DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

V I S A K H A P A T N A M , A . P . , I N D I A

TOPIC:s
INTERNATIONAL OLYMPIC COMMITTEE

SUBJECT:
PUBLIC INTERNATIONAL LAW

FACULTY:
Ms. M. Varshita

SUBMITTED BY:
S. Visesh Gopal
2015111
Semester: V

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 CONTENTS

 INTRODUCTION

 LEGAL STATUS OF THE IOC

 STATUS OF IOC UNDER PIL

 STRUCTURE AND GOVERNANCE OF IOC

 THE COURT OF ARBITRATION FOR SPORT

 THE IOC AS AN INTERNATIONAL PERSON

 CORRUPTION IN IOC

 RULE 40 OF OLYMPIC CHARTER

 PURPOSE OF RULE 40

 SCOPE OF RULE 40

 JUDICIAL TRENDS

 AMENDING RULE 40

 CONCLUSION

 BIBLIOGRAPHY

INTRODUCTION:

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 On June 23, 1894 the International Athletic Congress of Paris unanimously voted in
favour of establishing the modern Olympic Games, and the IOC was created. The IOC is a
non-profit organization, comprised of members from over fifty countries. This participation
in the IOC is nearly universal. The unusual influence of the IOC in the legal process is
partially explained by the Olympic Games high visibility and charisma. The IOC governs the
Olympic Movement, owns the rights to the Olympic Games, and is the supreme authority of
the Olympic Movement.

The role of the IOC is to lead the promotion of Olympism in accordance with the
Olympic Charter. The IOC's responsibilities include choosing the host cities for the Games
and ensuring that the selected host city follows the rules of the Olympic Charter; recognizing
and supporting the National Olympic Committees and International Federations respective
rights determining new IOC members and negotiating television rights.

The current President of the IOC, Juan Antonio Samaranch, stated that the IOC's most
fundamental role is quasi-judicial to ensure the respect and interpretation of the 'Olympic
Charter'. Members of the IOC are selected by the IOC itself. The official languages of the
IOC are French and English. Only one member from a country may serve on the IOC,
however, the IOC may elect a second member in countries where the Games have been held.
An IOC member is a representative of the IOC in his or her respective country, and is not a
delegate of the country to the IOC.

The Olympic Charter mandates that all IOC members must retire by the end of the
calendar year in which he or she turns seventy-five years of age; however, those who were
elected before 1966 serve for life. The IOC Executive Board consists of the President, four
Vice Presidents and six additional members. The IOC President is elected by secret ballot by
a majority of its members present, for an eight-year term and is eligible for re-election for
successive four-year terms. The four IOC Vice Presidents serve four-year terms and may be
re-elected after a minimum interval of four years between terms.1

LEGAL STATUS OF THE IOC:

1
Wollmann, A.S., Nationality requirements in Olympic sports , Oisterwijk, Wolf Legal Publishers, 2016.

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 The following analysis focuses under aspects of public international law on the bases
and possibilities of the IOC and the Olympic movement vis-a-vis states.

The IOC

The IOC is not the only institution of the Olympic movement and international sports
but certainly the foremost. It claims to lead the whole of the sports world, which accepts the
principles of the Olympic Charter. In 1894 Pierre de Coubertin founded the modern IOC and
thus the Olympic Games on his own initiative.

Today the IOC consists of 92 members from 73 countries of which 46 are from
countries of the Third World. The total number of IOC members is not stipulated by the
Olympic Charter. According to its Rule 12 the IOC selects such persons as it considers
qualified to be members, provided that they are citizens of and reside in a country which
possesses a NOC recognized by the IOC.2

There shall be only one member in any country except in the largest and most active
countries in the Olympic movement, and in those where the Olympic Games have been held,
where there may be a maximum of two. Members of the IOC are representatives of the IOC
in their countries and not their delegates to the IOC.

They may not accept from governments or from any organisations or individuals
instructions which shall in any way bind them or interfere with the independence of their
vote.

Therefore, the IOC is composed neither of state representatives nor representatives of

the NOCs, but recruits its members by co-opting leading personalities from national and
international sports which Coubertin called a club damis. Industrialists, full-time sports
officials, reigning sovereigns, diplomats, a Prime Minister and ministers as well as a judge of
the International Court of Justice are among the present IOC members.

It is the present policy of the IOC to pursue geographic expansion and balanced
representation in its organization. The members have equal rights, their protocol order
follows the principle of seniority of their membership.

2
https://www.researchgate.net/publication/2925037_The_International_Olympic_Committee_and_the_olympic_
system_The_governance_of_world_sport, Accessed Date: 1st April, 2018

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 The competent bodies of the IOC are the Session, the Executive Board and the
President. The Session is the annual general meeting of the IOC, which is held each year in
different cities, except in the year of the Olympic Games, when two sessions are held at the
locations of the Olympic Games and the Winter Games. The Session has the main decision-
making power, in particular to elect new members, choose the Olympic cities and decide
upon the admission of sports and new disciplines to the Olympic Programme and the
recognition of NOCs-5 and other international sports organizations. Decisions of the Session
are made by simple majority except for the modification of the Rules, for which a 2/3
majority is necessary. The Session meets behind closed doors; observers and the public are
not admitted.

The Executive Board is composed of the President, three Vice-Presidents and seven
elected members. As a rule, it is convened by the President several times a year. It holds
regular joint meetings with the International Federations and NOCs.

The Executive Board manages the current affairs, in particular, it ensures that the rules
are strictly observed, it recommends suitable persons for election, it controls the IOC finances
and it accepts the ultimate responsibility for the administration of the IOC.

In fact, the Executive Board is the decisive organ of the IOC, which administers
business and prepares the resolutions of the Session. Currently, under the strict rule of
President Samaranch it is about to be restructured in departments.

The Executive Board assumes an important responsibility as a judicial body within the
jurisdiction of the IOC.3

The President is elected by an absolute majority of the IOC members for a term of eight
years, which can be followed by re-election for successive terms of four years. He performs
the duties assigned to him by the Rules. Finally, he owes his leading role to his power to
convene Session, Executive Board and Olympic Congress, to draw up the agenda, to take the
chair and to settle all matters of procedure. According to the decisions of the Executive
Board, he is charged with the current affairs and represents the IOC. The Secretariat of the
IOC is situated in Lausanne, where an IOC-Director, presently Mine. M. Berlioux, presides
over about 40 employees. While in the 1950s, this Secretariat was made up only of the

3
Höfling, W., J. Horst und M. Nolte (eds.), Olympische Spiele, Tübingen, Mohr Siebeck, 2013.

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Chancellor of the IOC and a secretary, it is now being restructured in both organization and
structure to become an effective headquarter. 4

At present, there exist 17 commissions as well as 1 working group, comprising, in part,

bilaterally or trilaterally representatives of the NOCs and or the IFs. The Commission of the
Olympic movement is the most important one, which has emerged from the former Tripartite
Commission. Under the chairmanship of the IOC-President, the Commission is composed of
the members of the Executive Board, nine representatives of both the NOCs and IFs and the
President of the Athletes Commission. It deals with matters of common interest to the entire
Olympic movement.

The Olympic Congress is another forum of the three component parts of the Olympic
movement, the IOC, the IFs and the NOCs, although it is in itself not an organ of the 1OC.s
In addition, it is composed of representatives of other organizations and individuals invited
by the IOC."9 As such, the UN Educational, Scientific and Cultural Organisation
(UNESCO), for example, participated in the 11th Olympic Congress. In this way the
Congress, which in future will convene every eight years, unites all organizations and bodies
interested in sports. The Congress is unable to reach binding decisions, it is restricted to pass
resolutions.5

The National Olympic Committees

Even though the IOC is not an association of the NOC they succumb to the jurisdiction
of the IOC, according to the rules of the Olympic Charter, in particular, Rule 24 and Rule 25.
The role of the NOCs is to develop the Olympic movement and to delegate participants to the
Olympic Games. Rules 24 B to F and 25, as well as the Model Constitution for a National
Olympic Committee state minimum standards regarding the structure and responsibilities of
the NOCs. Most importantly, they must be independent of and autonomous towards politics,
religion and commerce.

As a rule, the NOCs are composed of members of the national Olympic sports
federations, the IOC members of the country and elected personalities. Through the
obligatory membership of IOC members in their respective NOC, NOCs and the IOC are

4
Hilpert, H., Die Olympischen Spiele der Antike und Moderne im Rechtsvergleich, Stuttgart, Boorberg, 2014.
5
Javaloyes Sanchis, V., El régimen jur%́dico del Tribunal Arbitral del Deporte, Cizur Menor, Aranzadi, 2014.

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closely interlocked. In most countries NOCs are organized as associations having legal status,
in some countries, however, they are part of the public authorities.

Under these conditions, laid down in the Charter, the IOC recognizes a new NOC, a
recognition which can be suspended or withdrawn. Today 159 NOCs are recognized.
Regarding the representation of a country by its NOC, the Olympic Charter, other than public
international law, defines "country" as territory or part of territory, which in its absolute
discretion is accepted by the IOC as constituting the area of jurisdiction of a recognized
NOC. For the promotion of their common interests, the NOCs founded the Association of
National Olympic Committees in 1966 as a representative body with its seat in Paris.6

STATUS OF IOC UNDER PIL:

The IOC is not an international organization having international legal personality,

because all definitions of an international organization require an act of foundation under
public international law and the membership of states or other subjects of public international
law. The IOC, however, lacks in both. Besides intergovernmental organizations, there are a
vast number of international private institutions with an international scope of activity,
generally known as international non-governmental organizations.

By international practice and theory NGOs are such institutions, which are not
established by intergovernmental agreement, but by private persons or institutions of different
states. This definition is restricted further to organizations with non-commercial aims. Thus,
economic entities like multinational or transnational enterprises can be excluded because they
pose very specific questions.

Concrete criteria, primarily suited for description rather than definition, have been
worked out by the Union of International Associations, which register the NGOs in various
categories. Eligible for section A are those NGOs which satisfy the following conditions:

(a) The aims must be genuinely international in character.

(b) There must be individual or collective membership with full voting rights from at
least three countries.

6
https://www.iucn.org/theme/business-and-biodiversity/our-work/business-partnerships projects/international-
olympic-committee, Accessed Date: 2nd April, 2018

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 (c) The constitution must provide for a formal structure giving members the right to
periodically elect a governing body and officers. There must be permanent headquarters.

(d) Substantial contributions to the budget must come from at least three countries.

(e) The organization should be independent.

(f) Evidence of current activity must be available.

(g) No stipulations are made as to size or importance.7

As the portrayal of the IOC demonstrated, it has to be qualified as an NGO. All the
more so, it would have to be regarded as a model case of an NGO, for it fulfils the above
mentioned criteria perfectly. Universality is the foremost principle of the IOC. Presently, the
IOC members come from 73 countries. The Olympic Charter has organized a structure,
which is similar to that of an intergovernmental organization: Session, Executive Board,
President and a permanent Secretariat. As regards financial contributions, the IOC is
completely independent of third parties subsidies, for the proceeds of broadcasting rights
finance the IOC almost entirely. The IOC is independent not only by virtue of its Charter but
also in practice. The IOC is permanently active, but demonstrates its existence most distinctly
every four years through the Olympic Games. As political and economic interference shows,
the IOC is of considerable international importance.

Except for the possible consultative status within the UN and other specialized
organizations, public international law does not connect specific legal consequences to the
qualification as an NGO. Its legal status remains a matter of municipal and international
private law.

However, when the IOC is faced with non-participation of teams for political reasons or
the refusal of Olympic freedoms, it is directly or indirectly subject to state powers. In such an
event, the IOC suffers from the severe deficiency that its Charter, corresponding to the highly
idealistic and political character of the Olympic movement, does not take into consideration
the rule immanent to the states in modern international sports relations and, in particular, in
the preparation and running of the Games. According to Rule 9, "the Games are contests
between individuals and not between countries". Reality, however, is far from this ideal. As

7
Mestre, A.M., The Law of the Olympic Games , The Hague, T.M.C. Asser Press, 2009.

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the Olympic Charter does not take account of the significance of states in modern Olympics,
it leaves the IOC powerless with regards to the states.

It is not only in this respect that the Olympic Charter is regarded as a constitution,
which no longer meets the challenges of today, so that its revision is generally felt to be
necessary and has already been tackled by the IOC. The declarations issued by the host
countries of the Olympic Games are too general to make the states obey specific obligations,
if necessary. In addition the binding character of such declarations is not clear. As the IOC
lacks international legal personality, a unilateral declaration has no binding effect under
public international law. Although the declaration might create other possible binding
obligations, the state remains free to make use of its governmental powers, and the
discrepancy between functional internationality and the IOCs legal status becomes obvious. 8

STRUCTURE AND GOVERNANCE OF IOC:

The IOC is a Swiss non-profit non-governmental organization subject to suit by both

member nations and individuals. It has been sued by both. For example, Kuwait sued the IOC
in Switzerland for one billion dollars in damages due to the suspension of its national
Olympic teams, and U.S. Olympian Justin Reiter unsuccessfully sued the IOC in Switzerland
to overturn its decision to remove Parallel Giant Slalom snowboarding racing from the
Winter Olympics.

The IOC is the highest level of governance in international sports. The IOC sets policies
with respect to the Olympic Games, and two other groups of organizations are beneath it i.e.
National Olympic Committees and International Sports Federations. The NOCs are
responsible for fielding Olympic teams from each nation and determining which cities in
their respective countries may apply to organize the Olympic Games. The IFs are
nongovernmental organizations recognized by the IOC as the governing bodies for their
respective sports.

For example, FIFA is the IF responsible for the development of international soccer.
IFs monitor and enforce the integrity of their respective sports, organize separate

8
https://stillmed.olympic.org/Documents/olympic_charter_en.pdf, Accessed Date: 5th April, 2018

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international events and competitions, and manage their events at the Olympic Games. The
National Federations for individual sports are affiliated with the IFs.9

The IOC is also responsible for working with the Organizing Committees for the
Olympic Games, which is organized and supervised by the NOC of the host country. The
OCOG is responsible for, among other things, building or updating facilities and venues for
all competitions, acquiring lodging and adequate medical facilities for athletes, ensuring
adequate transportation is available for the Olympic Games, and organizing cultural events
and celebrations.

The highest body of the IOC is the Session, which is the general meeting of all IOC
members. The Session meets once per year and is the only body entitled to select the host city
for the Olympic Games. Decisions at the Session are made by majority vote, and half of the
IOC members are required to be in attendance for quorum. IOC members are selected by
current members through the Members Election Commission, previously the Nominations
Commission. General governance of the IOC is managed by the Executive Board, which
consists of the President, four Vice Presidents, and ten general members. The Executive
Board is elected by secret ballot at the Session to a four-year term. The Executive Board is
responsible for management of the IOC's finances, publication of the Annual Report, the
internal rules and regulations of the IOC, decisions regarding the re-election of existing IOC
members, and appointment of the IOC Director General.

The IOC Director General is responsible for the administration of the IOC, under the
authority of the President. The Director General is based in Lausanne, Switzerland and
conducts the day-today work of the IOC. The IOC had 521 full-time employees at the end of
2015 and runs a number of programs in collaboration with the United Nations meant to
further develop international sport across different cultures.

THE COURT OF ARBITRATION FOR SPORT:

Background

In 1983, President Samaranch utilized the IOC's international personality and

established an arbitration tribunal entitled the Court of Arbitration for Sport (CAS). This
court was created in order to settle disputes that arise under the Olympic umbrella. The CAS

9
Richards, A., P. Fussey and A. Silke, Terrorism and the Olympics: Major Event Security and Lessons for the
Future, London, Routledge, 2011.

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enabled sports organizations, athletes, and their partners to settle their disputes without the
interference of ordinary courts.

The jurisdiction of CAS includes disputes directly or indirectly linked with sport. The
Statute and Regulations of the CAS came into force June 30, 1984 and has been operational
since 1986. The CAS is made up of sixty lawyers who are familiar with issues relating to
sport and its composition is defined under article 6 of the Statute of the Court of Arbitration
for Sport. The CAS has all the powers of an international court of arbitration. 10

The CAS may convene at its headquarters in Lausanne or anywhere else, upon the
decision of the President of the CAS, subject to the approval of the Panel and the agreement
of the parties. Swiss law applies unless a particular arbitration agreement provides otherwise.
Both parties must agree in writing to have their case heard by the CAS because jurisdiction is
optional. Unless the parties in the arbitration agreement have decided otherwise, the CAS
holds the majority of its hearings in camera. Its judgments are binding and awards are final
unless a critical new fact becomes apparent. The authority of the CAS to decide disputes
arising out of the Olympic Games, as well as the ability to give advisory opinions, suggests
that it is a fertile source for principles and norms in the development of international sports
law.11

After Amendment:

The CAS Statute and Regulations were amended by the IOC on September 20, 1990.
Prior to the 1990 amendments, the CAS appeared to be the "little brother" of the IOC rather
than an independent tribunal as originally intended. The amendments illustrate that the CAS
is beginning to move away from its "little brother" status. For example, under Article 6 of the
prior Statute, the President of the IOC was also the President of the CAS. Whereas the
amended Statute under Article 6 states: "The President of the CAS is chosen from among the
members of the CAS by the President of the IOC.

This amendment yields a more independent CAS and illustrates the IOC is concerned
with protecting and preserving an individual's right to due process. If the IOC did not amend
Article 6, anyone with standing to take the IOC or one of the associations recognized by the

10
Gauthier, R., The International Olympic Committee, Law, and Accountability , London, New York,
Routledge, Taylor & Francis Group, 2017.
11
http://www.lboro.ac.uk/microsites/ssehs/olympic-studies/cv_abs/IOC_Governance-Jean-Loup.pdf, Accessed
Date: 7th April, 2018

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IOC to the CAS, would be staring into the eyes of the President of the IOC. Surely a
constitutional issue would arise in our own domestic judicial system if Chief Justice
Rehnquist participated in and ran hearings for the same defendant in the district court, circuit
court of appeals, and the Supreme Court.

Although the above problem has been rectified, the IOC has fallen short of creating an
independent CAS. Article 6 of the new Statute also states: “The President of the CAS shall be
a member of the IOC.” Why should this be so? If the CAS wants to maintain itself as a
completely separate and independent body from the IOC, why not have a completely separate
and independent President, one who is knowledgeable in the area of sport, but at the same
time unaffiliated with the IOC.

In fact, if the CAS is a truly independent tribunal, it would not have thirty of its sixty
members chosen by the IOC, fifteen of which include IOC members. Additionally, the CAS
Statute may be modified by the IOC Session upon the proposal of the IOC Executive Board
and a two-thirds majority vote.

The IOC power to alter and amend the CAS Statute gives it one more string to pull, a
string that must be cut if the CAS is to be viewed as an independent equitable arbitration
tribunal. Furthermore, the CAS operating budget is completely funded by the IOC. If the
CAS is to obtain true independence, funding should not come from an organization that may
one day find itself arguing before a CAS panel.

THE IOC AS AN INTERNATIONAL PERSON:

The necessary attribute of international personality, is the power to enter directly or

immediately into relationships (by treaty or otherwise) with other international persons. In
other words, international legal personality involves the capacity to perform legal acts on the
international plane rather than within a municipal law system.

International organizations have long assumed a capacity to enter into agreements with
states irrespective of whether that power could be found to be expressed or implied in its
constituent instrument.

For example, prior to the 1991 amendments of the Olympic Charter, the IOC's
international legal personality was never defined. Nonetheless, the IOC has been acting as an
international person long before the 1991 amendments explicitly defined the IOC to be an

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international NGO with the status of a legal person. On September 17, 1981, the Swiss
Federal Council, the country's highest executive body, published a decree which affirmed the
IOC's status as an international person.

The Federal Council has decided to expressly recognize the importance and the
universal vocation of your Committee IOC in the world of sport. Moreover, the Federal
Council wishes to note that it is in the interests of our country to have your Committee IOC
here, where it has had its headquarters since 1915, within the area of Switzerland's external
relations.12

CORRUPTION IN IOC:

International sports provide a fertile ground for corruption billions of dollars in

revenues at stake, competition among cities for hosting privileges that can result in
substantial proceeds and resources, a lack of transparency in decision making, and public
officials in the midst of it all. Rising above corruption can seem like a formidable feat.

The investigations and resulting criminal proceedings and litigation related to alleged
corruption perpetrated by executives at the Federation Internationale de Football Association
(FIFA) highlight the risk of corruption in international sports. In May 2015, the United States
indicted fourteen former FIFA officials with a variety of charges, including racketeering,
money laundering, and wire fraud.

After the indictment, an independent investigation conducted by FIFA's counsel

revealed a coordinated effort by three former top officials to corruptly enrich themselves with
over 79 million Swiss francs in the last five years using excessive salaries, World Cup
bonuses, and other incentives. More recently, in November 2016, the former governor of Rio
de Janeiro, was arrested on corruption charges for allegedly taking bribes in connection with
public construction projects, including the renovation of the Maracani Stadium before the
2014 FIFA World Cup and 2016 Olympic Games.

The opportunity for corruption within international sports organizations is hardly

surprising the amount of money generated by the largest sporting events can be staggering.

12
https://www.historyonthenet.com/the-olympics-international-olympic-committee/, Accessed Date: 9th April,
2018

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The 2014 World Cup in Brazil generated $4.8 billion in revenue for FIFA, with $2.2 billion
in expenses.

In addition, revenue and brand recognition can create bad incentives for corporate
partners. For example, two sports marketing companies associated with FIFA were convicted
of criminal wrongdoing and agreed to forfeit over $190 million,' and prosecutors reportedly
are investigating subsidiaries of DirecTV and Fox for allegedly bribing soccer officials to
acquire broadcast rights for soccer tournaments. Notably, however FIFA is not the largest
international sporting organization, nor is the World Cup the most recognizable recurring
sporting event.13

The International Olympic Committee (IOC) describes the Olympic Games as the
world's biggest sporting event and the Olympic rings as one of the most widely recognized
symbols in the world. Outlays to host the Olympic Games are enormous for the host cities,
and revenues are on par or higher than those collected by FIFA. As noted in more detail
below, the IOC has embarked on a number of reforms to increase its commitment to good
governance and ethics, but corruption allegations still swirl around bids for the 2016 and
2020 Summer Olympic Games.

The IOC operates in an industry that presents risks for corruption, routinely deals with
public officials, and often conducts its business in countries perceived to have high levels of
corruption. As such, the IOC is expected to maintain an effective compliance program to
prevent and detect potential misconduct.14

RULE 40 OF OLYMOIC CHARTER:

The emergence of social media such as Twitter has presented a new challenge for the
International Olympic Committee and official Olympic sponsors: how to limit what athletes
may Tweet throughout the Games. IOC Rule 40 prohibits athletes from associating with non-
official Olympic sponsors immediately before, during, and immediately after the Games for
advertising purposes.
With the legitimate interests of the IOC, Olympic athletes, and the official Olympic
sponsors at stake, the IOC should amend Rule 40 to reflect these competing legitimate
interests while protecting the underlying goals of the IOC and official Olympic sponsors.

13
https://www.britannica.com/topic/International-Olympic-Committee, Accessed Date:10th April, 2018
14
Rürup, R. (ed.), Selwyn, P.E. (transl.), 1936 : die Olympischen Spiele und der Nationalsozialismus : eine
Dokumentation = 1936 : the Olympic Games and National Socialism : a documentation, Berlin, Stiftung
Topographie des Terrors, 1999

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 Many commentators dubbed the 2012 London Summer Olympic Games (London
Games) the Twitter Games.15With over 150 million Olympic-related Tweets in just sixteen
days, the International Olympic Committee (IOC) basked in the glow of free advertising.
Olympic athletes, however, have a bone to pick with the IOC specifically, IOC Rule 40.
Rule 40 states the following:
Except as permitted by the IOC Executive Board, no competitor, coach, trainer or
official 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.
The United States Olympic Committee (USOC) has the authority to sanction any athlete
that fails to comply Rule 40, including disqualification from the Games and/or withdrawal of
the Participant's accreditation. As seen during the London Games, an act such as posting a
photograph of a non-official sponsor's shoe on Twitter is enough to jeopardize an athlete's
participation in the Games.
In light of the fact that Olympic athletes are not monetarily compensated for
participating in the Games, many argue that Rule 40 serves to prohibit Olympic athletes from
capitalizing on their success at the peak of their exposure: the Olympic Games. Olympic
athletes are thus limited in their ability to promote their sponsors, many of whom are largely
responsible for funding the athletes' year-round training.
PURPOSE OF RULE 40:
Although Rule 40 is no new addition to the Olympic Charter, social media such as
Twitter and Facebook has re-defined its scope and application. Traditionally, Rule 40
protected official Olympic sponsors by safeguarding against ambush marketing, i.e. the
practice of non-official
Olympic sponsors engaging in unauthorized association and commercialization of the
Games. Accordingly, the IOC maintains that Rule 40 serves to protect against ambush
marketing; prevent unauthorized commercialization of the Games; and to protect the integrity
of the athlete’s performance at the Games. While preventing athletes from appearing in
television or print advertisements during the Games is a legitimate interest of the IOC, many

15
Nick Mulvenney, No Regrets Over 'Twitter Games'for IOC, REUTERS, http://www.reuters.com/article/2012/0
7/31/us-oly-twitter-dayidUSBRE86UOPA20120731 ("The International Olympic Committee (JOC) has no
regrets about embracing social media for what some are calling the first 'Twitter Games'....")., Accessed
Date: 11th April, 2018

15
argue that Rule 40 overreaches its boundaries by significantly limiting what athletes may post
on their personal Twitter accounts.16
Social Media Guidelines
In an effort to ensure that athletes fully appreciate the parameters of Rule 40, the IOC
provides athletes with Social Media Guidelines that detail the scope and application of Rule
40. In general, the IOC encourages all social media activity provided that it is not for
commercial and/or advertising purposes.
The Guidelines make clear that any Tweets must be in first-person and conform to the
Olympic spirit. The Guidelines further state that athletes are prohibited from allowing their
picture or sports performance to be used for advertising purposes during the blackout period
of the Olympic Games. But advertising purposes in this context stretches beyond traditional
notions of advertising and limits what an athlete may post on his or her personal Twitter
account.17
Deemed Consent: An Exception to Rule 40
The 2012 IOC Rules set forth an exception to Rule 40 in instances of deemed consent.
This exception permits an athlete’s personal website to carry advertising for the athletes
personal sponsors, provided that the adverts on the sites comply with these guidelines and
any references to the Games are only within biographical details of the Participants
achievements. But under the blogging guidelines, an athlete’s blog should not mention [his or
her] sponsors. These blogging guidelines provide the following:
The IOC encourages all social media and blogging activity at the Olympic Games
provided that it is not for commercial and/or advertising purposes and that it does not create
or imply an unauthorized association of a third party with the IOC, the Olympic Games or the
Olympic movement.
Furthermore, participants and other accredited persons are not permitted to promote
any brand, product or service within a posting, blog or tweet or otherwise on any social media
platforms or on any websites.
Interestingly, however, the IOC encourages participants and other accredited persons to
link their blogs, websites, or other social media platforms to the official site of the Olympic
Movement the official site of the Olympic Games and the official site of the relevant NOC.

16
Schaus, G.P. and Wenn, S.R., Onward to the Olympics: Historical Perspectives on the Olympic Games,
Waterloo, ON, Wilfrid Laurier University Press, 2007.
17
Lewis Wiltshire, The Olympics on Twitter, UK BLOG http://blog.uk.twitter.com/2012/08/the-olympics-on-
twitter.html ("We have seen well over 150 million Tweets about the Olympics over the past 16 days ..." ),
Accessed Date: 12th April, 2018

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These guidelines, especially the encouragement to link social-media platforms to official
websites, suggest that the IOC undoubtedly understands the potential value of social media.
But these guidelines also suggest that this is a one-way street the IOC wishes to exclusively
benefit from the athletes use of social media while preventing them from doing the same.
The current version of Rule 40 indicates that the IOC fears athletes will exploit Twitter
as a personal-marketing tool to the detriment of official sponsors.
Despite this concern, some argue that Rule 40 is an overly zealous rule that is not
sustainable in today’s open-source world. An examination of the plain language of Rule 40,
however, is insufficient to grasp the scope of its applicability.18
SCOPE OF RULE 40:
Traditional Advertising
Rule 40 specifically states that it applies to advertising purposes. The IOC definition
of advertising purposes, however, ventures beyond traditional adverting. In this respect,
traditional advertising is often defined as messages or commercials communicated through
historically established media such as television, radio, outdoor, print, and direct mail.
According to the IOC, advertising includes athlete’s personal use of their social-networking
accounts. This broad scope leads some to suggest that if Rule 40 is not amended to better
serve athletes interests, Rule 40 could eventually backfire on the IOC.
Negative Sentiments
Interestingly, the IOC's approach of protecting official sponsors may result in
negative sentiments toward official sponsors. As one commentator noted, many of the
remarks made about official Olympic sponsors at the London Games were negative,
including criticism of McDonald's "French Fry Monopoly" and the inconvenience associated
with Visa ATMs being the only ones available around the Olympic venues. With such
negative sentiments from athletes and the public swirling, the IOC is in a position to amend
Rule 40 to better serve athletes and comply with the Olympic spirit.19
As previously noted, Rule 40 is intended to protect official Olympic sponsors from
ambush marketing. Official sponsors pay upwards of $60,000,000 to secure their positions at
the Games and in related advertisements. McDonald's, for example, was the only vendor at
the London Games permitted to sell French fries. As one commentator noted, McDonald's

18
Varens, V., Das "olympische" Werbeverbot: eine rechtliche Untersuchung des Werbeverbots nach Bye-law 3
to Rule 40 of the Olympic Charter hinsichtlich dessen Vereinbarkeit mit dem EU-Recht, Zürich, Dike Verlag,
2017.
19
Trova, E., V. Alexandrakis and P. Skouris, Olympic Games of the European Union , Baden-Baden, Nomos,
2011.

17
has such an ironclad sponsorship deal that the fast food ogre insists that none of the other 800
vendors can sell fries despite the fact that good greasy chips have been part of British
gastronomy for over 150 years. This, in part, demonstrates the subservient role that the IOC
often plays to official Olympic sponsors.20
JUDICIAL TRENDS:
San Francisco Arts & Athletics, Inc. v. United States Olympic Committee
In San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, the
USOC and the IOC brought suit against San Francisco Arts& Athletics, Inc. ("SFAA") under
the Amateur Sports Act of 1978 to prevent SFAA's use of the term "Olympics" in the "Gay
Olympic Games. In its defence, SFAA alleged that the USOC enforced its rights under the
Act in a discriminatory manner in violation of the Fifth Amendment. While a Fifth
Amendment argument does not readily apply to the Olympic athlete’s objections to Rule 40,
the court's holding remains significant. In this respect, the court held that SFAA's Fifth
Amendment claim failed because the USOC is not a governmental actor to whom the Fifth
Amendment applies.
In reaching its conclusion, the court first determined that the fundamental inquiry is
whether the USOC is a governmental actor to whom the prohibitions of the Constitution
apply. While the USOC is chartered by Congress, the court held that a corporate charter does
not render the USOC a Government agent.
This conclusion is significant insofar as it limits the scope of actions that may be
successfully brought against the USOC. Unless the USOC acts as a government agent, a
constitutional challenge, such as one under the First Amendment, will likely fail. Rule 40
undoubtedly limits what athletes may say, but as the IOC argues, it ensures the success of the
Games by protecting the official sponsor’s interests. This purpose is constitutionally
permissible. Just as with any sport, some may argue, the athletes must follow all rules as a
prerequisite for the privilege of participating in the Games.
Martin v. International Olympic Committee
A factually distinct but legally pertinent situation also arose in the 1984 Los Angeles
Summer Olympic Games. In Martin v. International Olympic Committee, eighty-two female
long-distance track runners from twenty-seven countries and two runner’s organizations
brought claims under the Fifth and Fourteenth Amendments of the U.S. Constitution as well

20
LONDON ORGANIZING COMMITTEE OF THE OLYMPIC GAMES AND PARALYMPIC GAMES
LTD., RULE 40 GUIDELINES 7 ,http://www.britishhandball.com/wpcontent/uploads/downloads/2012/06/rule-
40- guidelines-branding.pdf., Accessed Date: 14th April, 2018

18
as California’s Unruh Civil Rights Act against the organizers of the 1984 Los Angeles
Summer Olympic Games. The athletes and runners organizations sought a preliminary
injunction to require the Games to include the 5,000 and 10,000 meter track events for
women, which had never been included in the Games. The Martin court faced the challenge
of addressing both state law and constitutional claims. In holding that there was no violation
of California's Unruh Civil Rights Act, the court noted that courts should be wary of applying
a state statute to alter the content of the Olympic Games since they are organized and
conducted under the terms of an international agreement the Olympic Charter. Again, this
holding is significant in so far as it limits the manner in which claims may be brought against
the USOC or the IOC. Martin suggests that, if a remedy is obtainable, it should come from
the IOC.21
AMENDING RULE 40:
As expressly stated in the IOC Social Media Guidelines, the IOC reserves the right to
amend these Guidelines, as it deems appropriate. The time to amend is now. The language of
Rule 40 is undoubtedly broad in scope in that it restricts what athletes may post on their
personal Twitter accounts.
This is not to suggest that the IOC should amend Rule 40 to allow athletes to Tweet
about whatever they so choose during the Games regardless of its appropriateness. Rather,
the IOC should amend Rule 40 to account for the legitimate interests of both the IOC and
Olympic athletes.
To be clear, the IOC has a legitimate interest in prohibiting athletes from appearing in
television and print advertisements for non-official sponsors. While many of the IOC's fears
of ambush marketing and the effect that perpetrators may have on the Games is likely
exaggerated, other companies should not be able to freely capitalize on the goodwill of the
Games. Rule 40, however, overreaches into the athletes personal use of Twitter by preventing
them from so much as posting a picture of a nonofficial sponsor’s shoe. Thus, narrowing the
scope of Rule 40 will serve the interests of both the IOC and athletes. The text of Rule 40
itself would not need to be amended in order to effectuate the change that the athletes desire.
Instead, the IOC should amend the Rule 40 Guidelines to reflect a narrower scope of what
constitutes "advertising purposes" and to delineate appropriate uses of nonofficial- sponsor
references on social media. The Rule 40 Guidelines state that the IOC wants to ensure that
Rule 40 is applied only as necessary to protect the purposes for which it exists. Narrowing the

21
Spaaij, R. and C. Burleson (eds.), The Olympic Movement and the Sport of Peacemaking, London,
Routledge, 2013

19
scope of Rule40 would ensure that it is only being applied as necessary to prevent ambush
marketing.22
Therefore, the IOC should remove the terms "social networking sites" and "blogs"
from the Rule 40 Guidelines under "Advertising Purposes" and instead include them in a
separate section delineating their proper use.23

CONCLUSION:
The IOC should amend Rule 40 to account for both the IOC's and the athletes
legitimate interests. Social media such as Twitter has undoubtedly changed the way fans
connect with the Olympic Games and the athletes themselves. The IOC should amend Rule
40 to encourage, rather than restrict, this connection.
By retaining many of the restrictions currently in place, such as prohibiting
inappropriate or offensive Tweets, an amended version of the Rule 40 Guidelines allowing
athletes to Tweet about their sponsors would better serve the interests of both the IOC and
athletes.
An amended version of the Rule 40 Guidelines that narrows the scope of advertising
purposes will serve both the IOC and the athletes interests by attracting more attention to the
athletes, and thus to the Games themselves. Therefore, amending Rule 40 would not only
benefit the IOC and athletes, it would benefit official Olympic sponsors.
The Olympic athletes could present these arguments to the CAS prior to the Opening
Ceremony of the Games. By demonstrating that the athlete’s interests outweigh those of the
IOC and/or that Rule 40 imposes an undue hardship with respect to their personal use of
social media, athletes may be able to obtain preliminary relief via a stay of the enforcement
of Rule 40.
The athletes’ best chance of permanently changing Rule 40 may lie in demonstrating to
the IOC that permitting athletes to Tweet about their sponsors not only will aid them in
funding their training, but also will result in increased attention to the Games an outcome that
will undoubtedly benefit the IOC, the official Olympic sponsors, and the athletes.

22
Stelitano, A., Le Olimpiadi all'ONU: le Nazioni unite e lo sport: dall'embargo all'Olimpismo, Padova, Cleup,
2012.
23
UNITED STATES OLYMPIC COMMITTEE, 2012 INFORMATION FOR ATHLETES, THEIR
AGENTS, AND NGBS 1, http://www.usatf.org/events/2012/OlympicTrials -TF/athletelnfo/
Rule40 Pamphlet 4.pdf ("Participants who do not comply with Rule 40 may be sanctioned . . . including,
ultimately, disqualification from the Games and/or withdrawal of the Participant's accreditation.")., Accessed
Date: 16th April, 2018

20
 BIBLIOGRAPHY:

 Gauthier, R., The International Olympic Committee, Law, and Accountability , London, New
York, Routledge, Taylor & Francis Group, 2017.
 Rürup, R. (ed.), Selwyn, P.E. (transl.), 1936 : die Olympischen Spiele und der
Nationalsozialismus : eine Dokumentation = 1936 : the Olympic Games and National
Socialism : a documentation, Berlin, Stiftung Topographie des Terrors, 1999.
 Schaus, G.P. and Wenn, S.R., Onward to the Olympics: Historical Perspectives on the
Olympic Games, Waterloo, ON, Wilfrid Laurier University Press, 2007.
 Spaaij, R. and C. Burleson (eds.), The Olympic Movement and the Sport of Peacemaking,
London, Routledge, 2013

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