THE BIG PICTURE: German Cartel Office relaxes IOC’s Rule 40 restrictions through 2026

A long administrative process that began in 2017 resulted in a decision issued Wednesday (27th) that “extended” the personal advertising activities of German athletes from that currently allowed by the National Olympic Committee of Germany, and by extension, by the International Olympic Committee.

The statement by the Bundeskartellamt was highlighted by its President, Andreas Mundt:

“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.”

The actual decision was not released, but the statement noted several specifics:

● “[T]he authority’s preliminary assessment is that the restrictions of advertising opportunities arising from the current application of Rule 40 of the Olympic Charter are too far-reaching and thus constitute abusive conduct.”

● “The current DOSB guidelines on Rule 40 provided that exceptions had to be applied for three months before the event, the advertising campaign had to be ongoing already and could not contain any Olympic or Olympic-related terms.”

● New DOSB guidelines, which the IOC has agreed to regarding Germany only, expand the marketing opportunities to include:

(1) Advertising activities during the Games do not need to be cleared ahead of time.

(2) “[N]ew advertising activities will be admissible in future. The same applies to messages of greeting and congratulations.”

(3) Formerly banned terms will be able to be used, including “medal, gold, silver, bronze, winter or summer games.” The statement noted that “The catalogue of Olympic terminology which must not be used is now considerably smaller and, unlike before, conclusive.”

(4) Photography: “It is now permitted to use certain competition pictures and non-competition pictures taken during the Olympic Games. For example, pictures of competitions not showing any Olympic symbols may be used.”

(5) “Athletes are allowed to use social media more freely during the Olympic Games. Some content may be shared and combined with messages of greeting or thanks to the sponsor.”

The statement also changed the jurisdiction of disputes on these matters in Germany, allowing them to be filed in German civil courts, and eliminating the need to apply to the Court of Arbitration for Sport.

The worldwide impact of such measures is completely unclear, although more detail in the full decision from the Bundeskartelamt will be helpful.

The IOC released a statement noting that “With its decision, the (Bundescartellamt) recognized that there are legitimate reasons for restricting individual athletes’ advertising opportunities in order to ensure the ongoing organization of the Olympic Games. At the same time, any implementation of Rule 40 at the national level necessarily has to take all applicable laws and regulations as well as pertinent case law into account, in this instance, particular German case law.”

From the U.S. perspective, the issues are much more complex than the IOC restrictions or those adopted by the United States Olympic Committee. From a national perspective, the advertising restrictions on events like the NFL Super Bowl, MLB World Series or the Academy Awards could also be impacted, although these have nothing to do with the Olympic Games.

However, the USOC could relax its own guidelines in line with the German decision once the full text is published. The Bundeskartellamt statement noted that the full text will be published in a few weeks “following the elimination of business secrets from the document.”

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