The Bundeskartellamt, the German competition authority, recently brought administrative proceedings against the International Olympic Council (IOC) and the German National Olympic Committee (DOSB) for undermining competition and abusing their dominant position by restricting athletes from participating in advertising during the Olympic Games. In particular, the Bundeskartellamt noted that athletes do not benefit directly from the ‘very high’ advertising revenues generated by the official Olympic Games sponsors.
Rule 40 of the Olympic Charter prohibits an athlete’s person, name, picture or sports performance from being used for advertising purposes during the Olympic Games. The rationale for this rule is said to protect the brand of the official sponsors, which use advertising to associate their brand with the Olympic Games. It is also designed to prevent ‘ambush-marketing’ by brands which are not official sponsors but which seek to capitalise on the public interest in the Olympic Games.
The advertising restriction applied for the duration of the Winter Olympics in Pyeongchang and remained in place until 28 February 2018. An athlete competing in the Winter Olympics could have applied to their National Olympic Committee (NOC), such as DOSB in Germany or the Olympic Council of Ireland (OCI) in Ireland, beforehand for permission to run advertising during the Winter Olympics.
DOSB guidelines on Rule 40 provided that only promotional activities that began at least three months before the start of the Winter Olympics and did not contain well-defined Olympic related terms could be approved. Following submissions by the IOC and DOSB, the Bundeskartellamt approved new provisional rules (Provisional Rules) for use at the Winter Olympics in Pyeongchang which allowed for generic advertising, including greeting and congratulatory messages from sponsors to athletes during the Winter Olympics and also allowed athletes to share or re-tweet official IOC content and link it with greetings or acknowledgements from sponsors.
Section 5 of the Irish Competition Act 2002 (as amended) prohibits the abuse by one or more undertakings of a dominant position. In light of the position reached by DOSB in Germany it remains to be seen if the Irish Competition and Consumer Protection Commission will consider Rule 40 of the Olympic Charter with regard to Irish athletes in advance of the Tokyo 2020 Olympic Games.
Contributed by: Patrick Murphy
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