In response to ambush marketing that seeks to ride on the wave of popularity generated by large sporting events such as the Olympics, various countries either rely on existing regulations or enact specific laws to regulate ambush marketing. [1] This is to protect the sponsorship rights of official sponsors of those sporting events and ensure that sponsors’ interests are not undermined, which would risk deterring potential sponsors of future events. To combat ambush marketing effectively, the International Olympic Committee (IOC) itself has also introduced Rule 40 in the Olympic Charter, which is aimed at restricting Olympic participants’ commercial partnerships to prevent such practices. In this article we will explore how Rule 40 is designed to respond to the issue of ambush marketing and how it has evolved and sought to balance the interests of athletes’ personal sponsors and the official sponsors of the Olympics.
I. The Evolution of Rule 40: IOC Interests vs. Athlete Interests
To combat ambush marketing and protect the interests of the IOC’s sponsors–a critical economic source for hosting the Olympics–the IOC added a rule to the Olympic Charter in 1991. This rule states that, “No competitor 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.” [2] All athletes must comply with the Olympic Charter or they will risk disqualification from the Games. [3] As a result, athletes are inclined to voluntarily decline advertising opportunities from non-Olympic sponsors during the Olympic period. This prevents non-Olympic sponsors from using athletes in advertisements to capitalize on the popularity of the Olympics, effectively curbing ambush marketing.
However, one problem is that an athlete’s personal sponsors, who have supported them throughout their training and competitions, are often not official sponsors of the Olympics. As a result of Rule 40, athletes cannot promote their personal sponsors at the peak of their careers, when they step atop the podium with their medal in hand. If athletes’ personal sponsors can’t benefit from their athletes’ Olympic success, who would be willing to continue to financially support athletes’ careers? Without support from sponsors, athletes might struggle to cover training costs and maintain their livelihoods, which would hinder the overall development of sport. This rule has faced significant protests and criticism. Even though the IOC issued guidelines before the 2016 Rio Olympics [4], granting exemptions for certain advertising activities by athletes and providing guidance on the scope of prohibitions and restrictions, the conflict between the interests of the IOC and the interests of athletes still seems difficult to balance.
Amid the ongoing conflicting interests, the German Federal Cartel Office (Bundeskartellamt) took a decisive action by launching an antitrust investigation in 2017. The investigation targeted the advertising restrictions imposed by the German Olympic Sports Confederation (Deutscher Olympischer Sportbund, “DOSB”) and the IOC through Rule 40. The inquiry focused on potential unfair competition. In 2019, the Federal Cartel Office concluded that both the DOSB and IOC had abused their dominant positions to engage in unfair competition. As a result, the DOSB and IOC agreed to relax certain Olympic Charter regulations within Germany. These adjustments included no longer requiring prior approval from the Olympic Committee for advertising content, allowing advertising to take place during the Olympic Games, and narrowing the scope of Olympic intellectual properties that could not be used in advertisements. Specifically, terms that were previously classified as Olympic properties and therefore prohibited (such as “medal,” “gold,” “silver,” “bronze,” “Summer Games” and “Winter Games”) were made available for use in advertising. [5]
Apart from the changes within Germany, in 2019, a global and transformative amendment was made to Bye-law 3 to Rule 40 of the Olympic Charter. The previous principle of prohibition was revised to a principle of conditional permission. The new regulation states: “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.” [6] Furthermore, national Olympic committees were also authorized to make necessary adjustments to these key principles according to national needs. This amendment marked a significant breakthrough in balancing the interests between the IOC and athletes.
II. Key Principles for Implementing Rule 40: How Should Non-Olympic Partners Advertise?
To implement the provisions of Rule 40, further key principles were issued for both the 2021 Tokyo Olympics and the 2024 Paris Olympics. Regarding the 2024 Paris Olympics, non-Olympic sponsors were allowed to use or mention an athlete’s name, image, or athletic performance in advertising, provided it complies with the “Key Principles of Rule 40 for Participants at the Olympic Games Paris 2024 (Commercial Opportunities for Participants During the Olympic Games Paris 2024” (Key Principles) set by the IOC. [7]
1. The 2024 Key Principles
According to the 2024 Key Principles formulated by the IOC, permitted non-partner-related advertising can be roughly divided into the following three types:
1.1 Generic advertising
In principle, so-called generic advertising must have been in the market for at least 90 days before the Olympic period, and which runs consistently and does not materially escalate during the Olympic period. To benefit from the permission granted under the Key Principles, Non-Olympic Partners must notify the IOC or the National Olympic Committee (NOC) of the targeted country (as applicable) of their generic advertising plans through a designated platform (https://rule40.olympic.org/).
In addition, generic advertising, apart from being that which “uses a Participant’s Image,” must not have any association with the Paris Olympics, the IOC, any NOC or a NOC’s national Olympic team. According to the “Rule 40 Illustrative Guidance for Non-Olympic Partners for Paris 2024 (Illustrative Guidance for Non-Olympic Partners Commercial Opportunities for Participants)” (Illustrative Guidelines) published by the IOC on the Athlete365 portal, [8] expressions such as “Road to Paris,” “Paris 2024 Olympics,” the use of official Olympic team uniforms, and images symbolizing Paris are considered to be associations with the Olympics and are therefore prohibited.
1.2 Congratulatory Advertising
Congratulatory advertising refers to messages from individual sponsors directed toward sponsored athletes or teams, expressing encouragement, praise, sympathy, or other forms of support related to their participation in the Olympics. Since congratulatory advertising has an intrinsic connection to the Olympics, it is not considered generic advertising. Non-partners are only permitted to release such advertisements before or after the Olympic Games.
1.3 Online Messages by Participants
During the Olympic Games, participants are allowed to post simple messages of thanks to non-partners on their personal websites or social media platforms without needing to notify the IOC or their NOC. However, each participant is limited to one thank-you message per personal non-partner (a single identical message posted across different social media platforms counts as one). In terms of content, thank-you messages must not include personal endorsements of non-partner products or services, nor any statements or implications that such products or services can enhance the participant’s performance.
When participants repost or share content from the IOC, the 2024 Paris Olympic Organizing Committee, their NOC, or their national team’s social media accounts, they must ensure that the content does not include messages thanking or mentioning non-partners in any way.
Additionally, participants must be particularly careful about advertisements related to non-partners during the Olympic period. Such adverts must comply with the IOC and NOC policies on activities that are inconsistent with Olympic values, such as prohibiting sponsorship activities related to tobacco, banned substances, alcohol, gambling, pornography, or unethical businesses. Furthermore, these advertisements must not feature images of athletes wearing their national team uniforms or displaying Olympic medals. All adverts related to non-partners are also prohibited from using Olympic properties, including the Olympic emblem, Paris 2024 emblem, mascots, pictograms, national Olympic team logos, or the Olympic motto.
2. Adjustments to the Key Principles by NOCs
NOCs are authorized to make necessary adjustments to the Key Principles established by the IOC based on local conditions. For example, in the Rule 40 guidelines published by the United States Olympic & Paralympic Committee (USOPC), [9] individual sponsors must obtain Rule 40 approval from the USOPC. Additionally, the number of thank-you messages that participants can post has been adjusted from one per personal non-partner as per the Key Principles, to a total of seven. Furthermore, the restriction that non-partners are not allowed to publish congratulatory advertising during the Olympics has been relaxed. Under the condition that the advertising does not mention the products or services of the personal sponsor, non-partners are allowed to post one congratulatory advertisement per sponsored athlete on social media during the Olympics (with identical content posted on different platforms considered as one advertisement).
Similarly, in the Rule 40 guidelines published by the British Olympic Association (BOA), [10] the number of thank-you messages participants can post has been adjusted to one per personal non-partner for each event, with a limit of one message per non-partner on the same day and a maximum of three messages for the same non-partner throughout the entire Olympics. Additionally, the total number of thank-you messages a participant can post during the Olympics is capped at ten.
Since these adjustments are made by NOCs to suit national circumstances, their application is limited to advertisements targeting the national market. Advertising activities conducted outside the national market must comply with the Key Principles established by the IOC or the guidelines issued by other countries.
III. Conclusion
The Olympic Charter, through Rule 40, links athlete eligibility with advertising restrictions to combat ambush marketing. Being eligible to compete in the Olympics is tantamount to athletes’ careers, so the provisions of Rule 40 cannot be ignored. Individual sponsors, when negotiating advertising cooperation with athletes or publishing advertisements, should be mindful of the relevant regulations to avoid disputes with athletes, NOCs, or the IOC. In a previous similar case involving athlete equipment, the IOC issued a warning requiring an athlete to cover personal sponsor logos, with the athlete being threatened with losing their eligibility if they refuse to comply. [11]
For Taiwanese companies, although the Chinese Taipei Olympic Committee has not made adjustments to the Key Principles and directly applies the Key Principles issued by the IOC, companies engaging in cross-border advertising should confirm before producing or broadcasting advertisements whether the NOC of the target country has made any adjustments to the key principles. Moreover, each Olympic Games may issue specific principles and guidelines for the application of Rule 40 (including the key principles and illustrative guidelines issued by the IOC, as well as guidelines issued by NOCs). Therefore, it is necessary to review the relevant rules for each Olympic Games to avoid unintentional violations.
This is a translation of the original article in Chinese, which can be found here. Translation by George Bobyk.
Because the content of this article involves information from multiple jurisdictions, despite all efforts to ensure accuracy, please refer to the original sources independently and interpret them when citing relevant information.
For more information on advertising or marketing compliance matters in Taiwan, please contact Ling-ying Hsu at lhsu@winklerpartners.com.
Written on 27 September 2024 by Ling-ying Hsu and Helen Chen.
Translated on 21 November 2024 by George Bobyk.
[1] See our first article “Navigating Legal Boundaries During Olympic Fever: A Brief Discussion on Ambush Marketing” from this series (https://winklerpartners.com/navigating-legal-boundaries-during-olympic-fever-a-brief-discussion-on-ambush-marketing/).
[2] Olympic Charter: 1991, Bye-law 4 to Rule 45 (https://library.olympics.com/Default/doc/SYRACUSE/172359/olympic-charter-1991-international-olympic-committee?_lg=en-GB).
[3] Olympic Charter: 1991, Rule 45: “To be eligible for participation in the Olympic Games a competitor must comply with the Olympic Charter…” (full text available at: https://library.olympics.com/Default/doc/SYRACUSE/172359/olympic-charter-1991-international-olympic-committee?_lg=en-GB).
[4] Jones, Jeri L. (2019), “International Olympic Committee Rule 40: Reasonable Protection for the IOC or Unfair Restriction to the Athletes?,” Atlantic Marketing Journal: Vol. 8 : No. 1 , Article 7 (https://digitalcommons.kennesaw.edu/amj/vol8/iss1/7).
[5] Inside the Games (2019), “German decision scales back powers of IOC’s Rule 40” (https://www.insidethegames.biz/articles/1076055/german-decision-scales-back-powers-of-iocs-rule-40).
[6] Olympic Charter: 2019, Bye-law 3 to Rule 40 (https://library.olympics.com/Default/doc/SYRACUSE/208117/olympic-charter-in-force-as-from-26-june-2019-international-olympic-committee?_lg=en-GB).
[7] See the Key Principles of Rule 40 for Participants at the Olympic Games Paris 2024 at: https://img.olympics.com/images/image/private/fl_attachment/primary/uqumvijhspbeljkeavxx.pdf.
[8] See the Rule 40 Illustrative Guidance for Non-Olympic Partners for Paris 2024 at: https://img.olympics.com/images/image/private/fl_attachment/primary/w855nurcobprm65q34jy.pdf.
[9] See USOPC Rule 40 Guidelines for Brands (Non-Olympic and Paralympic and Agents) at: https://rule40registration.teamusa.org/Assets/doc/2024/Feb/USOPC%20Rule%2040%20Guidance_Paris%202024_12.19.23_UA.pdf.
[10] See BOA Rule 40 Guidelines for Brands (Non-Olympic) and Agents at: https://assets.ctfassets.net/v8zaoys2pgzt/4QvRwOEX6gMi4vMqGyKqPw/aed746026fb1a30b81c72fd459e5fa61/Rule_40_Paris_2024.pdf.
[11] NEY YORK POST (2022), “Ridiculous ‘Prada’ controversy ruined US snowboarder Julia Marino’s 2022 Olympics” (https://nypost.com/2022/02/16/prada-controversy-ruined-us-snowboarder-julia-marinos-2022-olympics/).