Through the Looking Glass: The Pandemic Olympics

Matt Bosworth, Partner in the Russell-Cooke Solicitors, regulation and compliance team.
Matt Bosworth
5 min Read

“I know who I was when I got up this morning, but I think I must have been changed several times since then” Lewis Carroll, Alice's Adventures in Wonderland

The Tokyo games are upon us. From the delayed opening ceremony that will take place behind closed doors to daily news bulletins highlighting cases of infections being reported amongst those organising and the athletes themselves in the Olympic village, the situation is far from ideal.

The optics to these games have perceptibly changed with the feeling that Tokyo 2020 is not so much being hosted as being endured by the people of Tokyo. Calls for the Games to be cancelled have grown louder over time leading to the latest news that one of the main domestic investors and advertisers to the games and Japanese athletes, Toyota, announced they will not now run their adverts during the Olympics. This really is new ground for the entire Olympic movement and the world is waiting to see if more advertisers follow suit.

The turn of events in Tokyo is without precedence in the modern games. It has been more common for organisers to concern themselves with ambush marketing strategies and athletes being silenced from mentioning non-official Olympic partners with the threat of expulsion if they do not adhere to the controversial Rule 40 of the Olympic Charter.

What is Rule 40 and why is it there?

To participate in the Olympic Games, a competitor, team official or other team personnel must respect and comply with the Olympic Charter, including the conditions of participation established by the International Olympic Committee (IOC), as well as with the rules of the relevant International Federation (for Team GB the British Olympic Association (BOA)). Rule 40 of the Olympic Charter is concerned with maintaining control over advertising of, around and during the Olympic Games. The period to which Rule 40 applies for the Tokyo games runs form 13 July to the 10 August 2021.

It is clear that some national Olympic teams (for example Team GB) receive substantial funding to go to the Olympic Games, whereas others receive none. They rely completely on funding from private sources, such as sponsorship. But many national Olympic teams, and the majority of Olympic athletes, do not have their own sponsorship income. To address this difference, the IOC has in place a series of commercial programmes that are structured to help all 206 Olympic teams from every nation of the world, plus the IOC Refugee Olympic Team, to compete at the Olympic Games. Simply put, these official partners are able to saturate the market place by the IOC in return for very large sums of money. The funds that are raised are controlled by the IOC giving the organisation the economic wherewithal to fund its operations over the next Olympic cycle.

In an open letter sent out in 2019, Kirsty Coventry, the IOC Athletes' Commission Chair, wrote that opening up advertising revenues to athletes for the relatively short period of the Games could cause long-term damage to the Olympic funding structure, by:

  • harming the revenue sources that support athletes from all over the world to compete at the Olympic Games
  • undermining the diversity of the sports disciplines featured at the Olympic Games
  • negatively impacting athlete experience during the Games
  • ultimately risking the delivery of the Olympic Games in the future.

The counter argument from the athletes, especially those for whom the Olympics is their main showcase in terms of their careers, is that they are effectively gagged by a billion dollar machine from thanking and giving coverage to those who have funded their careers  and enabled them to concentrate fully on the event. The effective 'window' for maximising the exposure for these sponsors is naturally very small. Concerns have also been raised that athletes who have the blessing of their national domestic associations are able to raise their profiles during the window whereas others are not. They say it is a case of one rule for the 'in crowd' and another for the more independent competitors.

What are the British Olympic Association (BOA) rules for Tokyo?

Following the loosening of the restrictions for American athletes in the Rio 2016 games and a 2019 ruling by the German courts that the German Olympic Association interpretation of Rule 40 breached European Competition Law, the BOA and Team GB athletes agreed a re-definition of the rules. The rules now state that all athletes are permitted to promote their sponsors, and all sponsors are permitted to use athlete imagery, during the period of operation, in accordance with the principles set out in the BOA guidance providing that:

  1. They have obtained prior consent of the athlete
  2. The advertising is generic and does not contain any references to or intellectual property (e.g. logos, images) of the Games, the Olympic movement or Team GB
  3. The brand has notified the BOA – and the advertising has been in-market - by 29 June 2021 (or by 13 July 2021 if the athlete depicted is selected after 29 June), and is run consistently in both nature and frequency during the Games period.

The BOA also now recognises that the participants will want to send out “thank you” messaging via various social media and have stated that:

“The BOA recognises that athletes will want to post messages of thanks to their sponsors, who have supported them on their journey. Athletes will be permitted to post thank you messages on their personal social media channels and personal website, subject to the following maximums:

  • one message for each personal sponsor per event (NB – an ‘event’ means an entire event, so e.g. a 100m ‘event’ would include all of the heats)
  • one message per sponsor on any one day;
  • three messages per sponsor throughout the Games period;
  • a maximum of ten ‘thank you’ messages per athlete throughout the Games Period”

The whole picture

We now have a situation developing where the official Olympic partners believe that there is more benefit to their business profile in not being associated with the Tokyo Games whereas the athletes that have been historically gagged have more opportunity than ever to express themselves and to thank their backers.

The global pandemic has changed perceptions of many truths that were considered to be incontrovertible just 18 months ago. Who is to say the modern Olympic movement is not the latest to go through great discomfort in its image and self-awareness over the coming weeks?

The world will be watching.

Briefings Regulators Russell-Cooke Matt Bosworth Olympic Games Olympics sports law regulations regulatory Rule 40 Olympic Charter Tokyo 2020 2021 sponsorship funding