NIKE’S VIPERFLY RANGE AND THE RESULTANT RESTRICTIONS BY THE WORLD ATHLETICS
Author: Shivangi Pandey, I year of LL.M. from Rajeev Gandhi School of Intellectual Property Studies, IIT Kharagpur
Co-author: Balaji K Jyothi, pursuing B.TECH L.L.B. from University of Petroleum & Energy Studies, Dehradun
On February 5, 2020 NIKE launched it’s one of the most advanced innovations of all time in the field of sports shoes. It must be noted that these shoes whose price ranged around 250 dollars were specifically meant for athletes as even in it’s introduction NIKE mentions that these shoes are specifically for 100 meter races and have a lifespan of only 200 meters. These shoes called as NIKE’s Air Zoom Alphafly NEXT% was introduced in the market after a landmark change in the standards set by international authorities with respect to the usage of shoes in international competitions like the Olympics.
These shoes which were called as NIKE’s Air Zoom Alphafly NEXT% , were a new addition to the Vaporfly range and were a modified version of the Alphafly version. The predecessor version had quite a position in the market and had eventually managed to break a lot of records by professional athletes and only then international sports authorities began to look into this matter and if it should be allowed for Olympics. Viperfly combines carbon plate and ultra-springy compressed foam and because of this unique combination it used to give a “propulsion effect” and because of this effect the athletes had a sensation of having their “pogo sticks” and thus they could run faster[i]. The shoes had a mechanism of converting the energy of the player and allow maximum effect and no waste of energy. It was also observed that even the number of carbon plates in case of the Alphafly version went on to 3 but in case of Viperfly there was only one carbon plate . The authorities addressed such usage of technology in shoes and how will that eventually impact world records. It must be noted that around that time the Tokyo Olympics 2020 were about to happen and there were chances that the athletes may again choose to use such technologies. This is when the World Athletics i.e the international body responsible for governing all the essentials in sports decided to provide regulations on such kind of shoes being used in the games.
WORLD ATHLETICS’ REGULATIONS
Before these regulations, the restrictions in case of running shoes only maintained one restriction and that was Rule 144.2, which specifically barred “any technical device that incorporates springs.[ii] However it must be noted that what actually constitutes to fall under the domain of “springs” was never cleared and based on case to case analysis. Thus it was not clear if this range of shoes should be allowed in the competitions or not. Also the lack of understanding as to what constitutes spring was bound to create chaos.
This is when the World Athletics in reference to the Tokyo Olympics provided two sets of regulations consecutively to govern such technologies. The World Athletics however did not impose a complete ban on the shoes. The first set of regulations introduced on 31st January 2020, discussed as to how only those shoes that are in public domain before 4 months of competition can be used by the athletes. The rules went on to provide that the soles should not be thicker than 40 mm and shoes having only one carbon plates were also allowed. Same was again repeated in the July revisions along with other factors like setting up of the “Athletic Shoe Availability Scheme” which provided a welfare scheme so that all eligible athletes could have access to standard form of shoes which was necessary for the form of sport they were involved in. The organization was thus trying to adopt such welfare schemes herein so that inequalities in such competitions can be reduced and should be more about the player and not about the resources that they have access to.
They also maintained that for private usage or for marathons such shoes cannot be banned and thus will continue to be present in the market. The only time when their restraints are applicable is when an athlete who is involved in maintaining records ratified by them is involved. Such athlete will be eventually termed as “elite” and will have to abide by their rules. In consonance with these provisions the Alphafly version got banned owing to the usage of 3 plates whereas Viperfly continued to remain in the market.
NIKE currently has the dominant position in the footwear technology and continues to invest a lot in research and development. It continues to have the maximum number of patents in footwear technology and it cannot be neglected that NIKE has contributed a lot to this field. It can also be reasonably concluded that NIKE had launched this range specifically for professional athletes and not for general public and it is not clear if NIKE would be able to recoup it’s investment after such ban just from the sale of Viperfly. A brand that specializes in it’s innovations and has already lead to innovations like Lunarlite foam cushioning, new Trainer 1 shoe etc. and has continued to pave way for significant developments in the industry. So the confusion as to why the other innovations were allowed and why the usage of three carbon plates was rejected inspite of the propulsion effect was not quite clear.
But the restrictions by World Athletics had some significant points to cover. Where on one hand they didn’t want such technology to be involved when it came down to breaking records when such technology was not present as obviously that would be unfair. It was clear that due to the presence of the three carbon plates, an effect which would result in the conversion of energy of the athlete which would affect his speed. Also it was necessary to ensure that all players got the same treatment as by allowing such innovations which were not present in the market before four months of the competition, they would also indirectly allow prototypes and the authorities would obviously have no idea regarding the characteristics of such technology and the effects on the runner’s eventual speed. This would impede the basic objective behind such competitions so as to test the player’s speed. Rather it would be more of a competition between the manufacturers to produce more efficient technology which would help in increasing the speed of the players. World Athletics made it quite clear that people could use such shoes even for marathons, however only for legitimate competitions which would involve “elite players” such kind of technology could not be allowed to avoid any form of unfairness between the players. This would affect the sales of the shoes considering it was specifically made for racers, but it should be realized that a lot of technologies patented by NIKE has been allowed by World Athletics including the other shoe in the range called Viperfly. These innovations were allowed on the sole basis that these innovations were eventually incorporated by other manufacturers as well and thus were accessible by all players and not just to a limited few.
Though even NIKE accepted the ruling here and promised that it would avoid such kind of products that would give an unfair edge to a selected few who could afford it’s products. But the question here is that isn’t this the sole purpose of patents or any form of Intellectual Property rights, to give an innovator certain kind of incentive for his research and development. The idea of such kind of practice is admirable, but the costs incurred in investment in research and development and the amount that could have been recovered just by the marketing of such shoes when athletes would have used these shoes in Olympics cannot be neglected. The authorities could have had avoided the shoes for the Olympics rather than the imposition of a total ban on use by athletes. Also immediately after this ban NIKE went on to launch Alphafly NEXT % which fell under the standards of the organizations with one carbon plate and a sole thickness of 39.5mm, as well as newly added air pockets[iii], and this product was made accessible to the public immediately so that it did not breach the standards set by the authorities. But the line as to what kind of change breaches the standards and is not acceptable is yet not clear.
Also the fact that the product was already present in the market since 2016 and a lot of records were already broken by a number of athletes also reflects the loophole as to why this step was not adopted a bit earlier. The records which are broken by athletes like Brigid Kosgei who wore the controversial Nike Vaporflys which had three carbon plates, when she broke the women's world record at the 2019 Chicago Marathon[iv] was questioned and the legitimacy of even these records should be questioned as inspite of being a marathon as these shoes were bound to give an edge to the athletes. A legitimate international record was broken in this case as well, and the questions need to be addressed by the authorities which by far now have been neglected.
[i] FirstPost, World Athletics to tighten regulations on shoe technology after Nike's Vaporfly helps records tumble, say sources, January 24, 2020, available at https://www.firstpost.com/sports/world-athletics-to-tighten-regulations-on-shoe-technology-after-nikes-vaporfly-helps-records-tumble-say-sources-7951541.html (Last visited on December 18,2021) [ii] World Athletics, Rule 144.2(e). [iii]Reuters, Nike launches new, legal Alphafly shoe to outrun 'tech doping' furore, February 6,2020, available at https://www.reuters.com/article/us-athletics-shoe-idUSKBN2001OZ (Last visited on December 18,2021) [iv] FirstPost, World Athletics to tighten regulations on shoe technology after Nike's Vaporfly helps records tumble, say sources, January 24, 2020, available at https://www.firstpost.com/sports/world-athletics-to-tighten-regulations-on-shoe-technology-after-nikes-vaporfly-helps-records-tumble-say-sources-7951541.html (Last visited on December 18,2021)