It was hoped that the proposed relaxation to the IOC’s controversial Rule 40 would mark a significant advancement in athletes' rights, granting Olympians a fairer opportunity to market themselves at a key stage in their careers.  However, the new guidelines have proved a disappointment.  Mike Morgan and Donna Bartley examine the origins of Rule 40, the new guidelines and why this is such a serious issue for athletes.

I. INTRODUCTION

In February 2015, the International Olympic Committee (“IOC”) announced proposals to relax Rule 40 of the Olympic Charter (“Rule 40”) – one of its most controversial rules – in time for this summer’s Olympic Games in Rio de Janeiro.1

While the wording of Rule 40 itself was not altered, the IOC issued new guidelines which – according to the IOC – were supposed to relax the restrictions imposed on athletes at previous Olympic Games with regards to the management of their image during the course of the Olympic Games.

While the guidelines might initially appear to loosen the restrictions, the changes are unlikely to appease athletes who will feel that they are still not able to make the most of their marketing value at a key stage of their careers.  

II. RULE 40

Rule 40 of the Olympic Charter appears, on the face of it, to be pretty innocuous:

To participate in the Olympic Games, a competitor, team official or other team personnel must respect and comply with the Olympic Charter and World Anti-Doping Code, including the conditions of participation established by the IOC, as well as with the rules of the relevant IF as approved by the IOC, and the competitor, team official or other team personnel must be entered by his NOC.

The real issue lies with the wording of the following by-law to Rule 40:

3. Except as permitted by the IOC Executive Board, no competitor, team official or other team personnel who participates in the Olympic Games may allow his person, name, picture or sports performances to be used for advertising purposes during the Olympic Games.

Rule 40 is aimed squarely at unofficial (i.e. non-Olympic) sponsors.  It effectively acts as a “blackout” for the participating athletes, which prohibits them from featuring in any unapproved adverts during the course of Olympic Games, even if the advert makes no reference to the Games.  Astonishingly, non-Olympic sponsors would thus ordinarily be expected to suspend advertising campaigns featuring Olympic athletes during the blackout period – and any failure to do so could land their athletes in trouble.

Ahead of the London 2012 Olympic Games, the IOC issued social media guidelines, which made clear that athletes could not even mention unofficial brands, or sponsors in any posting, blog or Tweet, on any social media platforms, or on any websites and even placed restrictions on the style in which athletes could post, blog or Tweet. In particular, any social media and blogging activity at the Olympic Games was subject to the condition that:

 …it is not for commercial and/or advertising purposes and that it does not create or imply an unauthorised association of a third party with the IOC, the Olympic Games or the Olympic Movement…

…Participants and other accredited persons are not permitted to promote any brand, product or service within a posting, blog or tweet or otherwise on any social media platforms or on any website.

…The accreditations of any organisation or person accredited at the Olympic Games may be withdrawn without notice, at the discretion of the IOC, for purposes of ensuring compliance with these Guidelines.   The IOC reserves all its rights to take any other appropriate measures with respect to infringements of these Guidelines, including issuing a Take Down Notice, taking legal action for damages, and imposing other sanctions...2

And if the threat of losing your accreditation wasn’t sufficient incentive, breach of Rule 40 could – according to Rule 59 of the Olympic Charter – also lead to the disqualification of the offending athlete’s results from the Olympic Games, including the loss of any medals.3

What all this means is that unless you happen to be lucky enough to be in the very small minority of athletes who are sponsored by an official Olympic sponsor, you are denied the freedom to exploit your own image commercially, at what is likely to be a once in a lifetime opportunity to do so.

III. THE HISTORY OF RULE 40

Regulation by the IOC of the advertising activities of Olympic athletes dates back to the early 1960s, when the rules were aimed at ensuring that athletes remained strictly amateur.4 Rule 40 was first incorporated into the Olympic Charter in 19915 and was intended to protect the official Olympic sponsors, who pay millions of dollars for exclusive global rights to be associated with the Olympic Games, from “ambush marketing” – i.e. commercial entities who are not official sponsors but that nonetheless attempt to associate their products with the Olympic Games.

In 2012, the then President of the IOC, Jacques Rogge, was emphatic that strict protection of these commercial rights was essential to the survival of the Olympic Games themselves.6In the President’s Press Conference on 21 July 2012, Rogge said: Our position is very clear.  We have to protect the sponsors because otherwise there is no sponsorship and without sponsorship there is no Games.7

While that may well be true, so too is the fact that there would be no Games and no value to sponsorship without the athletes.  Few would dispute that the image and performances of the athletes have contributed enormously to the rise in the profile and marketability of the Olympic brand.

The Olympic Games have come a long way since Baron Pierre de Coubertin revived them back in 1896.  The Games are now a multi-billion dollar industry.  Many of the participating athletes are professional athletes and, for many, the Olympic Games represent the pinnacle of their careers.  While global superstars like Usain Bolt and Michael Phelps are not going to struggle to make ends meet, the issue with Rule 40 is at its starkest with regards to lesser-known athletes; athletes who rely on sponsorships to make a living and most of whom will only gain media attention during the Olympic Games.

The rise in popularity of social media has enabled athletes to be more pro-active in marketing themselves and it was using this platform, that a group of American athletes, including Sanya Richards-Ross and Nick Symmonds launched a Twitter campaign at the London Olympics in 2012 using the hashtags #wedemandchange and #rule40, to raise awareness of the restrictive nature of Rule 40.8

It is, one suspects, in no small measure a result of their efforts that the IOC finally agreed to relax the application of Rule 40. Whether the change goes far enough to placate the campaigners is, however, another matter.

IV. THE NEW GUIDELINES

The blackout period for the 2016 Olympic Games begins on 27 July (i.e. nine days prior to the Opening Ceremony) and concludes on 24 August 2016 (i.e. three days after the Closing Ceremony). Under the new guidelines, non-Olympic sponsors will be allowed to continue with pre-existing, generic advertising campaigns during the blackout period, provided the campaign has been approved in advance by the IOC, or the relevant NOC.  It will not, however, be possible for non-Olympic sponsors to launch new advertising campaigns during the blackout period, as that would be seen as benefiting from the appeal of the Olympic Games.9

IOC Spokesperson, Mark Adams, explained at the time of the announcement in February 2015, "[the amendment to Rule 40] has to do with advertising around the games, on a social media site, or newspaper, or whatever...So if someone has a contract with a watch manufacturer, that may continue as long as the advert doesn't relate to the games.10

What all this means is that the IOC should not, in theory, interfere with athletes’ existing commercial relationships as long as any ongoing advertising does not imply any connection to the Olympic Games and as long as no advertising campaign (of any kind) is launched during the blackout period.

Those athletes who took issue with Rule 40 in 2012 are unlikely to be satisfied with the changes, since they (the athletes) still cannot make any reference to their participation at the Olympic Games for any commercial purpose. For instance, non-Olympic sponsors are prohibited from referring to an athlete’s performance if the reference uses any of the following words:

The use of the following words is also not permitted if the IOC or NOC consider that there is a risk – in the context of the advert – that it could create any association with the Olympic Games:

Finally, athletes (and their sponsors) may well also baulk at the prospect of having to seek the approval of the IOC and/or NOC simply to continue running an existing advertising campaign during the period of the Olympic Games.

V. SOCIAL MEDIA

The latest IOC Social and Digital Media Guidelines, once again, place restrictions on the manner in which athletes interact on social media platforms:

Accredited persons must not use social and digital media for any commercial and/or advertising purpose, in particular in a way which creates or implies any association between, on the one hand, a third party (or a third party’s products and services) and, on the other hand, the IOC, the Games or the Olympic Movement, unless they have obtained the permission from the IOC and/or the relevant National Olympic Committee beforehand.

The conditions under which accredited competitors, coaches, trainers and officials may allow third parties to use their person, name, picture or sports performances for advertising purposes, including on social and digital media, are described in the Guidelines on Rule 40 of the Olympic Charter issued by the IOC and the relevant National Olympic Committees.11

Interestingly, the latest IOC Social and Digital Media Guidelines even prescribe that “[p]ostings made by, or on behalf of, accredited persons should at all times conform to the Olympic values of excellence, respect and friendship and must not be undertaken for the purposes of demonstration...”.  It is not clear to what extent that restriction is supposed to apply but one would hope (and expect) that it is not intended to be used as a tool to prevent athletes from staging any form of protest such as the #wedemandchange and #rule40 campaigns of 2012.

The Olympic Charter contends that “the practice of sport is a human right”. While there is no doubting the value of sport, freedom of expression is a right enshrined in both the European Convention on Human Rights and the Universal Declaration of Human Rights. Any attempt, therefore, to restrict athletes from expressing dissatisfaction with regards to Rule 40 during the Olympic Games would no doubt be seen as an incursion too far on one of the most fundamental human rights.

VI. A WIDER ISSUE

The lack of freedom for athletes to utilise crucial marketing opportunities is not an issue that is limited to the Olympic Games. 

By way of example, track and field athletes who compete in the IAAF World Championships are frequently subject to contractual limitations imposed by their national federations, which place significant restrictions on the rights of the athletes to market their own image.  As with Rule 40, these contractual restrictions are intended to protect the interests of team sponsors.  An athlete’s selection for such events often depends upon his/her agreement to these restrictive terms – the reality being that athletes have no real bargaining power. 

Nick Symmonds, an elite track and field athlete, knows this all too well.  Symmonds won the 800m title at the USA Outdoor Track and Field Championships in June 2015, but was excluded from Team USA for the 2015 IAAF World Championships in Beijing because he refused to sign a contract agreeing to wear Nike kit at all team functions.12 In particular, Symmonds had refused to sign following a dispute over the meaning of certain terms of the contract. The final straw, if one was needed, appears to have been the following wording of a letter sent to Symmonds and other prospective Team USA athletes by USA Track & Field (“USATF”):

Note – It is your responsibility to bring your entire Team USA uniform. Additionally, you are required to wear the Nike Team USA apparel (includes under layer apparel, bandanas, headbands, hats, sweatbands, wristbands, socks, sports bras, travel bags, etc; but shall exclude sunglasses, watches and shoes) at all team functions throughout the trip, including at the athlete hotel, during training, press conferences, competition and award ceremonies. Accordingly, please pack ONLY Team USA, Nike or non-branded apparel and be sure to bring your Team USA gear.

Given the limited opportunities that track and field athletes have to earn from their on-field activities, that level of restriction appears excessive and unfair.

While there is prize money at stake at the IAAF World Championships (reserved for the eight finalists), the sums are certainly not staggering – just USD $60k for gold, USD $30k for silver, and USD $20k for bronze – particularly when considered that the World Championships only occur every two years. To make matters worse, the prize monies have not risen for over a decade despite the increased exposure of the sport associated with the emergence of Usain Bolt and despite the IAAF’s claims in 2008 that (1) its reserves had increased by USD $60 million between 1999 and 2008; and (2) it generated broadcasting revenues worth around USD $400 million.13

Presumably having reached breaking point, Nick Symmonds announced in January that his company – Run Gum - had initiated legal proceedings against the US Olympic Committee (“USOC”) and USATF.14 The thrust of the claim is that the restrictions imposed on US track and field athletes as to the type of sponsorship that may be displayed on athletes’ kits at this year’s US Olympic Trials are anti-competitive.15  While Run Gum’s complaint relates only to the 2016 US Olympic Trials and does not extend to the restrictions imposed at the Olympic Games, it makes the argument that the effect of the restrictions at the Olympic Trials is that “athletes…have received and/or will receive less revenue for their sponsorship than they would receive in a competitive market…”. If that proves to be right with regards to the US Olympic Trials, then one would suspect that the argument would also prove to have some weight with regards the restrictions imposed by Rule 40.

VII. CONCLUDING REMARKS

Even with the relaxation of Rule 40, there is no doubt that the restrictions on the rights of Olympians to exploit their own image are still far too limiting.  It is difficult to think of any rational argument as to why athletes should be denied a share of the spoils enjoyed by the IOC, sponsors and broadcasters.  

If the IOC is not prepared to remunerate participating athletes, it should – in the interests of fairness and in recognition of the critical role that athletes play in the success and marketability of the Games – seek to strike a sensible balance which protects the rights of official sponsors on the one hand, while affording athletes the right to exploit their image/performances during the Games on the other. Rule 40, as it stands, does not do that.

One obvious concern for athletes is that the level of restrictions put in place at the Olympic Games and other major events reduces their marketability and, therefore, their value in the eyes of (non-official) sponsors. At best, that means less lucrative sponsorship contracts.  At worst, non-official sponsors may simply turn their backs on athletes whose only significant exposure comes from participating at the Olympic Games – in other words, the vast majority of Olympians.

There is no doubt that sponsors are important for the success of major sports events and that their commercial rights must also be protected.  However, ask yourself this – how successful would an Olympic Games, a World Championship or, indeed, any sports event be without athletes?

While Nick Symmonds has so far led the charge for greater athlete rights, one suspects that athletes will eventually have to organise themselves to act as a collective to ensure a more equal footing at the bargaining table.

Mike Morgan

Morgan Sports Law LLP, London

mike.morgan@morgansl.com

Donna Bartley

Morgan Sports Law LLP, London

donna.bartley@morgansl.com

[1] “IOC relaxes rule on athletes, sponsors at Olympics” USA Today, 26 February 2015 (available at http://www.usatoday.com/story/sports/olympics/2015/02/26/ioc-relaxes-rule-on-athletes-and-sponsors-during-olympics/24084119/)

[2] IOC Social Media, Blogging and Internet Guidelines for participants and other accredited persons at the London 2012 Olympic Games, Version 31 August 2011 (available at http://www.olympic.org/documents/games_london_2012/ioc_social_media_blogging_and_internet_guidelines-london.pdf)

[3] See Rule 59.2 of the Olympic Charter.

[4] See the Official Interpretation of Rule 26 contained in the 1962 version of the Eligibility Rules of the International Olympic Committee, which included the words “…f an athlete is paid for the use of his name or picture or for a radio or television appearance, it is capitalization of athletic fame…” (available at  http://www.olympic.org/Documents/Olympic%20Charter/Olympic_Charter_through_time/1962-Eligibility_rules_of_the_IOC.pdf)

[5] See By-law 4 to Rule 45 of the 1991 version of the Olympic Charter (available at http://www.olympic.org/Documents/Olympic%20Charter/Olympic_Charter_through_time/1991_Olympic_Charter.pdf).

[6] “IOC prez plays down brand police”, ESPN, 21 July 2012 (available at http://espn.go.com/olympics/summer/2012/story/_/id/8187217/2012-summer-olympics-ioc-president-jacques-rogge-plays-brand-police-london-games)

[7] Ibid

[8] “Olympic athletes take to Twitter to rally against strict sponsorship rules”, The Guardian, 31 July 2012 (available at http://www.theguardian.com/sport/2012/jul/31/olympic-athletes-twitter-sponsorship-rules)

[9] IOC Use of Participant’s image for advertising purposes during the Rio 2016 Olympics Games, Rule 40 of the Olympic Charter: What you need to know as a Participant (available at  http://www.olympic.org/Documents/Athletes_Information/Rule_40-Rio_2016-QA_for_Athletes.pdf)

[10] “IOC eases on ‘Rule 40’ after protests from athletes”, ESPN  (By The Associated Press), 28 February 2015 (available at http://espn.go.com/blog/olympics/archive/_/month/february-2015)

[11] IOC Social and Digital Media Guidelines for persons accredited to the Games of the XXXI Olympiad Rio 2016, October 2015 (available at http://www.olympic.org/Documents/social_media/ioc_social_digital_media_guidelines_rio2016_final_eng.pdf)

[12] “Nick Symmonds to miss worlds after failing to sign USATF contract release”, ESPN, 10 August 2015 (available at http://espn.go.com/olympics/trackandfield/story/_/id/13407856/runner-nick-symmonds-miss-15-world-championships-clothing-contract-language)

[13] “The IAAF Responds To 'Bankruptcy' Article”, Track & Field News, Undated (available at http://trackandfieldnews.com/index.php/display-article?arId=41575)

[14] “Olympian Nick Symmonds’ company files lawsuit vs USOC and USATF”, Sports Illustrated, 20 January 2016 (available at http://www.si.com/more-sports/2016/01/20/nick-symmonds-lawsuit-usoc-usatf-run-gum-athlete-sponsorship-us-olympic-trials)

[15] Gold Medal LLC D/B/A Run Gum v. USA Track & Field and United States Olympic Committee, Case No.: 6:16-cv-92 (available at https://cdn.shopify.com/s/files/1/0604/3429/files/Run_Gum_Complaint_Filed_1-20-16.pdf?14693922176033077381).