I thought this opinion was going to be unanimous. And it was. Sort of.
Run Gum manufactures a “compressed functional chewing gum” that contains “a
proprietary mix of caffeine, taurine, and b vitamins.” It want to advertise its products on the sportswear of the track and field athletes in the Olympic Trials. Stunningly, the Olympic Committee won't let it. So it sues.
There is some advertising at the Olympics. Very little, but some. At least on the sportswear. The manufacturers of the actual products (e.g., Nike) get to put their mark on the products. But that's it.
But Run Gun wants to open the floodgates. And says that the decision of the Olympic Committee to box it out is a violation of the Sherman Act.
The district court disagrees. So does the Ninth Circuit. Thankfully. Maybe it's just me, but I don't want athletes at the Olympics (or Olympic Trials, even) to be replete with plethora of advertising logos on their gear. This is the pinnacle of (mostly) amateur sport. Not NASCAR.
The majority gets to this result by finding implied antitrust immunity under the Ted Stevens Olympic
and Amateur Sports Act. That seems plausible to me. Judge Nguyen concurs, however, and says that she doesn't think there's antitrust immunity, but that the complaint should nonetheless be dismissed for other reasons (e.g., no viable product market). Okay, That seems like a path forward as well.
Though, personally, I sort of like the majority's approach. Still: Any path to the desired result seems fine to me. A little swoosh doesn't much matter to me. By contrast, a logo for "Run Gum" on the gear of an Olympic athlete really does degrade the thing. Even to my jaded eyes.
