Olympic advertising restrictions relaxed in Germany

Out-Law News | 01 Mar 2019 | 10:14 am | 2 min. read

There will be greater scope for businesses to market their brands in partnership with athletes competing at the Olympic Games after action by Germany's competition regulator.

The Federal Cartel Office (FCO) said it had reached a deal with the International Olympic Committee (IOC), which organises the summer and winter Olympics, and the German Olympic Sports Confederation (DOSB), which it said will provide more scope for German athletes to benefit commercially from advertising at the time of the games.

"This is another example of the competition law rules being used to challenge, in this case, successfully, restrictions imposed by sporting bodies and organisations on participants which may not be strictly necessary to protect the sport and the success of the event," said competition law expert Angelique Bret of Pinsent Masons, the law firm behind Out-Law.com.

The FCO challenged rules set out in the Olympic Charter which generally prohibit athletes participating in the Olympic Games from allowing their person, name, picture or sports performances to be used for advertising purposes for a period spanning from shortly before the games start to shortly after the games end.

Supporting guidelines developed by the DOSB required German athletes to apply to it at least three months before the Olympics for an exemption from the Olympic Charter rules. Exemptions were only available for ongoing advertising campaigns and they could not contain any Olympic or Olympic-related terms.

The FCO previously raised concerns with the IOC and DOSB that their rules and guidelines may constitute an abuse of a dominant market position, in breach of competition law. The regulator said, though, that it has now secured commitments from the sporting bodies that provide "considerably enhanced advertising opportunities during the Olympic Games in future".

"A new DOSB guideline defines the changes and the conditions under which German athletes and their sponsors can carry out advertising activities in the future," the FCO said. "The IOC has agreed that these new guidelines take priority over the IOC rules with regard to Germany."

Under the new agreement, athletes will no longer be required to get advanced clearance for advertising activities scheduled to take place during the Olympics, and brands will be free to develop new advertising campaigns to time with the games. Social media restrictions have also been loosened to allow sponsors to send messages of greeting and congratulations to athletes and for athletes to respond and share certain content.

There has also been further relaxation of rules concerning photographs of athletes competing and of the terminology that athletes and their sponsors can use in advertising campaigns during the Olympics.

"It is now allowed to use terms like 'medal, gold, silver, bronze, winter or summer games'," the FCO said. "The catalogue of Olympic terminology which must not be used is now considerably smaller and, unlike before, conclusive."

While the restrictions have been eased, there will still be limitations to the advertising activities athletes and their sponsors can engage in at the time of the Olympics. Under the new framework, however, athletes that breach the rules will not be subject to sporting sanctions.

Andreas Mundt, president of the FCO, said: "We ensure that the advertising opportunities of German athletes and their sponsors during the Olympic Games, which the DOSB and IOC significantly restricted in the past, are extended. While athletes are the key figures of Olympic Games, they cannot benefit directly from the IOC’s high advertising revenue generated with official Olympic sponsors. However, as the games mark the height of their sporting careers, self-marketing during the games plays a very important role."

"Our decision grants German athletes more leeway when it comes to marketing themselves during the Olympic Games, for example as far as the use of certain 'Olympic' terms or their pictures taken in sports events, or social media activities are concerned. Sports associations pursuing economic activities are also subject to competition law," he said.