Friday, May 29, 2009

TYR Sport inc. vs USA Swimming/Speedo/Mark Schubert/Erik Vendt pre-trial ruling

I have uploaded the ruling for the pretrial motions in the TYR versus USA Swimming/Speedo/Mark Schubert/Erik Vendt lawsuit to my personal website for downloading.

I ask humbly for others to upload it to their sites too or just go ahead and post the whole 26 pages so my personal site won't get so hammered.

Here is a link to the PDF: [Link]

Now, I am going to drop an opinionated bomb here and I hope FINA is reading. This is my opinion only: If any paid Speedo endorser was on the voting tribunal that decided which suits should be FINA approved and which suits should not be approved, please take note that the same antitrust situation that USA Swimming is having to defend against could be applicable to FINA if European law is similar to that of US law.

Nullify that vote if this is the case!

Let me phrase it this way - I suspect a class action suit is not out of the question if it means Jaked, blueseventy, Diana and others are "run out of town" over a "paid-vote" or two rather than straight science!

Update from yesterday:

Why this lawsuit is not as Craig Lord says, "...on the fringe of the current suits crisis," but rather at "grand zero" is that According to TYR, Speedo is being accused of setting up USA Swimming as a covert marketing arm for it's products so as to set up a de facto monopoly in the high-end suit market.

The judge seems to agree with 9-out-of-10 assertions that this is the case. Most notably the hiring a paid endorser of Speedo; (Coach Mark Schubert), to convince the USA Olympic Swim Team to wear nothing but Speedo. According to TYR, blatant lies were used to sell swimmers such as Erik Vendt that this was the case.

With that said, One has to ask, and certainly Craig Lord isn't asking this, is Speedo doing this same nonsense with FINA and is FINA merrily buying into, or being handsomely "bought" into doing this?


Anonymous said...

Hey Tony:

Pasted from the ruling:"Rather, TYR alleges that USA Swimming engaged in an entirely separate
set of activities – acting as a promoter of Speedo products; making false statements that
Speedo’s products are “superior” and that its rivals’ products are “inferior”; and altering
images of sponsored athletes to remove logos of Speedo’s competitors.
(Compl. ¶¶ 11,
15-17, 22.)"

Makes you wonder how many people at USA Swimming are on the Speedo payroll. Seems like only a person in a position of authority could make logo's of comeptitiors dissapear!

Has anyone asked that question????

Tony Austin said...

Good question. I wonder who ordered that?

Anonymous said...

TYR says Vendt had a contract with TYR at the time.

Vendt's side says he had no contract at the time.

The swimming community thought he was free from TYR (the word on the street was that the contract was thru 2006 and that Vendt had no suit sponsor from 06-08).

If its true that he had no contract then this is law at its worst.

Schubert is another story, though.

Tony Austin said...

Erik Vendt was indeed under contract and in my opinion was bamboozled out of it and was given bad legal advice.

On page 19 Speedo makes no argument that Vendt's contract was at will or that it was expired

On page 20, the judge declares that his contract stated that he must display TYR Products and TYR logos when he swims.

Paul said...

This is an interesting case but I caution you not to read too much into the court's decision. This was a motion to dismiss, not a decision on the merits. In such a motion everything that the plaintiff alleges in the Complaint must be assumed to be true. The motion simply asks the court to say, as a matter of law, so what; the allegations do not state a claim. that's why the decision sounds so bad; it assumes that the bad things alleged in the Complaint are true. It will be interesting to see how this all plays out.

Tony Austin said...

Thank you, Paul, for the assessment. I should have noted that.

I am going to publish a Peter Marshall deposition that supports TYR's claim that Schubert made the claims that he did.

Also, I posted a snippet of a depo last year that states that the Science guy at USA Swimming said that no tests existed that supports Schberts claims of a 2% advantage.

The Vendt contract is a document which will be submitted so we will be able to see the merits therein. The judge quoted from it so there must be something there .

The TYR logo that was airbrushed off of Erik Vendt in an issue of Splash magazine exists as well as will be submitted.

The exclusive deal USA Swimming has with Speedo for Splash and the website will be easy to verify as well.

As you know, I am biased and perhaps my bias is getting in the way of what I am seeing, but so far, what i am seeing does not look good for Speedo.

Anonymous said...

Hey Tony:

This document is one of the best items you have ever posted...


Tony Austin said...

Wow! that's a nice compliment. To bad I didn't write it myself. ;-)

Anonymous said...

Hey Tony:

A snippet from an Associated Press article about the TYR/Speedo case:

“Speedo declined comment on Selna's 26-page ruling but has denied any wrongdoing. More than 100 world records were set last year, mostly by swimmers wearing the suit Speedo developed with help from NASA.”

I hope during this litigation the TYR lawyers sapena those from “NASA” that allegedly helped with the suit, to verify the claims Schubert made about science behind the suit. I have “Googled” all over the place and never seen any comments from any NASA officials, nor has there been any mention of this technology on the NASA web site.

Tony Austin said...

Here is a quote that I got from the American Lawyer Daily:

"... Last Tuesday, TYR's legal team at Hewitt & O'Neil filed a huge batch of papers, including the deposition of Genadijus Sokolovas, USA Swimming's former director of physiology, in which Sokolovas said that Schubert's comments were "pure speculation" without any science to back them up...."

There was no study, there was no evidence. Apparently Coach Schubert made the whole thing up singe no such study has been entered into the discovery portion of the this lawsuit.

Anonymous said...

Well if there was no study, doesn't that mean that Speedo made the whole thing up?

Don't you think Schubert is going to say that he got his info from Speedo?

Q-Swim said...

To follow on to Paul's comment, on a motion to dismiss the court is required to accept as true all fact allegations and then determine whether the facts construed in the light most favorable to the plaintiff would be sufficient to state a claim that will be allowed to proceed. TYR will be afforded an opportunity to file an amended complaint to "cure" the defect in its trade libel claim, i.e., to allege what are known as "special damages". I cannot speculate why special damages were not pleaded in the first instance but expect that TYR can plead special damages since the term simply means that TYR incurred real damages, quantifiable, such as lost sales and profits. Speedo will then file an answer to the complaint, which will most likely consist of a general denial and affirmative defense, preserving its, and USA Swimming's, contention that there is some sort of antitrust immunity that protects USA Swimming's actions and that Speedo benefits from that as well, albeit derivatively. Based on Tony's several follow up entries TYR will likely be able to prove 1) Schubert said what he said about the 2% advantage, and 2) that the claim of scientific support was at least overstated if not outright false. Either the suits were tested or they were not. The claims made in the promotional material by Speedo that used number of winners as some sort of objective support for its claim of product superiority should be exposed as specious once the numbers are tallied, e.g., how meaningful is it to say X% of the winners wore the LZR suit when that % or greater were wearing the LZR suit.
I am looking forward to reading the anticipated complaint that B70 is to file to see how FINA et al establish the efficacy of its purported testing that established air pockets in certain suits that provide some sort of unfair advantage to the user.
Ordinarily, I find the intervention of the legal system into sports a distasteful example of how lawyers (of which I am one) have intruded way too far into everyday life but in this case if TYR's allegations can be supported this process will level the playing field (or pool deck).

Tony Austin said...

The original TYR brief has his quote in it stating that Schubert stated that "we did the tests" and it is 2% faster. It most likely means that Schubert made the whole thing up to leverage Speedo unto the athletes. This is my opinion.