The International Swimming League and a trio of swimmers — Tom Shields, Michael Andrew, and Katinka Hosszu — filed a joint appeal on Wednesday requesting for the Ninth Circuit to reverse a lower court’s January ruling in favor of defendant World Aquatics, reviving a long-running antitrust lawsuit that dates back to 2018.
Five months ago, the U.S. District Court in San Francisco found that World Aquatics did not violate antitrust law when the global governing threatened to suspend swimmers for competing at the 2018 Energy for Swim competition. The Sherman Antitrust Act of 1890 forbids organizations from engaging in anti-competitive behavior.
The district court sided with World Aquatics in part because they deemed the organization’s cooperation unnecessary for the ISL to host its own competitions. But the appellants argued that the policy still had an anti-competitive effect by limiting the ISL’s access to professional swimmers for its planned events in 2018. They noted how the rule had “actual detrimental effects” to the labor market, including $842,400 in prize money that would have been distributed to top swimmers at the league’s cancelled meet in Turin, Italy.
The appellants also pointed to past precedent in arguing that a refusal to deal can still be considered a group boycott if it impacts a rival’s ability to compete, even if a competitor was not totally isolated from the market. They claimed that World Aquatics’ decision to ban national federations from working with “unapproved” leagues has resulted in “lasting damage.”
“That erroneous decision threatens to undermine the application of the Sherman Act in the sports industry,” the opening brief says. You can read the full 59-page brief here.
Shields, Andrew, and Hosszu are represented by a team of attorneys from Winston & Strawn that includes Jeffrey Kessler, who has a litigated several high-profile antitrust cases for athletes (including Alston v. NCAA). World Aquatics is represented by Christopher Yates and Aaron Chiu from Latham & Watkins.
After World Aquatics’ legal victory in January, president Husain Al-Musallam released a statement calling the ruling “a good decision, not just for World Aquatics, but for the Olympic Movement and beyond.”