At a glance
On Friday 26 July 2024, the Olympic Cauldron was lit; an occasion marking 100 years since France last hosted the Olympic Games (the "Games").
This year will see over 10,500 athletes from 206 nations compete for the coveted bronze, silver and gold medals. Competing in the Games is undoubtably an accomplishment, but winning a place on the podium is widely considered to be the holy grail for athletes. Competing at the Games can cement an athlete's legendary status, galvanise a sense of national pride and inspire the next generation. Upon the conclusion of the Games, the 'Olympic heroes' can see increases in funding and endorsement deals, as businesses seek to cash-in on athletes and their successes.
Whilst athletes compete for a place on the podium, this article will outline our own 'legal podium,' and our pick of the bronze, silver and gold legal stories.
Bronze: The Legal Challenge Against Prime
The US Olympic and Paralympic Committee (the "USOPC") recently sued PRIME Hydrogen ("PRIME"), the energy drink manufacturer owed by YouTube stars, KSI and Logan Paul, in a dispute over alleged trademark infringement.
USOPC alleged that PRIME was using registered trade marked phrases, including "OLYMPIC," "OLYMPIAN," "TEAM USA," and "GOING FOR GOLD", in its promotional materials and packaging for a special edition energy drink, featuring US basketball player and Olympic gold medallist, Kevin Durant.
USOPC's cease and desist letter stated that PRIME's conduct "has been and continues to be wilful, deliberate, and in bad faith, with malicious intent to trade on the goodwill of the USOPC and the International Olympic Committee (IOC)"1. Accordingly, USOPC argued that consumers would be misled into believing that PRIME and the USOPC (and therefore the Games) were associated.
PRIME initially did not react to the legal challenge; however, more recently, the drinks manufacturer has removed the advertisements and products containing the trademarks from its social media platforms and website.
The case offers a reminder for marketing teams that, before
embarking on campaigns centred on major sporting, or international
events, they should conduct the proper due diligence to ensure they
are not illegally using the intellectual property, such as
trademarks, belonging to someone else.
The case also demonstrates a warning to the owners of trademarks to
remain vigilant.
Silver: Rule 40 of the Olympic Charter – Image and Advertising Rights of Participants in the Games
The rules governing the operations and management of the Games are codified in the IOC's Olympic Charter. The IOC also publishes a set of guidelines, which are updated for each Games.
Byelaw 3 to Rule 40 ("Rule 40") provides that the name and image of those participating in the Games "can be used for advertising purposes during the Olympic Games in accordance with the principlesdetermined by the IOC Executive Board." 'Participants'2 includes competitors, team members, coaches and trainers. For Paris, Rule 40 applies between 18 July 2024 and 13 August 20243.
The purpose of Rule 40 is to protect the exclusivity rights of the official sponsors of the Games and to prevent any unauthorised commercial exploitation by non-sponsors of the Games. This is important for the IOC, which is noted as a "non-profit organisation, dedicated to using the revenue generated from the Olympic Games to assist athletes and develop sport worldwide."4
Olympic and non-Olympic partners must overcome various hurdles to use a participant's name and image for advertising purposes. Unsurprisingly, there are more stringent rules for non-Olympic partners, where they are prohibited from using any Olympic properties (including the Olympic symbol, the Paris 2024 emblem, mascots and Paris 2024 graphics, and use of the words "OLYMPIC", "OLYMPICS" and "OLYMPIC GAMES").5
Non-Olympic partners must also "respect the supplementary guidelines for Olympic partners, which will be issued by the IOC and an NOC [National Olympic Committee], prior to the selection of the Participant by their NOC."6 In other words, the IOC permits each NOC to publish supplementary guidance on Rule 40.
Such guidance also applies to, and has been the subject of legal challenge by athletes.
In 2019, German athletes argued that the application of Rule 40 by the German National Olympic Committee limited their ability to earn income from personal sponsors and constituted an abuse of a dominant position and a breach of competition law. The German athletes were successful in their challenge and accordingly, the restrictions of Rule 40 were loosened. This allowed German athletes greater freedom to engage in advertising with non-official sponsors, provided that certain conditions were met.
This case marked a significant shift in the enforcement of Rule 40, not just in Germany, but in influencing broader discussions on athletes' commercial rights worldwide. The case also highlighted the tensions between protecting the commercial interests of official Olympic sponsors and allowing athletes the right to capitalise on their marketability at a time when they are most visible.
The broader debate also reached the shores of Britain. Multi-Olympic gold medallist, Mo Farah, initiated legal proceedings against the British Olympic Association (the "BOA"). Farah, who led the legal challenge alongside other British athletes, argued that the BOA's guidelines on Rule 40 were anti-competitive, as they limited British athletes' potential earnings during the Games. This led to the BOA relaxing its guidelines on Rule 40.
Today, British athletes (and other British participants in the Games) can use their personal social media accounts to post content, including 'thanking' sponsors, as long as they do not explicitly or implicitly link the content to the Games, or the specific period in which they competed. Posts should not feature Olympic branding, marks, or terms including "OLYMPIC", "TEAM GB", or any similar references.7
The relaxation of the Rule 40 guidelines, which enables more generic advertising and the ability to 'thank' personal sponsors (without Olympic branding), represents a compromise aimed at reducing some of the concerns around limitations on earnings. This change acknowledges the participants' rights to monetise their success, whilst still protecting the interests of official sponsors and the Olympic brand.
Whether Rule 40 is entirely 'fair' continues to be debated. For example, questions remain as to whether the Rule 40 restrictions can disproportionately affect lesser-known athletes, who rely on sponsorships for income and funding.
Gold: The Division of the Court of Arbitration for Sport
The Court of Arbitration for Sport ("CAS") operates an ad hoc division for handling any disputes arising during the Games (the "Division").
The purpose of the Division is to resolve non-anti-doping disputes swiftly (within 24 hours of an application being made) and with minimal disruption to the Games. Anti-doping issues are managed by the CAS Anti-Doping Division.
However, can the Division operate effectively and dispense justice in just 24 hours? We shall consider two brief examples:
Nayoka Clunis
In the Games, the Division were required to make a ruling in relation to Jamaican hammer thrower, Nayoka Clunis. Clunis' application concerned an administrative error by the Jamaica Athletic Administrative Association, in which her name was not submitted to World Athletics, meaning she was ineligible to compete in the Games.
Upon receiving the application, the Division released a press release stating that it "could not be entertained as it was filed outside the jurisdiction of the CAS ad hoc Division Paris 2024. As a consequence, the case could not be reviewed on the merits."8 In other words, the dispute arose outside of the permitted 10-day window for disputes relating to the Games, meaning Clunis was not able to compete.
Canadian Women's Football Team
In recent days, the Division has also dismissed Canada's appeal against a six-point deduction, given by FIFA to its Olympic women's football team. This was after Canadian staff, working with the team, were found guilty of using a drone to spy on the New Zealand team during training sessions. This led to the suspension of head coach, Bev Priestman for the remainer of the Games.
The Canadian Olympic Committee and Canada Soccer labelled the punishment as "disproportionate" which "unfairly" punished the players, despite there being no suggestion of player involvement. Accordingly, Canada sought a reduction or cancellation of the points deduction. Canada's appeal has now been dismissed by the Division – meaning the six-point penalty remains. The Division's media release does not provide any reasons for the dismissal, stating instead that the "full award with grounds will be published at a later date"9 due to the urgency of the matter (i.e. Canada, at the time of writing, are still competing in the Games and any points deduction could affect their progression). The publication of the reasons is important, as it provides transparency and supports the credibility and integrity of the Division's arbitration process – they will be keenly consumed when published.
These two cases demonstrate the importance of the Division. Athletes and/or teams have free access to quick, high-quality dispute resolution services. Moreover, athletes and/or teams can be reassured that any disputes can be decided without undue delay and with minimal impact on the competition schedule of the Games. Given the perhaps 'once in a lifetime opportunity' afforded by the Games for some athletes competing in arguably the most prestigious sporting event – this is of paramount importance.
Footnotes
2. International Committee Olympic Charter, in force as from 15 October 2023
3. International Committee Olympic Charter, Guidance on Opportunities for Participants During The Olympic Games Paris 2024
4. https://olympics.com/ioc/funding
5. International Committee Olympic Charter, Guidance on Opportunities for Participants During The Olympic Games Paris 2024
6. International Committee Olympic Charter, Guidance on Opportunities for Participants During The Olympic Games Paris 2024
7. TEAM GB – Rule 40 Guidelines For Agents & Non-Olympic Brands
8. https://www.tas-cas.org/fileadmin/user_upload/CAS_Media_Release_ParisOG_2_decision.pdf
9. https://www.tas-cas.org/fileadmin/user_upload/CAS_Media_Release_ParisOG_decision_OG_9.pdf
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