At the end of October, the British Olympic Association (BOA) released its guidelines for Team GB athletes and the exploitation of personal sponsorship rights during the Olympic Games. This followed the decision by the International Olympic Committee (IOC) to relax its widely scrutinised Rule 40.
The BOA's updated guidelines permit Team GB athletes to post a single "thank you" message to each of their personal sponsors during the Games. However, a collection of 20 Team GB athletes (including Sir Mo Farah, Katarina Johnson-Thompson and Adam Gemili) have issued a letter to the BOA with a threat to pursue legal action, essentially in the hope it will grant further relaxations to the guidance in order to prevent the matter going any further.
Recap on Rule 40
The IOC aims to protect and maximise its revenues with official sponsors secured under The Olympique Partner (TOP) programme (comprising the likes of Coca-Cola, Visa and Samsung) and additionally those of National Olympic Committees (NOCs). Working as a non-profit organisation, the IOC redistributes its revenues in several ways; most important, however, is the IOC's funding of the Games and provision of ongoing support to NOCs. Consequently, the IOC seeks to distance itself and the Games from other companies (without an official association) as far as possible by its Olympic Charter. The flow-down effect is that Rule 40 has restricted Olympic athletes, for a number of years, in their ability to promote their personal sponsors during the Games. Please see here for a more detailed summary.
In February this year, athletes sensed a sea change when the German Cartel Office (Germany's national competition regulator) described Rule 40 as "too far reaching" and "abusive conduct" – ruling that the IOC and Germany's NOC needed to grant more promotional freedom to athletes before and during the Olympics. The ruling means that German athlete advertising activities during the Games will no longer need to be cleared by its NOC – with terminology such as "medal", "gold", "silver", "bronze" and "Summer Games" now permitted (for example) in social media posts by athletes and their personal sponsors. German athletes will now be able to post pictures of themselves competing at the Olympics, provided there are no Olympic properties visible.
Recognising the significance of the ruling, in June the IOC took steps to relax Rule 40. The previous wording at bye law 3 was a complete prohibition (with limited exceptions), whereas it now reads more permissively:
"Competitors, team officials and other team personnel who participate in the Olympic Games may allow their person, name, picture or sports performances to be used for advertising purposes during the Olympic Games in accordance with the principles determined by the IOC Executive Board."
Whilst more athlete-friendly, there remains a degree of uncertainty in respect of interpretation. At the time of the announcement, Thomas Bach (the IOC President) commented:
"We want to look at this in a positive way and we want to be as liberal as possible without affecting the sponsorship contracts of the NOCs. We are protecting them and that's why we don't have a one size fits all solution. I don't think such a solution exists."
The IOC put the ball in the court of each individual NOC to apply its own guidelines in respect of its own country's athletes – mindful that each NOC has its own sponsorship portfolio.
Analysing the guidelines published by other National Olympic Committees
Generally, athletes viewed the guidelines provided by the US Olympic & Paralympic Committee (USOPC) in a positive light. Team GB's Dina Asher-Smith going so far as to tweet "Jealous!!!"
Released in early October, the USOPC guidelines allow companies to run generic advertising campaigns during the Games that feature their sponsored athlete. Importantly, these campaigns can be new and not necessarily a continuation of existing campaigns. Companies can also send their sponsored athlete congratulatory and good-luck messages, with athletes themselves permitted to thank personal sponsors for their support. In order to enjoy these benefits, athletes are required to register their relationship with the relevant sponsors, who in turn must pledge that they will adhere to a "Personal Sponsor Commitment". With helpful examples of the types of messages that are permitted, the USOPC guidelines generally provide athletes and their personal sponsors with wriggle room to explore different ways of profiting from their relationships whilst the Games are ongoing.
The Australian Olympic Committee (AOC) released its guidelines shortly after the IOC announced its revision of Rule 40. Athletes and their sponsors can continue to work together on advertising campaigns provided they do not use Olympic properties, with athletes again able to thank their personal sponsors. However, the AOC's guidelines impose added limits and require more forward planning by an athlete's sponsor. For example, campaigns are required to have been in operation at the same pace and awareness prior to the Games Period (14 July – 11 August 2020) if they are to continue during such period, with a prohibition on congratulatory messages by personal sponsors during the Games Period.
The British Olympic Association guidelines
This brings us back to the BOA guidelines. During the Games Period, congratulatory messages by personal sponsors are not permitted. Whilst athletes can thank their personal sponsors (as above), this is subject to certain limitations. For example, athletes are limited to one "thank you" message per sponsor during the Games. Crucially, Team GB athletes cannot promote their sponsors during the Games Period, generic or otherwise, including across their social media platforms.
It is important to reflect that the BOA guidelines, like the AOC guidelines, continue to permit generic advertising campaigns by athletes' personal sponsors to the extent they are implemented in the same nature and with the same frequency for least 90 days prior to the Games Period.
Evidently, this is not enough to appease Team GB athletes, who are now seeking to force the BOA's hand. The athletes have an eye on the German ruling and hold similar expectations to promote sponsors whilst the Games are ongoing (including the same right to use terminology such as "medal", "gold" and "Summer Games" in social media posts).
Next steps
Although the German ruling is not binding on the English courts, Team GB athletes will certainly feel they have good justification for pushing the BOA.
Any response by the BOA will be monitored closely. The BOA continues to assert (including before its guidelines were published) that it operates without public funding and is heavily reliant on revenues from its premium-paying sponsors. This is why the BOA feels justified in sanctioning more limited athlete activity in comparison to other NOCs, on the premise that any further relaxation of its guidance would put those revenues at risk and in turn affect its ability to support the athletes (in respect of kits, travel, accommodation and training). Accordingly, the BOA might consider it has a strong case of its own if it decides not to bend to the will of the athletes and grant further relaxations.
Developments involving the International Olympic Committee
The potential legal wrangle here exists between Team GB's athletes and the BOA, not the IOC. As above, the IOC responded to the German ruling and in turn redirected the matter to the individual NOCs. In any event, the IOC has reason to feel confident in its approach. Irrespective of the press attention that surrounded the German ruling and the subsequent amendment to Rule 40, companies seeking an official association with the Games seem undeterred. This week we have seen Airbnb confirmed as the IOC's latest TOP sponsor in a deal worth US$500m over 9 years. In addition, the organisers of Tokyo 2020 have reportedly accumulated domestic sponsorship revenues of US$3.1bn, which almost triples any previous total achieved for an edition of the Games.
On a side note, it is interesting that we are still awaiting further guidance from the IOC – to clarify the meaning of "the principles determined by the IOC Executive Board" in respect of the above wording at 40.3. This additional guidance is due for release before the end of the year. However, the BOA may be required to act sooner if the athletes follow through with their threat of legal action.
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