On FIFA, IOC, et al., their abuse of athletes, and their approach to advertising

During the ongoing FIFA World Cup, there have been several occurrences of teams (including my native Sweden—twice) receiving fines for allegedly violating advertising/sponsoring rules. (Reuter’s discusses two cases.) Apparently, even something as trivial as wearing socks with an “unauthorized” brand name can lead to sanctions… The restrictions placed on athletes* often reach a point where they are hindered even in their natural right of expression and free speech.

*Below, I will mostly speak of athlete and/or use the perspective of an individual sport. The case for teams and team sports is very similar, but differs in there potentially being different sponsors on the level of the individual team-member and on the level of the team. This complication goes beyond the scope of this text. (Another difference is that teams have somewhat better chances of breaking free, even though they usually remain the considerably weaker party.)

This is a continuation of a growing problem of abuse of power and an appropriation of rights, based on a massive difference in the relative power and consequences of choices* for athletes vs. organizations like FIFA. (Also see some previous texts, e.g. [1], [2], [3], [4].)

*If a team, let alone an individual athlete, chooses not to compete in a certain championship, its loss is usually far greater than that of the organizer. Not competing in a certain organizational structure/hierarchy can even amount to not having a career. Also see an excursion on “BATNA” below.

Notably, regulations like these can have a very harmful effect both on the earning potential of athletes* and their sponsors’ return on investment—and can even negatively affect the performance of athletes**. Effectively, an athlete is sponsored by a particular company or group of companies, receives money, free equipment, whatnot, and when the time comes to shine, when a global audience*** is watching, when the sponsors have the greatest**** shot at receiving something for their money—then some entirely unrelated company, possibly the greatest rival, swoops in with its brand name printed on the athlete… Here the organizers of an event are being outright parasitic, abusing their position to gain a profit beyond what they have earned, on the cost of someone else. In particular, it ignores the simple fact that the athletes are those who actually create the value and do the work—the organizer merely provide a means to tap into that value and to provide that work; it is a catalyst for something great, not the greatness it self.*****

*Note that this is not restricted to the immediate reduction of a sponsors willingness to pay through its own reduced return—there is also a strong component of uncertainty. For instance, what if the sponsor agrees to pay a certain amount assuming a certain set of actions on behalf of the athlete, and these actions are later banned? Such uncertainties can increase the risks to so severe a degree that sponsors reduce their offers in order to keep the expected cost–benefit ratio in check. (And, from an athletes perspective, what if he cannot consent to the conditions imposed by an organizer without being in breach of contract towards a sponsor?)

**Notably, through being forced to use clothing or equipment that does not match what is used on an everyday basis. Even being forced to e.g. use a pair of new shoes on too short a notice can be problematic, even were the shoes otherwise identical to the old. Alternatively, to be forced to give up equipment (including e.g. sun-glasses) for which no replacement can be found in sufficiently short a time (and which the athlete might quite reasonably have assumed were not covered by restrictions). Also note the below example from Wikipedia of NHL players not participating in the Olympics.

***Notably, an audience with a greater interest in the sport than e.g. the average watcher of a TV commercial—quite important for the many sponsors who actually have a connection to the sport, notably various clothing companies.

****In many cases, especially for athletes of lesser stature and sponsors with smaller budgets.

*****A reasonable analogy can be found in various Internet forums where someone provides a technical platform and then forgets that the actual value created on that platform, often outweighing the value of the mere platform a hundred times over, is provided by the forum members and their writings. On the other hand, a comparison with e.g. a regular employer–employee relationship is not suitable: While the employees often create most of the eventual value, this is only possible through the framework created, the resources provided, and the planning done by the employer. Remove the employer and the former employees are now unemployed until they find a new position with another employer; remove the IOC, FIFA, …, and the athletes would still be athletes, still compete, still gain sponsorships, … (Notwithstanding that more entrepreneurship and less conventional employment might benefit many in today’s world. I have vague plans to write something on this topic.)

This is an absurdity: That FIFA, the IOC, and similar organizations influence what is printed on banners in a stadium is one thing—that they presume to control the athletes in this regard is something completely different. A sane system would allow the athletes to use whatever* clothes and equipment they want, with whatever sponsors they have, and to similarly associate themselves however they like. On the outside, a complete ban of advertising might be considered, but this should then apply to the organizers too… Similarly, a strong case can be made that if a TV broadcaster has bought the right to broadcast a certain event, the decision what additional advertising to show during breaks should be the sole decision of the broadcaster.

*Within the realms of the reasonable, including after considering constraints that originate in the rules of the sport: I am not suggesting that a runner can blitz away on roller-skates, otherwise naked, and adorned only by a giant tattoo of a company logo.

However, even if we were to consider a control by the organizer reasonable in principle, the current state would remain absurd. Consider some of the contents of the Wikipedia page on “ambush marketing”:*/**

*Many of the examples broaden the discussion to include disputable behavior of e.g. the IOC towards other entities than athletes, which serve to describe the general attitude and the scope of the problem, even at the cost of losing focus.

**Unless otherwise stated, emphasis is by me.

[…]organizers of major sporting events have sometimes required host countries or cities to implement special laws that, going beyond standard trademark law, provide regulations and penalties for advertisers who disseminate marketing materials that create unauthorized associations with an event by making references to specific words, concepts, and symbols. Organizers may* also require a city to set up “clean zones” in and around venues, in which advertising and commerce is restricted to those that are authorized by the event’s organizer—specifically, the event’s official sponsors.

*Here and below we see a few examples of abuse of “may”, as mentioned in a text on problems with Wikipedia.

The fact that special laws might even be needed is a strong sign that something is amiss, that too far-going restrictions are intended, even that the hosts are being manipulated or blackmailed into giving undue preference to these organizers. (“Either change the law to our advantage or we go somewhere else!”)

As will be seen below, the “specific words, concepts, and symbols” can go far beyond what is reasonable.

That what happens outside the venues is controlled goes towards insanity, and can lead to absurd effects, e.g. that a near-by store must block out its signs during an event sponsored by a competitor. The Wikipedia page contains a few examples in this direction (not included in this text).

In some cases, a venue may be required to suspend its naming rights* for the duration of the event if the venue is named for a concern that is not an official sponsor, during which it is referred to under a generic name by all event-related materials and telecasts, and all signage referring to the sponsored name may be obscured or removed.

*That is, the us of a “branded” name for the venue.

Apart from the negative effect on the “venue sponsor”, this can also be a considerable source of confusion, possibly to the point of people going to the wrong place… I would also deem this illogical: A venue has a name*—end of story. Referring to it by that name must never be forbidden. If an organizer additionally provides a more generic name for its internal purposes, possibly at a point where the physical venues are not yet finalized, then that is OK; however, an obligation for others to follow this terminology does not and cannot exist.

*Venues are occasionally renamed, and this is legitimate when the change is intended for the indefinite future (possibly even for a two-year sponsorship contract). A formal renaming simply for the purpose of using a different name during an event, in an attempt to trick the “has a name” argument, is not legitimate. On the contrary, I might reduce the legitimacy of any “sponsorship renaming” in favor of a fix name with an addendum of “sponsored by X” in publicity contexts. (Note the highly confusing and more frequent changes of the names of events, where it might be “the Mercedes whatnot” this year, “the Audi whatnot” next year, and the “the BMW whatnot” a year after that.)

Rule 40 of the Olympic Charter forbids all Olympic athletes from participating in marketing activities for companies that are not official sponsors of the Olympics, even if they have official relationships with the advertiser, during a time-frame that begins 9 days before the opening ceremony, and ends 3 days after the Games’ conclusion. This includes advertising material containing “Olympic-related terms,” including the current year, the host city’s name, “Games,” “Olympians,” “Sponsors,” “Medal,” “Gold,” “Silver,” “Bronze,” “Challenge,” “Effort,” “Performance,” and “Victory”.

Note that this affects the athletes outside of their Olympic activities, both timewise and in relation to physical location. The time frame cuts away a very important part of a winning athletes temporary popularity increase, and is excessively long to boot: With the length of the games, themselves, about a month of time is covered—even for an athlete who might only have competed on a single day… The time frame is also unfair towards those who gain success at the beginning of the period (compared to those who do so later), seeing that they must wait that much longer, and have that many others steal the lime light, before they can gain from this success.

Further note that the range of words covered is extreme, often having only a vague and non-exclusive relation to the Olympics, and leaving the athlete in a such a mine-field* that it might be advisable to abstain from any public or advertising appearance in that time frame. Even those words that can be seen as having a sufficient connection are disputable through their restriction of free and natural expression. For instance, a TV add referring, even in passing, to an athlete’s participation in an upcoming Olympic competition would be a rule violation—despite not mentioning it bordering on the unnatural. Worse, an add that has spoken of an athlete as “Olympic champion” for close to four years, might now need to be altered for the duration of this month. Hell, even a “We are proud to be X’s sponsors.” resp. “I am proud to have Y as my sponsors.” would be out.

*For instance, mentioning a city of residence, a medal in a different championship (e.g. the European Championships), or even a “Victory” at “Dancing with the Stars”, could result in a violation.

An additional complication is that these restrictions are applied to sponsors, advertisers, whatnot by proxy: They have a contract with the athlete, the athlete has a contract (possibly of the implied kind, possibly over another proxy) with the organizers, and they still risk taking a hit* if rules like these are enforced. Indeed, the sponsor might not even have a chance to react, e.g. if a recently retired athlete changes his plans and decides to go to the Olympics after all.

*The description of the rule only mentions the athletes. However, there can be other channels involved, including the aforementioned “special laws” and the obvious risk of receiving a cease-and-desist demand (even should it not be legally enforceable). Specific examples (possibly based on another justification than this rule) directed at advertisers are present below and on Wikipedia, sometimes without involvement of an athlete.

Finally, note that the lists are not complete…

During a game at the 2006 FIFA World Cup, fans were asked to remove “Leeuwenhosen”-pants with lion tails colored in the orange of the Netherlands national football team, distributed and branded by Bavaria Brewery, because they infringed on the exclusive beer sponsorship rights owned by Anheuser-Busch.

[In 2010] 36 female fans were ejected from a game (along with the arrest of two, […]) for wearing unbranded orange miniskirts that were provided by Bavaria; Sylvie van der Vaart, wife of Dutch player Rafael van der Vaart, had modeled one of the miniskirts in an advertising campaign for the brewery.

Here FIFA presumes to dictate how the fans (!!!) are supposed to dress. If this line of reasoning was followed to its logical conclusion, paying visitors might be forced to remove or hide any type of branded (and some unbranded…) clothing, bag, sun-glasses, whatnot. Seeing that it is even more unreasonable to expect fans to analyse the details of advertising rules, chances are that some would be caught unawares, be unable to find a replacement* in time, and lose the opportunity to watch the event—after possibly spending hundreds of Euros on tickets, travel, and whatnot.

*Pants and miniskirts are good examples of things that, unlike e.g. a hat, would require some type of replacement, and where finding a replacement might take far too long.

The second part, again, demonstrates a veritable mine-field: Someone can, in good faith, wear a particular piece of clothing, only to be ejected over someone elses actions. Again taking this to its logical conclusion, it might be enough to wear something that merely coincidentally looks like something that had been used in advertising…

At the 2008 Summer Olympics in Beijing, […] ; logos of non-sponsors were covered with tape on equipment at Games facilities—a restriction that applied even to appliances, bathroom fixtures, elevators, and fire extinguishers.

So patently absurd that no comment is needed—except for the purpose of separating quotes!

The IOC’s restrictive ambush marketing rules were one factor in the National Hockey League’s decision to ban its players from the 2018 Olympics;

Horrifying, considering the presumed importance* of such players, how the results of the tournament might have changed, and how the individual players are reduced in their competitive options.

*The world championships (unlike the Olympic Games) tend to overlap with the end of the NHL season. Every time around, one of the main activities of Swedish reporting is a guessing game of what player might become available at what time, often with an implied hope that this-or-that NHL team will lose sufficiently early…

[…]; EasyJet was told by a LOCOG representative that having Sally Gunnell reprise her pose with the Union Jack from the 1992 Games for an advertisement would constitute an unauthorized association, an art event known as The Great Exhibition 2012 received threats from LOCOG for merely containing “2012” in its name, […]

The first example shows the problems with free expression and how the rights of individuals can be infringed—to the point that it, indirectly, amounts to taking ownership of Gunnell’s accomplishment and prior expression. The second, how dangerous word restrictions (cf. above) and attempts to quasi-trademark parts of free speech (also see excursion below) can be: Effectively, no-one else is supposed to use “2012”…

During the 2016 U.S. Olympic track and field trials, the apparel company Oiselle received demands by the United States Olympic Committee to remove social media posts congratulating Kate Grace […] because the photos attached to the posts depicted USOC trademarks, including the Olympic rings and the phrase “Road to Rio”. […], but [Bergesen] argued that their depiction were incidental because the offending material appeared in the venue and on the bibs worn by all athletes at the event, making it intractable to avoid depicting them in photos taken there. She also defended the postings as being news reporting on the achievements of its sponsored athletes, and not an advertisement for its products per se.

If the argumentation of Bergesen is rejected, another mine-field is opened and sponsors, possibly even third-parties in general, will be better of either suppressing expected or natural expressions, or severely altering them. (Here e.g. through digitally editing the photos; however, note that with rules similar to that of the Olympics, as opposed to the trials, a congratulation even mentioning the Olympics would have been a violation—while one not mentioning it would have been pointless.

Excursion on personal items, clothing, etc.:
The effects of restrictions like those discussed above will depend strongly on how broadly they are interpreted and how harshly they are enforced. However, it is obvious that the consequences can be quite absurd, e.g. in that even sun-glasses of athletes might be banned, that even the audience might have to pay attention to what it wears, whatnot. A particular interesting example is (the now retired heptathlete) Caroline Klüft, who was well-known for carrying with her a pet toy, to which she had a strong emotional connection. If the manufacturer of that toy was not an official sponsor, could the pet toy have been banned from the stadium? (And what effect might that have had on her?)

I note that concerns about a broad interpretation and harsh enforcement are not theoretical: There are enough examples given to prove that extremes are at least occasionally occurring. Further, in my understanding of the mentality of some businesses, I see extremes to be something of an expected case. Indeed, if this-or-that organizer could get away with prescribing what beers were allowed in front of the TV when watching the event, I would not be the least surprised to see such restrictions manifest…

Excursion on appropriation of words, colors, symbols, …:
That businesses try to appropriate certain aspects of the common realm* as “theirs” is nothing new, although the Olympic examples given above are quite extreme. A particularly annoying German example is Deutsche Telekom (the German “AT & T”), which long has referred to anything and everything associated with it as “T-[this or that]” (e.g. “T-Online”), effectively appropriating an entire capital letter—and has done its darnedest to do the same with the color magenta.**

*As opposed to creating, possibly through combination, something sufficiently new that a reasonable trademark is created.

**I am uncertain whether it formally has trademarks for e.g. the “T-[this or that]” template, or just specific examples. However, there is little doubt that threats would follow, should someone else try to use it.

To avoid such issues of undue appropriation, some type of law requiring a sufficient uniqueness even for “quasi-trademarks”, or distinguishing marks in general, would be very sensible, e.g. in that Deutsche Telekom would be forced to use “DTAG”* instead of “T” and be forbidden to using magenta as “its” color, instead having to go by a combination of colors in some pattern—or forego color appropriation entirely. Similarly, the Olympics should be reduced to a very small core, including “Olympics” and variations, possibly also the combination of year and city**.

*“AG” being roughly “inc.”.

**However, even something like “Rio 2016” or “London 2012” could very legitimately occur in other contexts, implying that such a restriction would have to be considered with great care, and possibly be restricted to specific contexts or to individual games with little “competition” for the meaning.

Indeed, even variations of “Olympic[s]”, it self, are a bit tricky: Firstly, (at least) the non-capitalized form is generic, has other meanings, and there have actually been other games using “olympics” than those arranged by the IOC even in modern times. Secondly, there comes a point where a process similar to the generification of a trademark can be argued, and where it could conceivably be undue to restrict the general use of some words or names. In that case, the conclusion would be to allow e.g. “Olympics” and “Olympic Games” as unrestricted terms, and requiring the IOC to use e.g. “the IOC Olympics”, etc., when it wants a “proprietary” identifier.

Excursion on BATNA:
Parts of the problems of athletes and e.g. business customers (cf. a previous excursion) can be seen from the perspective of BATNA, and BATNA might often be a better approach of explanation than looking at the strength and weakness of two parties. For instance, a typical billionaire might, in some sense, be more powerful than many sports organizations (but hardly the IOC). However, if he took up a sports career, barely managed to qualify for a championship, and made demands, they would likely be rejected, simply because of BATNA—the championship can probably do without him, with no or only marginal harm. (Discounting an artificial change in BATNA through large donations/bribes, threats of protracted law suits, and similar.) On the other hand, a superstar with an immense fan following (like Federer or Nadal) would have considerably greater* chances of achieving something, even had he just had a few hundred thousand to his name—his absence could have a significant negative impact on ticket sales, the number of TV viewers, general publicity, …

*That “greater” implies “great” is not a given, however.

In order to remedy such problems, a change of BATNA is necessary. What these changes might be, will depend on the details; however, in the case of sports, strong players’/athletes’ unions are an obvious candidate—losing half the athletes in one stroke is much, much more harmful than losing a single athlete here and a single there. If push comes to shove, a large enough proportion of the athletes could simply start an alternate organization/tour/championship/whatnot. (In the case of e.g. consumer protection, improvements would likely have to consist mostly of changes to legislation.)

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