Editor's note: Kevin Gerenni is Assistant Professor in Public International Law (Facultad de Derecho de la Universidad de Buenos Aires) and LLM Candidate 2021 in Public International Law at the London School of Economics.

Even though the decision rendered by the SFT in the Semenya Case was foreseeable, the Tribunal did put forward some concerning reasoning in terms of public policy (“ordre public”) and human rights. In case Semenya decides to challenge the Swiss state before the ECtHR, one can expect the case to shake some grounds at the ECtHR, which would be faced with the question of the application to sport not of fair trial guarantees (as in Mutu & Pechstein) but of substantial human rights provisions such as the prohibition of discrimination on the basis of sex (Article 14 ECHR) and the right to private life (Article 8 ECHR).

Under Swiss law, the reasons that may lead to the annulment of an arbitral award are enumerated in art. 190 of the Swiss Private International Law Act (PILA). Semenya’s strongest case relied on art. 190(2)(e): the award’s incompatibility with public policy. Naturally, this point concentrated most of the SFT’s attention. In order to analyze the compatibility of the CAS award with Swiss public policy, the SFT focused on three main potential breaches of human rights: prohibition of discrimination, personality rights, and human dignity. In doing so, it put forward certain observations that differ with European human rights standards and the ECtHR’s jurisprudence. The purpose of this short article is to analyze those discrepancies and, consequently, Semenya’s prospects of success before the Strasbourg Tribunal.

I.               The scope of Swiss public policy versus ECHR guarantees

To begin with, the SFT distinguished between Swiss public policy and the scope of the ECHR provisions:

“An award is incompatible with public policy if it disregards essential and widely accepted values which, according to the views prevailing in Switzerland, should constitute the foundation of any legal system” (para. 9.1).[1]

“This is the place to specify that the violation of the provisions of the ECHR or of the Constitution does not count among the grievances restrictively enumerated by art. 190(2) PILA. It is therefore not possible to directly invoke such a violation. (…) Thus, the plea alleging a violation of public policy is not admissible insofar it simply tends to establish that the award in question is contrary to the various guarantees drawn from the ECHR and the Constitution.” (para. 9.2).

Contrary to this interpretation, the ECtHR has referred to the fundamental role of the ECHR in specifying the reach of a European public policy. In Loizidou v. Turkey (Preliminary Objections), it stated:

“(…) the Court must bear in mind the special character of the Convention as an instrument of European public order (ordre public) for the protection of individual human beings and its mission (…) "to ensure the observance of the engagements undertaken by the High Contracting Parties" ” (para. 93).      

In that same judgment, it remarked the value of the ECHR as “a constitutional instrument of European public order (ordre public)” (para. 75). Similar understandings can be found in Bosphorus v. Ireland and Avotiņš v. Latvia, among others. As a consequence of this preeminent position that the ECHR holds, certain interests of the State must be outweighed by the Convention’s role in the field of human rights (Bosphorus at para. 156).

II.             The concept of “horizontal effect” in human rights violations

The SFT continued with the analysis of the prohibition of discrimination, for which it partially rest upon an argument that evidently collides with European human rights criteria. Although the Tribunal also concluded that the “relationship between an athlete and a global sports federation shows some similarities to those between an individual and a State” (para. 9.4), it did argue that under Swiss law the prohibition of discrimination does not have a direct horizontal effect. The SFT considered that:

“Although the SFT has consistently held that the prohibition of discrimination is a matter of public policy (…) it has done so, primarily, in order to protect the individual vis-à-vis the State. In this respect, it may be noted that, from the point of view of Swiss constitutional law, the case law considers that the guarantee of the prohibition of discrimination is addressed to the State and does not, in principle, produce a direct horizontal effect on relations between private persons. (…) It is therefore far from obvious that the prohibition of discrimination by private individuals is one of the essential and widely recognized values which, according to the prevailing conceptions in Switzerland, should form the basis of any legal system.” (para. 9.4).

The ECtHR has a long tradition of deeming States responsible for not preventing or sanctioning human rights violations between private persons, which means that the ECHR also applies horizontally. Since its 1981 ruling Young, James and Webster v. the UK, the Court has repeatedly held that the responsibility of a State is engaged if a violation of one of the Convention’s rights is the result of non-observance by that State of its obligation under Article 1 to secure those rights and freedoms to everyone within its jurisdiction.[2]

In Pla and Puncernau v. Andorra, the Court held the State responsible for the rulings of its domestic courts, which did not redress an individual from the discrimination inflicted by another private person. The Court, referring to its duties, clearly affirmed that:

“In exercising the European supervision incumbent on it, it cannot remain passive where a national court’s interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice appears unreasonable, arbitrary or, as in the present case, blatantly inconsistent with the prohibition of discrimination established by Article 14 and more broadly with the principles underlying the Convention.” (para. 59).

Finally, in this same vein in Identoba and Others v. Georgia, the ECtHR sanctioned the State by explaining that the difference in treatment leading to discrimination can source from a purely private action, which in this particular case included attacks to a transgender person.

III.           The necessity and proportionality of the DSD regulations

Throughout its ruling, the SFT followed the reasoning advanced by the CAS to determine that the IAAF (today “World Athletics”) DSD regulations were not in violation of fundamental human rights. With a view to analyzing a recourse to the ECtHR, I will focus on the discrimination and human dignity sections of the ruling (for a remarkably-detailed insight of the SFT’s core findings please refer to  Marjolaine Viret’s recent blog).

In assessing the necessity of the DSD regulations –pursuant to the alleged legitimate aim of fair competition– the SFT considered that “female athletes are disadvantaged and deprived of chances of success when they have to compete against 46 XY DSD athletes. The statistics speak for themselves.” (para. 9.8.3.4). A fact that does not seem to be getting attention is the “800 Metres Women” all-time records table, which lists three women with a better time than Caster Semenya. None of these three women were reported to be DSD athletes. Also, the scientific articles that supposedly demonstrate unequivocal advantage for DSD athletes have been denounced as flawed (for example, by Pielke Jr., Tucker & Boye). Nevertheless, the SFT invoked the ECtHR’s FNASS and Others v. France to shockingly conclude that “the search for a fair sport represents an important goal which is capable of justifying serious encroachments upon sportspeople’s rights”[3] (para. 9.8.3.3).

In addition, the SFT assessed the proportionality of the regulations vis-à-vis the potential gender identity implications. The SFT primarily relied on the allegedly-mild side effects caused by the hormonal treatment: “no different in nature from the side effects experienced by thousands, if not millions, of other women of type XX” (para. 9.8.3.5).

Referring to gender identity (stemming from human dignity), the SFT argued that:

“It must be made clear that the sentence does not in any way seek to question the female sex of the 46 XY DSD athletes or to determine whether they are sufficiently “female”. It is not a question of knowing what a woman or an intersex person is. The only issue to be resolved is whether it is contrary to human dignity to create certain rules of eligibility, for the purposes of sporting equity and equal opportunity, applicable only to certain women who enjoy an insurmountable advantage arising from certain innate biological characteristics. (…) In some contexts, as specific competitive sport, it is permissible that biological characteristics may, exceptionally and for the purposes of fairness and equality of opportunity, overshadow a person’s legal sex or gender identity.” (para. 11.1).

The SFT struggles to highlight that Semenya’s “female sex” is not under question. However, the DSD regulations, implemented in competitions that are divided into the male/female binary, denote that Semenya’s innate sex is not female enough as to compete in female events. On the other hand, she is allowed to compete in male events.

The ECtHR has a growing jurisprudence relating to discrimination on the basis of sex which, especially linked to gender identity, leads to violations of the ECHR Articles 14 and 8. In the 2002 leading case Goodwin v. the UK which dealt with Article 8 ECHR violations, the Court remarked that:

“It is not apparent to the Court that the chromosomal element, amongst all the others, must inevitably take on decisive significance for the purposes of legal attribution of gender identity for transsexuals.” (para. 82).

It is true that Goodwin involved the rights of a trans person, not intersex.[4] However, as the European Commission points out in its Trans and intersex equality rights in Europe – A comparative analysis, the judgment was the inception of States obligation to legally recognize preferred gender in Europe. Similar conclusions in favor of gender identity would later appear, among others, in Y. Y. v Turkey, Van Kück v. Germany and Identoba and Others v. Georgia (this last one dealing with Article 14 ECHR). In Garçon and Nicot v. France the Court underpinned that “the right to respect for private life under Article 8 applies fully to gender identity, as a component of personal identity. This holds true for all individuals.” (para. 95). Later in that judgment, it rendered a particularly relevant observation for Semenya’s case:

“Medical treatment cannot be considered to be the subject of genuine consent when the fact of not submitting to it deprives the person concerned of the full exercise of his or her right to gender identity and personal development, which, as previously stated, is a fundamental aspect of the right to respect for private life.” (para. 130).

It must be noted that this paragraph pertains particularly to the world of sport. “Personal development” is a fundamental part of the Principles of the Olympic Movement, as this article by Durántez Corral et al. indicates.

Conclusions

The reasoning behind the above paragraphs supports Semenya’s case before the ECtHR and would give her a serious chance to prevail in Strasbourg. Even though it is true that the Court has mostly endorsed the lex sportiva system with its judgments FNASS, Platini and Mutu & Pechstein, the latter did aim at certain fair trial deficiencies and triggered concrete changes. Could Semenya’s case be stronger? Yes, for instance if Switzerland had ratified Protocol No. 12 ECHR or if the former IAAF were based in Switzerland instead of Monaco (an issue which the SFT took care to highlight).

On the other hand, the judges could additionally resort to extremely relevant reports in the field of intersex rights, namely the Council of Europe’s document on eliminating discrimination against intersex people, or refer to the categorical document against DSD regulations written by three UN experts. Needless to say, these instruments support the athlete’s claims even further.

The scenario is set for Semenya to create considerable turmoil if she decides to take the case to Strasbourg, where the ECtHR will have to engage –once again and deeper this time– with lex sportiva and Switzerland’s role in ensuring that sports governing bodies comply with human rights. Or, will it look the other way?

*All translations of the SFT’s decision done by the author from French, except where otherwise noted.

[1] Translation done by Marjolaine Viret for her blog article “Chronicle of a Defeat Foretold: Dissecting the Swiss Federal Tribunal’s Semenya Decision”, available here.

[2] See Spielmann, D.; “Chapter 14: The European Convention on Human Rights, The European Court of Human Rights” in Human Rights and the Private Sphere: A Comparative Study (p. 430); Eds. Oliver, D. &  Fedtke, J.; Routledge; 2007. 

[3] Translation done by Marjolaine Viret for her blog article “Chronicle of a Defeat Foretold: Dissecting the Swiss Federal Tribunal’s Semenya Decision”, available here.

[4] As shown in the excerpt, the judgment did address the relevance (or the lack of it) of the “chromosomal element” in defining a person’s gender.

Editor’s note: Thomas Terraz is a fourth year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

1        Introduction

The International Olympic Committee (IOC), after many years of ineffective pushback (see here, here and here) over bye law 3 of rule 40[1] of the Olympic Charter (OC), which restricts the ability of athletes and their entourage to advertise themselves during the ‘blackout’ period’[2] (also known as the ‘frozen period’) of the Olympic Games, may have been gifted a silver bullet to address a major criticism of its rules. This (potentially) magic formula was handed down in a relatively recent decision of the Bundeskartellamt, the German competition law authority, which elucidated how restrictions to athletes’ advertisements during the frozen period may be scrutinized under EU competition law. The following blog begins by explaining the historical and economic context of rule 40 followed by the facts that led to the decision of the Bundeskartellamt. With this background, the decision of the Bundeskartellamt is analyzed to show to what extent it may serve as a model for EU competition law authorities.

2        Rule 40 in Context

Before dissecting the decision, the considerable impact of the IOC’s rule 40 and its implementation by national Olympic committees (NOCs) must be emphasized. Many athletes look to the Olympic Games as a unique opportunity to gain exposure and benefit financially from their accomplishments, especially considering that many athletes who qualify for the Olympic Games struggle to make a living from their sport. Athletes are greatly reliant on external funding, particularly from sponsors, to fund their career.[3] To further complicate matters, many sports only enjoy a meaningful spotlight during the Olympic Games. Hence, athletes in those sports view the Games as an unparalleled occasion to become known to a wider public and gain new sponsors. So, why does the IOC restrict these opportunities?

Rule 40’s existence is principally due to The Olympic Partner Programme (TOP), a closed group of thirteen sponsors, which was created in 1985 with the aim of diversifying and securing greater means of funding for the Olympic Games.  It was the brainchild of Michael Payne who has defended the importance of preserving the ‘value of the Olympic sponsorship program’ to prevent a return to the days where the funding of the Games was highly dependent on ticket sales.[4] For the IOC, preserving the value of TOP has meant taking aggressive actions against ambush marketing, which according to Payne is ‘any communication or activity that implies, or from which one could reasonably infer, that an organisation is associated with an event, when in fact it is not’. Payne describes the ways in which the IOC has attempted to tackle ambush marketing, which includes educating the public about ambush marketing, preventing ambush marketing through prohibiting non-sponsor association and controlling Olympic imagery among other methods, and finally legal action, which according to Payne, ‘the mere threat of this is often enough to bring the offending party into line’. In this view, rule 40 can mainly be categorized as a preventative measure.

Rule 40 has also experienced an evolution ever since it was first introduced in 1991 into the OC, which has also meant that ‘defining the scope of rule 40 and understanding its nuances is a process that evolves with each iteration of the games’.[5] Although rule 40 has recently moved from a general ban on advertising with limited exceptions into allowing it under severe restrictions, it remains to be seen whether the IOC will fundamentally rethink the conditions applied to athlete advertising. Meanwhile, athletes, who were partly the initiators of the complaint to the Bundeskartellamt, have perhaps realized that public awareness campaigns have not brought about the drastic change they had hoped for. In the present case, the Bundeskartellamt’s attention was drawn to rule 40 OC after a complaint from Athleten Deutschland (German Athlete Commission) and Bundesverband der Deutschen Sportartikelindustrie (Federal Association of the German Sports Goods Industry).

3        Background to the Decision

Before examining the substance of the Bundeskartellamt’s decision, it is important to understand that rule 40, as it was analyzed in the decision, was the one that was in place in the lead up to the Rio 2016 Games.[6] It states:

 “Except as permitted by the IOC Executive Board, no competitor, team official or other team personnel who participates in the Olympic Games may allow his person, name, picture, or sports performances to be used for advertising purposes during the Olympic Games.”

In other words, a general ban on advertisement with limited exceptions. The applicable conditions meant that only athletes with TOP sponsors could launch an advertising campaign during the Rio 2016 Olympic Games and ongoing campaigns from non-TOP sponsors were subject to authorization. Further complicating the matter, NOCs could introduce additional restrictions or opt-out completely from allowing their athletes to advertise during the frozen period.[7] The German Olympic Sports Federation (DOSB), in its 2016 guidelines[AD1]  (page 78), distinguished between DOSB sponsors, Olympic sponsors and non-Olympic sponsors.[8] In the case of non-Olympic sponsors, ‘only advertising activities which had started at least three months prior to the Olympic Games had a chance of being approved’, which means potential sponsors needed to have early concepts ready before that date (early April). It should also be noted that at that time, the DOSB had not yet nominated any athletes for the Olympic Games. In addition to the deadlines, references to the Olympic Movement were strictly forbidden, which included an incredibly broad list of words and phrases.[9] If they wanted to participate in the Games, athletes were forced to subscribe to these rules via the athlete agreement (page 83) [AD2] and any breach could imply sanctions, which included removal from the Olympic Team.[10]

The conditions that these rules impose is succinctly summarized by Grady who explains that though the IOC claimed it had relaxed its rules, it ‘did not create the kinds of opportunities that the IOC may have envisioned’, which in effect ‘precluded almost all but the most powerful global brands from taking full advantage of the ability to feature Olympic athletes during the Games’, a view that was acknowledged by the Bundeskartellamt.[11]

4        The Bundeskartellamt’s Decision

Although the present case was resolved through the commitments made by the IOC, the Bundeskartellamt still provided a preliminary assessment concerning the relevant market, the abuse of a dominant position, possible justifications, and proportionality, which are analyzed below.

4.1       Relevant Market

Having decided to resolve the case on the basis of Article 102 TFEU,[12] the Bundeskartellamt identified the relevant market on the basis of a ‘modified concept of demand-side substitutability’ and defined the market as the ‘market for the organisation and marketing of the Olympic Games’.[13] It considered that the Olympic Games was an event that differed from other major sport events from the consumers’ point of view because of the wide variety of sports that are covered and because certain sports which perhaps are not normally broadcasted in a particular country receive extensive media coverage during the Games.[14] The Bundeskartellamt supported its analysis of the relevant market by referring to MOTOE in which the CJEU also defined the ‘relevant product market for the organisation (and marketing) of sports events according to the type of sport’.[15] Lastly, it found that the athletes participating in the Games to be ‘customers of the organisation and marketing of sport events’.[16] ‘Other well-known competitions’ could be considered as an alternative for certain athletes, however, many athletes practice sports that receive very little media attention outside the Games, meaning that overall the substitutability between the Olympic Games and other major sports events is limited.[17]

4.2       An Abuse of a Dominant Position

Next, the Bundeskartellamt considered the members of the Olympic Movement to be in a collectively dominant position in the aforementioned market and deemed them to be undertakings regardless of the fact that they do not make a profit.[18] It also asserted that the members of the Olympic Movement were abusing their dominant position, hindering effective competition, for several reasons. First, the registration deadlines to request authorization were set too early since athletes did not know whether they were even going to the Olympics in the first place. Moreover, the Bundeskartellamt ruled that the very use of registration and authorization criteria could have a prohibitive effect for certain kinds of advertisements. Even though ‘ongoing’ advertisement could be approved, it was still subject to restrictions since it could not use any ‘designations and symbols as well as images and videos’ connected to the Olympic Games.[19] As stated earlier, these are very extensive and make it ‘difficult to market an athlete’s participation in the Olympic Games’.[20] In the end, the sanctions that athletes could face exacerbated the restriction on competition, especially since the sanctions had no proportionality requirements and an appeal could only be made to the CAS.[21]

4.3       Justifications

At this point the Bundeskartellamt moved to make a preliminary assessment as to whether the abuse of the dominant position inherently pursued legitimate objectives and whether the restriction is proportionate to its claimed objective (the Wouters test[22]).  It is interesting to note that the Bundeskartellamt decided to apply the Wouters test to an Article 102 TFEU case and expressly stated that ‘it is to be assumed that the criteria are also meant to apply with regard to the applicability of Art. 82 EC’ (now Article 102 TFEU) in referring to the CJEU’s Meca-Medina case.[23]  Only one of the pursued objectives of the IOC was considered legitimate, while all the others, including ‘preserving the financial stability and sustainability of the Olympic Movement and the Olympic Games’, ‘preserving the value of the Olympic brand to finance the Olympic solidarity model’, and ‘preventing the excessive commercialisation of the Olympic Games’, were not found to be legitimate.[24] The three rejected objectives reflects the decisional practice of the Commission and the CJEU that ‘economic aims cannot justify restrictions’, which the Bundeskartellamt directly acknowledges.[25] This is why it is interesting that the Bundeskartellamt then found that the ‘prevention of ambush marketing during the frozen period in order to safeguard the funding of the Olympic Games, facilitated in part by Olympic sponsorship programmes, and thus to ensure that the Games can be held on a regular basis’ as the only legitimate objective.[26]

A literal reading of this aim seemingly exposes an economic dimension since the IOC wishes to protect TOP and as a consequence, its own budget. However, the Bundeskartellamt was convinced by the IOC’s contention that this was no economic objective,[27] since the ultimate aim of the objective is to ensure the Olympic Games’ consistent occurrence. It could be argued that there are in fact two objectives mangled into one: (1) the prevention of ambush marketing to protect TOP (an economically motivated objective) and (2) ensuring the regular occurrence of the Games (a non-economically motivated objective). The Bundeskartellamt decided to not disentangle the two and accepted that they were in fact one inseparable objective, whereby the latter sub-objective ultimately sidelines the economic dimension of the first. On the other hand, the CJEU’s case law on economic justifications has not been entirely consistent and there has been occasions where it has accepted economic justifications.[28] Furthermore, an efficiency defense could also allow for economic justifications in which the IOC could argue that preventing ambush marketing in order to protect TOP benefits consumers, outweighing any negative effects to competition.[29] In the end, it might be desirable that any future analysis of this dual objective at least acknowledge that there is an underlying economic interest. [TT3] 

4.4       Proportionality

Before analyzing the proportionality of the measure in terms of the prevention of ambush marketing, the Bundeskartellamt defined ambush marketing as ‘the planned endeavour of a company, which is not an official sponsor of a major (sports) event, to attract public attention to its own business by means of marketing activities related to the event, and thus to profit from the communication performance of the event (e.g. high profile, image) without making a financial contribution’.[30] In the corresponding footnote, the Bundeskartellamt makes reference to the definitions of ambush marketing on Wikipedia, which upon closer inspection is taken from Manuela Sachse’s book Negative Kommunikationseffekte von Sponsoring und Ambush-Marketing bei Sportgroßveranstaltungen. It is rather unfortunate that the Bundeskartellamt did not elaborate on why it chose this particular definition of ambush marketing.

Nonetheless, on the formal aspects, the Bundeskartellamt held that the DOSB’s pre-authorization scheme for individual advertisements was disproportionate, especially due to the deadlines. Moving to substantive aspects, it maintained that individual advertisement could only be prohibited if it violated specific legal provisions such as intellectual property rights or specific contractual obligations.[31] Violations of property rights ‘only exist in cases where the public perception is that there are economic and organisation relations between the owner of the property rights and the company which uses Olympic designations’, referring to the jurisprudence of the German Federal Court of Justice.[32] The Bundeskartellamt makes reference to the reasonably well-informed consumer standard, which is also recognized in EU law,[33] to explain that consumers are able to differentiate between ‘a sponsor’s advertising and a reference to the Olympic Games in a promotional context’ and that simply a positive association or temporal connection with the Olympic Games and Olympic Movement is not a violation of intellectual property rights.[34] In this regard, the Bundeskartellamt only found prohibiting the use of ‘Team Deutschland’ during the Olympic Games and the use of ‘a combination of the respective location and the year’, e.g. Rio 2016, during the frozen period to be proportionate, while finding the other restrictions to be disproportionate.[35] In terms of the restrictions on photos and social media posts, the Bundeskartellamt held that the general prohibition of taking photos at Olympic venues for individual advertising measures and posts on social media accounts that do not have any protected ‘designations or symbols’ to be disproportionate.[36]

Ultimately, the sanctions, in particular sporting sanctions, were judged to be disproportionate because of their potential impact on athletes’ careers, since they could affect the athletes existing and future sponsorship opportunities and a competition ban could also, depending on the athlete’s age and the ban’s length, end an athlete’s career. The very existence of sporting sanctions could have a ‘deterrent effect’.[37] Additionally, the CAS’ exclusive jurisdiction over disputes could jeopardize the effectiveness of competition law since ‘there is no guarantee that the parties’ action against an athlete will also be subject to judicial review under European antitrust law’, especially when considering that neither the Swiss or German courts would conduct such a review in an action against the enforcement of the award.[38]  Sports sanctions are also typically carried out by the sport bodies themselves, without intervention of public bodies. Interestingly, the Bundeskartellamt acknowledged the German athletes’ position that the CAS proceedings were longer and more costly than proceedings in front of German courts, which directly contradicts the IOC’s claimed benefits of sports arbitration.[39]

5        The Commitments and Potential for Further Intervention Under EU law

After two rounds of negotiations, the DOSB was able to put an end to its infringements by making several commitments that brought its policy on athlete advertisement into line with the Bundeskartellamt’s findings. The commitments submitted after the first round did not go far enough to quell the competition concerns and most sponsors and athletes found ‘little or no improvement in the modified guidelines’. The original commitments were deemed to be too restrictive on the protected Olympic related terms, not provide sufficient opportunities for advertising on social media, not sufficiently delineate the responsibilities of the different parties, and the exclusive jurisdiction of the CAS coupled with sporting sanctions continued to have ‘a strong deterrent effect’.[40] After the second round of negotiations, the most important  commitments included: (1) no more authorization required for advertisements during the frozen period and instead athletes can request that the DOSB review planned advertisements beforehand to confirm if it meets the admissibility criteria; (2) advertisement campaigns may now be launched during the frozen period; (3) pictures of athletes during Olympic competitions may be used for advertisement so long as it does not include protected Olympic logos, symbols or designations; (4) videos[41] are restricted only to the German House, the Olympic village or the back of house areas and (5) sports related sanctions are no longer available (only economic sanctions are possible) and athletes may have recourse to German courts. All in all, the new Guidelines will allow athletes to advertise during the Games provided that they observe certain restrictions that mainly relate to intellectual property rights.[42] This compromise fosters a far better balance between the IOC’s interests to protect the value of the Games and TOP and the athletes’ wish to expand their financial opportunities during perhaps the most important time of their careers.

The analysis undertaken by the Bundeskartelamt is likely to influence any future intervention of the European Commission on this issue. After all, it is quite possible that the Commission may have to take action since the Bundeskartellamt’s decision ‘is enforceable only as regards individual advertising and marketing activities of German Olympic athletes on the German market’. In doing so, the Commission may have to elaborate whether a pre-authorization scheme for advertisements with reasonable deadlines could be compatible with EU law and perhaps further scrutinize the definition of ambush marketing and potential objective justifications that are completely void of an economic motive. The Commission would likely evaluate any advertisement pre-authorization regime in light of the ISU criteria.[43] From a pure competition law perspective, it could also be an opportunity for the Commission and ultimately the CJEU to expressly confirm whether the Wouters test extends to Article 102 TFEU.

Regardless, Commissioner Verstager explained that this is ‘an example of the way the network operates, with the Commission and the German competition authority working closely together’. She also underlined that the Bundeskartellamt’s decision could ‘create incentives for a change of the relevant rules at national and international level, with the Commission following closely any developments in this direction’. Thus, the possibility that the Commission will at some point intervene seems dependent on how seriously the IOC takes this decision. In the meantime, British athletes have also threatened legal action on the basis of EU competition law against the British Olympic Association over its implementation of rule 40, which demonstrates the ongoing nature of this saga.

6        Conclusion

The Bundeskartellamt’s narrow interpretation of ambush marketing and emphasis on the protection of intellectual property rights will most likely influence the IOC’s strategy to protect the value of TOP. For example, it could prompt the IOC to place greater efforts into expanding its protected properties. Nevertheless, the IOC’s war against ambush marketing has widened from its original concept and even Michael Payne has been one to express his concern about the extent to which the IOC has gone in order to protect TOP and has expressed the need to apply the rules with ‘balance and common sense’. Albeit these comments were made concerning the rules for ‘clean’ venues at the London 2012 Summer Olympics, there is a certain resonance to the present situation and begs the question whether drastically restricting athletes in their often one-time chance to earn decent money through sponsoring is absolutely necessary to protect the economic viability of the Olympics as a whole.

[1] When the blog refers to rule 40, it refers specifically to bye law 3 of rule 40 OC.

[2] The ‘blackout’ period starts 9 days before the Olympic Game’s opening ceremony to 3 days after the closing ceremony.

[3] Nicholas Gary Schlereth and Evan Frederick, ‘Going for Gold: Social Media and the USOC’ [2017] 27 Journal of Legal Aspects of Sport 19.

[4] Michael Payne, ‘Ambush Marketing: The Undeserved Advantage’ [1998] 15 Psychology and Marketing 323.

[5] John Grady, ‘Analyzing Rule 40’s Restrictions on Using Atheletes in Olympic Sponsorship at Rio 2016’ [2017] 15 Entertainment and Sports Law Journal 1.

[6] Bundeskartellamt, Decision pursuant to Section 32b GWB Public version, B-226/17 (February 25, 2019) para 3.

[7] ibid para 5.

[8] ibid para 7.

[9] See ibid para 8 for examples.

[10] ibid para 11 and 65.

[11] Grady (n 7) and ibid para 69.

[12] Decision pursuant to Section 32b GWB Public version, B-226/17 (n 3) para 41.

[13] ibid para 44 and 56.

[14] ibid para 46-47.

[15] ibid para 46.

[16] ibid para 53.

[17] ibid para 54.

[18] ibid para 58-63.

[19] ibid para 71.

[20] ibid.

[21] ibid para 75-76.

[22] Case C-309/99 Wouters and Others [2002] ECLI:EU:C:2002:98, para 97.

[23] See Decision pursuant to Section 32b GWB Public version, B-226/17 (n 3) footnote 52.

[24] ibid para 102-105.

[25] See International Skating Union’s Eligibility rules (CASE AT. 40208) [2017] C(2017) 8240, footnote 350 and ibid para 95.

[26] Decision pursuant to Section 32b GWB Public version, B-226/17 (n 3) para 96.

[27] ibid para 27.

[28] For an exploration of accepted economic objectives see Sue Arrowsmith, ‘Rethinking the Approach to Economic Justifications under the EU's Free Movement Rules’ [2015] 69 Current Legal Problems 307.

[29] See for example, Case C-209/10 Post Danmark A/S v Konkurrencerådet [2012] ECLI:EU:C:2012:172, para 41-42.

[30] ibid para 97.

[31] ibid para 108-109.

[32] ibid para 110, referring to Federal Court of Justice, judgment of 15 May 2014 – I ZR 131/13, Olympia-Rabatt.

[33] Case C-210/96 Gut Springenheide and Tusky v Oberkreisdirektor des Kreises Steinfurt [1998] ECLI:EU:C:1998:369, para 31.

[34] Decision pursuant to Section 32b GWB Public version, B-226/17 (n 3) para 110-111.

[35] ibid para 115-118.

[36] ibid 119-120.

[37] ibid para 122.

[38] ibid para 124.

[39] ibid para 124.

[40] ibid para 128.

[41] Protected Olympic logos, symbols or designations are also not allowed in videos.

[42] Decision pursuant to Section 32b GWB Public version, B-226/17 (n 3) para 136-148.

[43] A pre-authorization scheme must (a) ‘provide for sanctions and authorization criteria that are inherent in the pursuit of legitimate objectives’, (b) ‘provide for objective, transparent and non-discriminatory sanctions and authorization criteria’ that are proportionate to its objectives, and (c) ‘provide for an objective, transparent and non-discriminatory procedure for the adoption and effective review of decisions’.