Judge Tentatively Rules in Favor of Speedo, USA Swimming, Mark Schubert in Lawsuit Brought By TYR

SANTA ANA, California, March 1. WHILE the court case brought by TYR against Speedo, USA Swimming and Mark Schubert was to have been heard beginning next month, Judge James V. Selna tentatively decided to make his ruling a month early.

In a tentative ruling acquired by Swimming World heading into a hearing this afternoon, Judge Selna intends on ruling completely in favor of Speedo, USA Swimming and Schubert with summary judgments against TYR. A summary judgment means that a determination has been made by a judge that the case does not have merit to even reach a full trial.

TYR's case included 10 claims against Speedo, USA Swimming and Schubert. Judge Selna tackles these claims as follows:

Federal and State Antitrust Claims
In the first three claims in TYR's case, TYR alleged that Speedo, USA Swimming and Schubert acted in a way to restrain trade whereas USA Swimming acted as an agency for Speedo. Judge Selna ruled that for these claims to go forward to trial, TYR "must prove actual coercion" and that USA Swimming and Schubert must have put in an active restraint against TYR.

There were several points of evidence Judge Selna considered where Schubert might have been in a position to coerce, and not just suggest, to swimmers that wearing Speedo products were advantageous.

Judge Selna pointed to what his ruling calls "The Beijing Olympics Comment," where Schubert is quoted as saying ""I would strongly advise [the swimmers] to wear the [Speedo] suit at trials, or they may end up at home watching [the Olympics] on NBC."

According to Judge Selna, the only way this statement can be considered coercive is if Schubert had the ability "to exclude swimmers from the Olympic team." As U.S. swimmers know, the selection process for the Olympics is purely merit-based with Trials being the sole arbiter of who makes the team.

Judge Selna then moved on to what he lists as "Schubert's Attempts to Persuade Elite Swimmers." TYR alleged that Schubert attempted to get Patrick Murphy and Nick D'Innocenzo to wear the Speedo LZR Racer at the Junior Pan Pacific Championships in 2009. Murphy wore the suit for one race, and switched back to his TYR suit. According to Judge Selna, the fact that no action was taken against Murphy for switching back to his TYR suit lent itself that Schubert's conversations with Murphy and D'Innocenzo were purely promotional for Speedo and not coercive in nature.

The rest of the section pointed out several other claims where Schubert attempted to promote the Speedo product to various national and international swimmers. Judge Selna ruled that TYR failed to show how any of these comments were coercive in nature since no threats were levied as part of the conversations.

Judge Selna then moved to "Athlete Compensation & Non-Olympic Competitions" in the summary judgment. TYR alleged that Schubert had control over various discretionary ways of rewarding swimmers through payments, relay choice or access to Post-Graduate Training Centers. Judge Selna ruled against TYR stating that TYR did not make any connection between the fact that Schubert had the power to follow through on a threat and whether he actually did make a threat.

TYR also alleged "Research Collaboration" between Speedo, USA Swimming and Schubert. Judge Selna ruled that TYR did not proved that such collaboration was anticompetitive and even went so far as to say the research could have had precompetitive effects. Additionally, Judge Selna ruled that "manufacturers are
not required to be altruistic when working in a joint venture with a non-profit."

Finally, under the first three claims, Judge Selna ruled on "Schubert's Role as Technical Advisor." TYR claimed that Schubert used only information favorable to Speedo when talking about techsuits. Judge Selna ruled that antitrust laws do not require someone in Schubert's position to "praise competitors equally or to refrain from disparaging a competitor."

False Advertising Claim
The fourth claim related to what TYR alleged was false advertising by Speedo relating to Schubert's statement that the LZR Racer offered a two percent advantage as well as his comments to Murphy and D'Innocenzo. By law, TYR had to prove that not only were claims false but that they also resulted in injury to TYR. While Judge Selna ruled that Speedo, USA Swimming and Schubert had rebutted TYR's claims of injury, the fact that FINA has now banned techsuits from competition has ruled this argument moot.

Intentional Interference with Contractual Relations
In TYR's sixth claim, TYR alleged that Erik Vendt was induced to breach his contract with TYR. TYR admitted that it did not have "direct evidence that (Speedo) induced Vendt to breach," but that TYR had evidence showing that Schubert and Stu Isaac or Speedo induced Vendt to terminate his contract with TYR. Judge Selna ruled summarily against TYR in this issue stating "to overcome summary judgment, TYR needs to show more than a scintilla of evidence. But that is all they have here; disconnected bits of circumstantial evidence."

Remaining State Law Claims
The ninth and 10th claims of potential anti-competition agreements between Speedo and USA Swimming/Schubert. Judge Selna ruled summarily against TYR stating that "While these influential promotions might be harmful to TYR and Speedo's competitors, they do not harm competition. Such promotions are competition."

More to come on this breaking story.