, which did not include Eleven Line’s for-profit

soccer facility. Id. at 199. Notably, the national governing

body for youth soccer did not issue the challenged rule or

explicitly approve it. See id. at 204 & n.1. For these reasons,

Eleven Line is distinguishable from the present appeal, as

well as from JES Properties and Behagen, because it

involved a rule that was not sanctioned or approved by a

national governing body, and the organization imposing the

rule was the “only national state association to have such a

rule.” Id.

The Fifth Circuit recognized the propriety of applying

implied antitrust immunity under the ASA when the rule, like

the advertising and logo restriction before us in this case, is

either developed or approved by a national governing body:

Although the facts of this case do not support

an implied exemption from the antitrust laws,

an implied exemption would be appropriate in

many other situations. For example, if

national state associations all over the country

had a similar rule, one could infer that the rule

was necessary to the management of the

sport. . . . If [the national governing body] had

promulgated the rule or expressly approved

[the] rule in such a way as to indicate an

awareness of its consequences, it would be a

player eligibility rule exempted under

Behagen. . . . Any of these circumstances, and

no doubt others not described here, would

merit an implied exemption.

GOLD MEDAL LLC V. USA TRACK & FIELD 11

Id. at 204–05.

The Fifth Circuit expressed its belief that “Behagen was

correctly decided,” but recognized that Behagen did not cover

the facts of Eleven Line. Id. at 204. Ultimately, in Eleven

Line, the Fifth Circuit concluded that implied antitrust

immunity was unavailable because the non-profit soccer

organization “promulgated a rule that could be found

nowhere else in the country, that was not explicitly approved

by the [the national governing body], and for which it was

unable to articulate a convincing rationale related to its

management of amateur soccer in the area.” Id. at 205.

We conclude that the decisions of the Tenth and Eleventh

Circuits provide a sound basis for affirming the district

court’s application of implied antitrust immunity to the

advertising and logo restrictions enforced by the USATF.

Under the ASA, the respective national governing body is

authorized to “organize, finance, and control the

representation of the United States in the competitions and

events of the Olympic Games, the Paralympic Games, and the

Pan-American 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).

The ASA broadly grants national governing bodies exclusive

rights in “the name United States Olympic Committee,” “the

symbol of the International Olympic Committee,” “the

emblem of the corporation,” as well as “the words Olympic,

Olympiad, Citius Altius Fortius, Paralympic, Paralympiad,

Pan-American, America Espirito Sport Fraternite, or any

combination of those words.” 36 U.S.C. § 220506(a)

(internal quotation marks omitted). In light of the broad

authority bestowed upon national governing bodies to fund

the Olympic Mission, the challenged advertising and logo

GOLD MEDAL LLC 12 V. USA TRACK & FIELD

restrictions precluding advertisers from impinging on this

delegated authority falls within the mission to protect the

value of corporate sponsorships and maximize sanctioned

fundraising. To compel the Olympic Committee and USATF

under the antitrust laws to permit any would-be advertiser to

sponsor individual athletes without national governing body

approval “would unduly interfere with the operation of the

ASA.” JES Props., 458 F.3d at 1231–32 (citation and

internal quotation marks omitted). Although the statute does

not explicitly bestow antitrust immunity, the ASA establishes

funding for the Olympic mission as a central responsibility of

the Olympic Committee and its national governing bodies.

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

Comm., 483 U.S. 522, 538–39 (1987) (recognizing that

exclusive rights in the term “Olympics” “directly advances

. . . governmental interests by supplying the [Olympic

Committee] with the means to raise money to support the

Olympics and encourages the [Olympic Committee’s]

activities by ensuring that it will receive the benefits of its

efforts”); see also Behagen, 884 F.2d at 529 (“Although the

Amateur Sports Act does not contain an explicit statement

exempting action taken under its direction from the federal

antitrust laws, we find that the directives of the Act make the

intent of Congress sufficiently clear. . . .”) (citation and

footnote reference omitted).

The analysis of our sister circuits that we now adopt is

consistent with the express purpose of the ASA. As noted by

the United States Supreme Court, the ASA was “enacted to

correct the disorganization and the serious factional disputes

that seemed to plague amateur sports in the United States.”

San Francisco Arts & Athletics, 483 U.S. at 544 (quoting

H.R. Rep. No. 95-1627, p. 9, U.S. Code Cong. & Admin.

News 1978 p. 7482). As discussed, the Supreme Court has

GOLD MEDAL LLC V. USA TRACK & FIELD 13

clarified that it was the intent of Congress that the Olympic

Committee be provided “with the means to raise money to

support the Olympics,” including the “commercial and

promotional value derived from the panache associated with

the Olympics.” Id. at 532–33. Similarly to the plaintiff in

Behagen, Run Gum “complains of exactly that action which

the [ASA] directs—the monolithic control of an amateur

sport by the [national governing body] for that sport,”

Behagen, 884 F.2d at 529, as a “direct result of the

congressional intent expressed in the [ASA].” Id. at 528

(footnote reference omitted).

Finally, Run Gum contends that the district court engaged

in improper fact-finding that the advertising and logo

restrictions prevented dilution of the Olympic brand. Run

Gum specifically maintains that the district court’s factual

findings contradicted its allegations that must be taken as true

at the dismissal stage. However, the district court’s analysis

was not premised on any improper factual findings, as the

district court merely made the obvious and common-sense

observation that elimination of the advertising restrictions

would dilute the Olympic brand. See San Francisco Arts &

Athletics, 483 U.S. at 532–33; see also Gold Medal, 187 F.

Supp. 3d at 1230 (noting that Run Gum sought “to capitalize

on the unique nature of the Olympic Brand” and that the

national governing body sought to “prevent a dilution of the

Olympic Brand”).1

1 Because we conclude that the Olympic Committee and USATF

should be afforded implied antitrust immunity, we do not reach the

alternative argument raised by the Olympic Committee and USATF that

Run Gum failed to sufficiently allege the requisite relevant market for

antitrust injury.

GOLD MEDAL LLC 14 V. USA TRACK & FIELD

IV. CONCLUSION

Consistent with the purpose of the ASA, and the

analytical framework reflected in Behagen and JES

Properties, we conclude that the advertising and logo

restrictions applied by the Olympic Committee and USATF

to sponsorship of individual athletes during the Olympic

Trials should be afforded implied antitrust immunity under

the ASA. The district court properly applied implied antitrust

immunity under the ASA in dismissing Run Gum’s complaint

based on the “convincing showing of clear repugnancy

between the antitrust laws” and the provisions of the ASA to

advance the Olympic Committee’s mission to fund and

administer Olympic events. Total TV, 69 F.3d at 302 n.6

(citation omitted). As the district court observed, an

injunction preventing enforcement of the advertisement

regulation “would open the floodgates” to potential

advertisers, some of which might enhance the Olympic brand

and some of which might devalue the Olympic brand. See

Gold Medal LLC, 187 F. Supp. 3d at 1230. The regulation

avoids placing the Olympic Committee in the unenviable

position of having to face this conundrum in fulfilling its

mission to finance American Olympic athletes. We thus view

the regulation as protected from antitrust challenge. See

Behagen, 884 F.2d at 529 (connecting implied antitrust

immunity with Congressional intent for the ASA). As made

evident by the Eleven Line decision, application of implied

antitrust immunity is not limitless. However, we are

persuaded that the facts of this case fall comfortably within

the framework contemplated by Congress when it enacted the

ASA. See San Francisco Arts & Athletics, 483 U.S. at

538–39 (discussing Congressional intent to supply the

Olympic Committee with “the means to raise money to

GOLD MEDAL LLC V. USA TRACK & FIELD 15

support the Olympics” and “ensuring that the [Olympic

Committee] will receive the benefit of its efforts”).

AFFIRMED.

NGUYEN, Circuit Judge, concurring in the result:

Respectfully, I disagree with the majority’s conclusion

that defendants are immune from the antitrust claim alleged

in the complaint. As the majority correctly recognizes,

“[i]mplied antitrust immunity is not favored, and can be

justified only by a convincing showing of clear repugnancy

between the antitrust laws and the regulatory system.” United

States v. Nat’l Ass’n of Sec. Dealers, Inc., 422 U.S. 694, 719

(1975). We therefore don’t analyze conflict between antitrust

and other laws at a high level of generality. See Silver v. N.Y.

Stock Exch., 373 U.S. 341, 357 (1963) (rejecting approach in

which an organization’s “general power to adopt rules”

renders “particular applications of such rules . . . outside the

purview of the antitrust laws.”). “[T]he proper approach . . .

is an analysis which reconciles the operation of both statutory

schemes with one another rather than holding one completely

ousted.” Id. at 357.

The antitrust claim here involves a narrow exception

allowing athletes to wear apparel with the manufacturer’s

logo notwithstanding a general rule prohibiting sponsorship

and advertising on their clothes. The purpose of this

exception, according to defendants, is “to permit athletes to

purchase and wear store-bought apparel they preferred and

could afford.” It has nothing to do with defendants’ statutory

right “to exercise exclusive jurisdiction” over “all matters

GOLD MEDAL LLC 16 V. USA TRACK & FIELD

pertaining to United States participation in the Olympic

Games,” 36 U.S.C. § 220503(3)(A), to “authorize

contributors and suppliers of goods or services to use”

Olympic marks, id. § 220506(b), or to otherwise “finance . . .

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

While the rule banning advertising on athletic apparel

may serve a revenue-raising purpose by protecting the value

of the Olympic brand, it is the exception—not the rule—at

issue here. Run Gum’s allegations don’t suggest that

defendants profit from the exception.1 But neither do they

establish a viable product market. See Hicks v. PGA Tour,

Inc., No. 16-15370, slip op. at 25–30 (9th Cir. July 27, 2018).

Therefore, while implied antitrust immunity does not apply,

Run Gum nevertheless has failed to allege an antitrust claim.

Run Gum normally would be entitled to amend its

pleadings, see id. at 31–32, but here any amendment would

be futile. Even if Run Gum can allege a plausible conspiracy

and a viable product market, its antitrust claim is still

untenable. Either defendants received no economic benefit,

in which case the apparel manufacturer exception is

nonactionable, see O’Bannon v. Nat’l Collegiate Athletic

Ass’n, 802 F.3d 1049, 1065–66 (9th Cir. 2015), or they are

exercising their statutory right to finance the Olympic Games

with implied immunity from suit.

1 The only entities alleged to profit from the exception are the apparel

manufacturers, who compete for advertising space on athletes’ apparel

with fewer potential rivals, thus suppressing their advertising costs. While

it is possible that defendants indirectly profit from the exception by

conspiring with the apparel manufacturers, Run Gum’s conclusory

allegations do not plausibly show this or any other conspiracy. See Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 569 (2007).

GOLD MEDAL LLC V. USA TRACK & FIELD 17

Therefore, I concur in the result affirming the district

court’s dismissal of Run Gum’s complaint with prejudice.

Affirmed