ADVERTISING Olympic Rule 40 Guidelines: #W eDemandClarification of their accomplishments 4. Athletes The Olympic Charter extols the During the London 2012 Olympic participating in the London Olympics’ high ethical values and games, athletes raised serious Olympic Games in 2012 raised de-emphasis of the concerns about the way the awareness of this injustice by commercialisation of sports 12 . The International Olympic Committee launching a social media campaign massive amounts of money that (‘IOC’) managed commercial called ‘#WeDemandChange.’ 5 With official sponsors dole out to be Rio 2016’s opening ceremony less associated with the Olympics, marketing and restricted athletes’ than a year away, the IOC has still however, tend to obscure that possibilities to exploit their image not repealed Rule 40, but instead, idealistic picture 13 . At its core, rights in the context of the games. has issued vague guidelines to Rule 40’s purpose is to discourage The #WeDemandChange campaign address Olympians’ Rule 40 waiver ambush marketing and by requests 6. implication, force interested uncovered stringent regulations that This Article examines the Rule 40 advertisers to sign up as official protected official sponsors and guidelines and concludes that the sponsors (for a pretty penny, of reduced the athlete’s possibilities to IOC must clarify the guidelines to course). capitalise on the Olympic avoid potential arbitrary, The IOC’s recourse against an opportunity. Alessandro Oliverio, unreviewable, and disparate unofficial sponsor’s ambush determinations on Olympians’ marketing is to either sue in court Chair of the Sports Law Practice, Rule 40 waiver requests. or to wield its own authority over and Chistopher M. Delp, Of the athlete featured in the Counsel, at OLF Law Firm, review How Rule 40 operates advertisement with the ultimate in the new guidelines from the IOC to The Olympic Charter, Rule 40 terrorem penalty: stripping the gives the IOC’s executive board the athlete of their medals! 14 address these concerns and pose exclusive right to determine the new questions concerning potential conditions under which any form Guidelines for Rule 40 waivers prejudices contained within the new of promotion and publicity is Amid the protests over Rule 40’s set of rules. permitted during the Olympic draconian restrictions, the IOC Games, including any promotion could have amended or even or publicity in which the athletes repealed Rule 40’s advertising Introduction themselves might participate in 7. prohibition. The IOC chose to The Olympic Movement (the Rule 40 generally prohibits leave the Olympic Charter’s ‘Olympics’) is governed by its own Olympians from advertising with language untouched in this regard private legal order whose unofficial sponsors during the and instead issued guidelines jurisdiction is based on the Games 8. Consequently, Olympians under which unofficial sponsors participating athletes’ contractual are not permitted publicly to could apply to NOCs to waive Rule agreement to recognise the acknowledge, endorse, or even 40’s prohibition, allowing athletes Olympics’ authority 1. Under the mention unofficial sponsors, to engage in certain promotions, Olympic Charter, Rule 40, the including on Olympians’ social advertisements, and publicity 15 . In International Olympic Committee networking accounts 9. February 2015, the IOC delegated (‘IOC’) determines the type of The Olympics have an interest in practically all responsibility for advertising permitted during the maintaining their financial model, processing these waiver requests to Olympic Games 2. Rule 40’s as well as the exclusive right to the various NOCs, and the IOC restrictions on advertising protect advertise, which is enjoyed by the issued a set of guidelines for the the Olympics’ intellectual property IOC and the official sponsors of NOCs to follow in deciding from ambush marketing by third the various National Olympic whether to grant the athletes’ parties who are not official Committees (‘NOCs’) 10 . Rule 40 waiver requests (the ‘Guidelines’) 16 . Olympic sponsors 3. was passed in 1991 to shield these Whether Olympians may advertise While protecting the Olympics’ interests primarily from unofficial with unofficial sponsors during the interests, Rule 40’s prohibition can sponsors’ ambush marketing, in 2016 Olympic Games in Rio de unduly limit Olympians’ ability to which third party brands benefit Janeiro depends on how NOCs profit from the unique opportunity Alessandro from the athlete’s association with interpret the Guidelines. that their participation in the Oliverio the Olympic Games without Olympic Games affords them by having to pay a royalty to the IOC Procedural flaws depriving them of the rightful fruit or any of the NOCs 11 . The Guidelines open with a

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permissive general rule and then Earlier drafts and guidelines association’, the USOC did whittle away at that permission prohibited an undue direct or somewhat solidify its procedure for with numerous procedures, ‘indirect association’ with the processing waiver requests. exceptions, and caveats that Olympics 23 . Under the USOC’s procedure, ultimately render the general rule On its face, the provision seems waiver requests must be submitted meaningless. The general rule clear enough, as it intends to online by 27 January 2016 25 . On the permits an Olympian to advertise protect Olympic property, such as one hand, this deadline prejudices with an unofficial sponsor, so long logos, flag, emblems, anthem, and athletes who are not sure whether as the advertisement does not Christopher M. designations from ambush they will even qualify for the Delp directly or indirectly create the marketing and any other kind of Games by that date, as ‘impression of a commercial unlawful economic exploitation of qualifications differ from sport to connection’ between the unofficial Olympic intellectual property. A sport and are sometimes not sponsor and the Olympics 17 . closer look, however, reveals that determined until weeks before the Once an Olympian submits a the meaning of ‘indirect Games begin. On the other hand, waiver request to the pertinent association’ is unclear. This term is an early submission deadline NOC, the NOC has 21 calendar open to differing interpretations encourages timely decisions by the days to ‘answer.’ 18 The NOC must because the Guidelines do not USOC, avoiding potential errors determine whether the proposed provide interpretation parameters that often attend a hurried, last advertisement campaign creates to determine to what extent an minute judgment. the prohibited commercial advertisement relates to the The proposed advertisement may connection and considers a list of Olympics 24. be in a conceptual, rather than factors, including a list of A narrow or broad interpretation final, form. The submission must prohibited ‘terms’ and ‘expressions’, of ‘indirect association’ may lead to contain an advertising schedule such as ‘Olympic’, ‘Rio’, ‘2016’, and conflicting decisions on whether to that starts no later than 27 March ‘Medal’, to name but a few 19 . If a grant Rule 40 waivers. The phrase 2016 26 . By starting the waiver request survives this assumes a discretionary intellectual advertisement’s run-time four gauntlet, then the NOC has yet activity by the decision maker, the months ahead of the Rule 40 another mechanism to axe the NOC, to determine whether an period, the risk of the public request: the NOC is entitled to unofficial sponsor’s advertisement associating the unofficial sponsor write its own additional rules and falls within the possible exceptions. with the Olympics will be reduced, deny the waiver request on that NOC discretion jeopardises the relative to an advertising campaign basis 20 . Guidelines’ uniform application. that starts when the Games begin. The potential lack of For example, two or more NOCs transparency in the decision addressing identical or similar Hypothetical case study making process demands close waiver requests could possibly A recognised Brazilian athlete, attention. According to the grant and deny the waiver, Rodrigo the Great, living in Rio de Guidelines, the NOC must inform respectively, due to a difference of Janeiro and eligible for the next the IOC and provide its reasoning opinion about the meaning of Olympic Games, through his only when the NOC grants a ‘indirect association’. The risks of sponsor, a sportswear company, waiver 21 . Apparently, the IOC wants confusion and discrimination are sends to the Brazilian Olympic to be informed only when an NOC high, as this article’s hypothetical Committee (‘COB’), three waiver grants a waiver, but not when it case study further demonstrates. requests for the following billboard denies one. Allowing an NOC to campaigns, which will run through deny a waiver request without the The USOC’s implementation the Rule 40 period: accountability of having to give a The United States Olympic G Th e first campaign features reason contravenes basic principles Committee (‘USOC’) was one of Rodrigo standing against a of fairness and justice. the first NOCs to implement the panoramic view of Rio de Janeiro, Guidelines, and other NOCs will wearing street clothes made by his Substantive flaws likely look to the USOC’s sponsor that is neither an IOC nor The Guidelines prohibit unofficial implementation activities as an NOC partner. The campaign sponsor’ advertisements that either a benchmark. Although the USOC will take place in Brazil only. directly or indirectly create the did not address substantive G The second campaign is impression of a commercial matters, such as the interpretive identical to the first, except that the association with the Olympics 22 . problem of the phrase ‘indirect campaign will take place in the

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United States only. Allowing an would not be instantly associated association. Failing any of these G The third campaign takes NOC to deny with the 2016 Games in the minds measures, the IOC should at least place back in Brazil, except a waiver of Brazilians, the USOC might find convene after the 2016 Games and Rodrigo is wearing the sportswear request differently regarding scenes of Rio examine the impact of the without the company’s sports apparel, as accountability de Janeiro displayed in the United Guidelines on Olympic intellectual opposed to street clothes. of having to States. Americans might more property. If, however, ultimate The COB make a decision on the give a reason quickly associate the image of Rio discretion is left to the various first and third billboard campaigns, contravenes de Janeiro with the Olympic NOCs themselves, th is could give but will transfer the second request basic Games. Naturally, denying the way to abuse, and London 2012’s principles of to the USOC. fairness and waiver request on these grounds great ‘#WeDemandChange’ The COB and the USOC’s, justice would preclude a much broader campaign could easily become Rio decision making process will range of advertising content than 2016’s ‘#WeDemandClarification’ determine whether these what would have been permissible campaign! campaigns are directly or indirectly under the first campaign. associated with the Olympics. In Moreover, the expansive range of Alessandro Oliverio Partner Christopher M. Delp Of Counsel this hypothetical case study, direct reasons to possibly deny a waiver OLF Law Firm, Rome association is excluded because the might provide cover for an [email protected] IOC’s intellectual property appears economic motive to deny the in none of the three campaigns. request, such as anti-competitive 1. Intl. Olympic Committe , Olympic Charter (Aug. 2, 2015). The question to be answered on a favouritism toward an IOC or 2. Olympic Charter, sup n.2 at 79, r.40:3. case-by-case basis is whether the NOC partner company. 3. See U. N. Carolina Dept. Commun. campaigns create an indirect In Rodrigo’s third campaign, the Stud., IMCHawks, Ambush Marketing, Rule 40, and the Sochi Controversy You association between the unofficial sports uniform campaign back in Aren’t Hearing about, (5 Feb. 2014). sponsor and the Olympics. Brazil, the change in clothing 4. Ibid, sup n. 4. Is Rodrigo’s first campaign, the might tip the COB toward denying 5. Ken Belson, Olympians Take to Twitter street clothes campaign in Brazil, the waiver request, because, similar to Protest Endorsement Rule, N.Y. Times B11 (31 July 2012). indirectly associated with the to sharing the colours of the 6. Assoc. Press, USAToday.com, IOC Olympics and therefore banned Olympic flag, the sports uniform Relaxes Rule on Athletes, Sponsors. under Rule 40? One might think might make a strong association 7. Olympic Charter, sup n.2 at 79, r.40:3. that it would not be, since the with the Olympic Games in 8. Ibid. 9. See lOC cit 3, sup n. 4. image of Rio de Janeiro is not viewer’s minds. Other factors 10. Assoc. Press, FoxNews.com, coextensive with the scene of the might include whether Olympic Olympians Tiptoe around Sponsorship city itself, which comprehends venues are visible in the Ban, http://www.foxnews.com/sports/ 2014/02/18/in-sochi-athletes-tiptoe- much more than the Games that background panorama of Rio de around-olympics-sponsorship-ban-ioc- will take place there. Local Janeiro. says-open-to, 18 Feb. 2014. Brazilian viewers would not 11. See lOC cit 3, sup n.4. instantly think of the Olympics Conclusion 12. Olympic Charter, sup n.2 at 13. 13. Belson, supra n. 6. when they see an image of their While it is clear that no NOC will 14. Olympic Charter, sup n.2, 79, r.40:3. own city. But what if the billboard’s grant a Rule 40 waiver for an 15. Guidelines, supra n. 10 at ¶ A. dominant colours are the same as advertisement displaying Olympic 16. Ibid. at ¶¶ B–C. of the Guidelines. 17. Ibid. at ¶ A(1). the Olympic flag? The COB could intellectual property - as such 18. Ibid. at ¶ B. deny the waiver request on would create a direct association 19. Ibid. at ¶ C. grounds that the campaign could between the unofficial sponsor and 20. Ibid. at ¶ E generate confusion among the the Olympics - the Guidelines’ lack 21. Intl. Olympic Comm., Guidelines for NOCs Regarding Rule 40 of the Olympic general public and unconsciously of interpretive guidance renders Charter § 2.2.2; Feb. 2014. Available at: create an association with the unpredictable how the NOCs http://www.olympic.org Olympics. This underscores that might decide all the cases that may 22. Guidelines, sup n.10 at ¶ A(i). one small factual nuance could or may not have an indirect 23. Loc cit 15, sup n.25. 24. But see ibid. at § 5. 25. Infra PartIV. lead to drastically divergent results. association with the Olympics. 25. Ibid. Is Rodrigo’s second campaign, the Absent an amendment or repeal of 26. Ibid. US street clothes campaign, Rule 40’s text itself, the IOC should indirectly associated with the issue more definitive direction on Olympic Movement? While a how to decide cases that present scenic image of Rio de Janeiro the question of indirect

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