Olympic Games, exploitation by the athlete of his image during the Games and protection of the Olympic symbols

scpa BERTRAND
02.08.21 12:39 Comment (s)
Olympic Games and use of the image of athletes

During the Tokyo Olympics, Olympic athletes participating in the Games can now, thanks to an amendment to Article 40 of the Olympic Charter, use, under certain conditions, their names, images or sports performances for advertising purposes.
[Part 1]

part 1 : Evolution of article 40 of the Olympic Charter, between protection the use of the Olympic symbols and claim by the athlete of the advertising use on his image.
part 2 : The framework and conditions of commercial exploitation by the sportsmen of their names, images and sports performances during the Olympic Games.

The protection of the exploitation of the Olympic symbols justified by the financial stability of the Olympic Movement

In 1985, the International Olympic Committee (“IOC”) created the Olympic Partners Program (The Olympic Partners) in order to attract multinationals likely to provide the necessary funding for the smooth running of the Olympic Games and to enable athletes from more than 200 countries to take part in this competition.

In return, these companies obtain exclusive marketing rights and the right to use the Olympic Properties in their communication.

 

In application of the principle of solidarity, the IOC donates 90% of the income generated, in particular to the Organizing Committees of the Olympic and Paralympic Games, to the International Federations and to the National Olympic Committees.

 

Thus, world sport is largely financed by contributions from television rights and Olympic partners. The challenge for the Olympic movement is therefore to protect this exploitation by its partners in order to maintain their value and guarantee economic stability at the Olympic Games (IOC, Business opportunities for Tokyo 2020 Olympics attendees).

 

For these different reasons, each National Olympic Committee (NOC) is responsible for the implementation of these principles on its territory. In the host countries of Tokyo 2020 and of future editions of the Olympic Games, the responsibility for the implementation of these principles is shared between the NOC and the Organizing Committee of the Olympic Games ("OCOG").

In France, all Olympic properties enjoy legislative protection (art. L. 141-5 of the Sports Code) implemented by the French National Olympic Sports Committee ("CNOSF") and the OCOG Paris 2024 in close collaboration with the IOC.

 

Indeed, the Olympic Charter attributes to each National Olympic Committee the responsibility of ensuring that the Olympic symbol (the intertwined rings), the motto, the emblems, the designations, etc., are respected in its country.


In application of the Olympic Charter, article L.141-5 of the Sports Code establishes an independent protection regime for Olympic brands and grants the CNOSF the exclusive right to act in defense of the Olympic signs and symbols mentioned in said article (Paris, Jan. 21, 2011, Assoc. French National Olympic and Sports Committee c / Company incorporated under Maltese law Interwetten Malta Ltd, n ° 09/20261).

Olympic Games Tokyo and commercial exploitation by sportsmen of their images

The claim by athletes of their rights to their names, images and sports performances

In application of the principles above, § 3 of article 40 of the Olympic Charter foresaw, in its version available now until 2019:


"Unless authorized by the IOC Executive Board, no competitor, team official or other member of the team person who participates in the Olympic Games shall allow his person, name, image or sports performances to be exploited for any purpose. advertising during the Olympic Games". 

In 2012, chis prohibition imposed by Rule 40 in the name of the protection of Olympic property has been contested by certain sportsmen (in particular the American athletes Sanya RICHARDS-ROSS and Nick SYMMONDS). 


Athletes, unable to allow their person, name, image or sporting performance to be used for advertising purposes during the Olympic Games, were in fact barred from commercial opportunities during a period which at the same time often represented the height of the Olympic Games. their career.

 

This dispute has initiated a legal debate on the merits of this protection and the possible arrangements.

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On February 27, 2019, the Federal Cartel Office (the German Federal Competition Authority), considered that the trade restrictions imposed on German athletes during the Olympic Games by Article 40 of the IOC Charter were “abusive”. According to its president Mr. Andreas MUNDT, "while the athletes are the key figures of the Olympic Games, they cannot directly benefit from the significant advertising revenues generated by the IOC with the official partners of the Olympic Games".

As a result, the German Olympic Sports Confederation (Deutscher Olympischer Sportbund, "DOSB") and the IOC have made a commitment to the Federal Cartel Office relax the advertising restrictions under Rule 40. 

The new wording of article 40 of the Olympic Charter

It is under these conditions that theArticle 40 of the Olympic Charter has been modified in order, on the one hand, to authorize the exploitation of the participants' image, and on the other hand, to maintain this exploitation under certain conditions.

Since June 26, 2019, Article 40 is written as follows: 

"40 Participation in the Olympic Games

 

To participate in the Olympic Games, a competitor, team official or other member of team personnel must comply with the Olympic Charter and the World Anti-Doping Code, including the conditions for participation established by the IOC, as well as the rules. of the IF concerned as approved by the IOC; the competitor, team official or other member of the team staff must also be entered by his NOC.

 

Bye-law to Rule 40


1. Each IF establishes the rules for participation in the Olympic Games specific to its sport, including the qualification criteria, in accordance with the Olympic Charter. These criteria must be submitted to the IOC Executive Board for approval.


2. The application of the qualification criteria is the responsibility of the IFs, their affiliated national federations and the NOCs in the areas of their respective responsibilities.


3. Competitors, team officials and other team personnel participating in the Olympic Games may allow their person, name, image or sports performance to be used for publicity purposes during the Olympic Games in accordance with the Principles. determined by the IOC Executive Board.


4. The entry or participation of a competitor in the Olympic Games cannot be conditional on any financial compensation.".

The commercial exploitation by the Olympic sportsman of his name, his image and his sports performances must therefore comply "the principles determined by the IOC Executive Board".


La part 2 of this article is devoted to principles set by this commission and their transposition, in France, by the French National Olympic Committee.


CNOSF and sportsman's right to his image

On the same theme, see the following articles:

French athletes allowed to use their sponsors and partners during the period of the Olympic Games

[07.02.2020]

Right to information and sports clips

[12.10.2014]

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