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≡ ENHANCED GAMES’ COURT LOSS ≡
“Defendants’ motion to dismiss the Complaint for failure to state a claim is GRANTED.”
That’s the key finding by U.S. District Judge Jesse Furman in a 33-page opinion issued Monday (17th) that dismissed – with a caveat – the lawsuit filed by the Enhanced Games against the World Anti-Doping Agency, World Aquatics and USA Swimming over their opposition to the doping-friendly Enhanced Games, slated for May 2026 in Las Vegas.
The action was filed in August, with the Enhanced Games claiming “violations of Sections 1 and 2 of the Sherman Act. The lawsuit responds to defendants’ blatantly predatory and illegal campaign to force anyone involved in the sport, including athletes, support staff and officials, to boycott the Enhanced Games and to stop the Enhanced Games from entering the market for international elite swimming.”
The prayer for damages for was $200 million, plus $600 million in trembled and punitive damages and attorney’s fees for a roughly $800 million total.
Judge Furman considered each of the claims made and dismissed the suit for failure (so far) to state an actionable, triable claim for damages. He found – barely – that there was sufficient jurisdiction for Enhanced Games to sue the three defendants, but that the claims under the Sherman Anti-Trust Act for “restraint of trade or commerce” were insufficient:
● As far as WADA is concerned, “Enhanced does not argue that there is direct evidence of WADA’s participation in a conspiracy. Instead, it relies entirely on a host of public statements by WADA condemning the Enhanced Games and encouraging national sports federations, governments, and national anti-doping organizations to work together to reject the Games. …
“Because Enhanced acknowledges that WADA ‘cannot independently ban or otherwise punish athletes that would support Enhanced,’ it is doubtful that these statements alone even constitute the kind of ‘parallel conduct’ that could support an inference of conspiracy to boycott Enhanced.” (citations omitted)
Further:
“The public calls by WADA to other organizations to ‘come together’ to condemn Enhanced are far more plausibly explained by WADA’s relative powerlessness and inability to take concrete action against athletes than evidence of its entry into a conspiracy with either or both of World Aquatics and USA Swimming.”
● As regards USA Swimming’s own communications against the Enhanced Games, “these allegations, even taken together, suffer from the same defect as those made against WADA – they are entirely consistent with USA Swimming’s own ‘independent action’ and motives to ensure ‘clean sport’ in swimming as part of its responsibilities as an [World Aquatics member federation]. They therefore do not make it plausible that USA Swimming entered into a conspiracy or agreement with World Aquatics to exclude Enhanced.”
The charge that USA Swimming is in a conspiracy against the Enhanced Games by following the World Aquatics by-law banning Enhanced Games participants and officials from World Aquatics competitions fails because
“the By-Law explicitly states the Member Federations, such as USA Swimming, are not mandated to apply the policy embodied therein; instead, ‘Member Federations may choose to apply a similar policy for national competitions and events under their jurisdiction.’”
● Charges that World Aquatics and USA Swimming have a monopoly on elite swimmers were also dismissed:
“Defendants argue that the claims fail because Enhanced fails to identify relevant, well-defined markets, because Enhanced fails to plead that World Aquatics has monopoly power in the markets it does identify, and finally, because World Aquatics had legitimate, procompetitive purposes for promulgating By-Law 10, which defeat any antitrust violation.
“The Court need not and does not address the first and third arguments because it agrees with the second — namely, Enhanced fails to plausibly allege that World Aquatics enjoys monopoly (or monopsony) power, a failure that is fatal to all of its Section Two claims.” (citations omitted)
Simply, because the World Aquatics By-Law 10 specifically applies to its own competitions, it cannot be held responsible for any impact of the By-Law by other organizations who are free to apply it or not.
So, the Court dismissed the case, BUT left open the option for the Enhanced Games to file an amended complaint within 30 days, and the opinion noted a couple of possibilities for re-consideration on holding down compensation for swimmers and a characterization of the market as colored by World Aquatics “essential” nature.
Those concepts could also fail with an amended complaint, but the door was left open.
Observed: While this case is not quite dead yet, recent facts can also influence any claim of total monopoly by World Aquatics.
The judge did not address the fact that the Enhanced Games has already announced the signing of a half-dozen swimmers, including former Olympic Games participants, who have agreed to participate next May, a fact which is sure to be cited in any upcoming replies to an amended complaint by World Aquatics.
It also does not bode well for the Enhanced Games that after an initial dust-up in 2018 – which is still being litigated – World Aquatics stood aside as the International Swimming League staged three seasons of indoor swimming meets in 2019, 2020 and 2021. The league was a financial failure, but it had many star swimmers participate, with compensation arranged by that league. World Aquatics, other than ensuring its rules were honored for safety and record purposes, did not stand in the way.
There will surely be an amended complaint filed, but the facts on the ground demonstrate that the Enhanced Games can stage its own swimming events and sign its own swimmers, as it has done. The fact that the Olympic Games and of competing without chemical assistance are attractive is not to held against the Olympic Movement, World Aquatics, USA Swimming or the World Anti-Doping Agency.
¶
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