TYR's action against Speedo, USA Swimming and Mark Schubert appears to be petering out. After a morning court hearing, with more to come later in the day in the US, Judge James V. Selna indicated that he intends to rule in favour of Speedo, USA Swimming and Schubert, according to sources close to the case in California.
Tentative rulings even went as far as to suggest that the case would be judged not to have enough merit to reach full trial.
The TYR case rested on federal and state antitrust claims, with the US suit maker alleging that Speedo, USA Swimming and Schubert acted in a way that restrained trade, while USA Swimming served, in effect, as an agency for Speedo. Judge Selna ruled that for such claims to be proved, TYR would have to show that coercion took place and that there was active restraint against TYR.
Such a case was always likely to founder for one very big reason: US swimmers are allowed by the very policy of USA Swimming to wear whatever suits they wish to wear when representing the USA. As to Schubert coercing anyone, as seen in the light of comments he made to SwimNews here, the judge suggested that coercion would only have come into play had Schubert had the power to exclude swimmers from the Olympic team. He had no such power, of course, the 1-2 finish and a clean anti-doping test the ultimate judges of whether a clean swimmer makes it to the Games for the USA.
On various levels, Judge Selna ruled that Schubert's behaviour was not coercive in nature. The judge also said that research collaboration between Speedo, USA Swimming and Schubert was not anticompetitive. He went on to rule against TYR in its claim that Schubert used only information favourable to Speedo when talking about shiny suits.
The fact that Schubert had worked closely with US swimmers and Speedo on the LZR since early 2007 appears to have been overlooked by those raising a case against him: it might have been expected that he would know far more about the properties and effects of the Speedo suit than any other around at the time the LZR was launched and started to have an immediate and vastly significant effect on swimming speed.
The judge ruled in Schubert's favour too when it came to the 2% claim first made in this SwimNews article.
As we noted in entry 18 in our Top 100 Memories series, Schubert knew who he was talking to and he knew I knew of his relationship with Speedo. Most people in the sport knew, of course. In no way was that 2% claim false, nor was it made in a way that injured TYR, the ruling suggested. SwimNews analysis at the Manchester world s/c championships proved the validity of the claim. Injury could no longer be considered relevant, the ruling suggested, according to sources, because the suits are now banned.
Worth noting that Schubert and USA Swimming played a key role in bringing about the ban on performance-enhancing equipment, a decision that cost Speedo a vast amount of money.
The judge also ruled against TYR in its claims that Erik Vendt was induced to breach the terms of his contract with TYR by wearing the Speedo LZR.
Lawyers for TYR ended the day by asking for further consideration of one of the issues slated in the case. The judge granted that request and the case will return before the judge in the near future.
Meanwhile, the tentative rulings come in a week that saw the Spanish federation revert to a contract with Speedo after a year under contract with TYR. In the wake of suit wars and the turmoil of broken loyalties - which worked for and against all suit makers one way or another - longer-term relationships are being rebuilt in the race pool against a backdrop of fragile economic times.
Spain has signed a four-year deal with Speedo. The contract will see Spanish teams and athletes in Swimming, Synchronised Swimming, Open Water and Diving compete in Speedo equipment at all national and international events until February 2014.
