Market test on commitments of DOSB and IOC
The Bundeskartellamt is currently conducting an administrative proceeding against the German Olympic Sports Confederation (Deutscher Olympischer Sportbund, DOSB) and the International Olympic Committee (IOC). The Bundeskartellamt suspects that the current application of Rule 40 of the Olympic Charter for athletes and sponsors in Germany restricts competition and that DOSB and IOC are abusing their dominant position. The proceeding was initiated on the basis of a complaint by the Federal Association of the German Sports Goods Industry and in connection with press reports on the last Olympic Games.
Andreas Mundt, President of Bundeskartellamt: “
According to our assessment the rules of DOSB and IOC are too restrictive. The advertising restrictions on athletes and companies can constitute an abuse of the dominant position of DOSB and IOC. Account has to be taken of the fact that the athletes as the performers in the Olympic Games do not benefit directly from the very high advertising revenues generated by the official Olympic sponsors. In response to our concerns about competition DOSB and IOC have proposed amendments to their rules which offer more scope for action. We will now present these commitments to various companies, associations and also athletes for their comments. Nevertheless, the revised DOSB rules can be provisionally used in the run up to the coming Winter Games in Pyeongchang."
According to the IOC Guidelines on bye-law 3 to Rule 40 of the Olympic Charter, no athlete participating in the Olympic Games may allow his or her person, name, picture or sports performances during the Olympic Games - and several days before and after the games – to be used for advertising purposes. This advertising restriction covers all advertising and social media activities and is valid from nine days before the opening ceremony of the games until the third day after the closing ceremony (so-called “frozen period”). The athletes nominated for the Games must sign up to the DOSB and IOC Olympic Charter and comply with it.
In certain cases, an exemption may be granted: According to the DOSB Guidelines ("DOSB Guidelines 2016") on Rule 40, only current promotional activities that began at least three months before the start of the Olympic Games and did not contain well defined Olympic related terms can be approved.
DOSB and IOC offered to loosen the previous restrictions on advertising activities exclusively targeted at Germany by means of the following commitments:
- The standard for advertising measures will be the Olympiaschutzgesetz (Olympic Protection Act) and the case law of the German Federal Court of Justice. The IOC Guidelines on Rule 40 will be, insofar, limited in their application;
- the rules for the approval of applications will be amended. The deadline will be significantly reduced and will not constitute a cut-off period. Additionally, the rules foresee an assumption of approval;
- the notions of “Olympic” and other Olympic related terms will be defined conclusively and in a much narrower way;
- generic advertising, as well as greetings or congratulatory messages from the sponsors to athletes will be also permitted during the "frozen period" under certain conditions;
- according to the proposed commitments, athletes will be able to share or retweet content from the IOC / OCOG / DOSB / Team Germany and also link it with greetings or acknowledgments to the sponsors.
The Bundeskartellamt will carry out a market test on the proposed commitments by means of surveys addressed to associations, athletes and sponsors (especially the sporting goods industry). The changes in the new 2016 DOSB Guidelines are subject to the outcome of the market test and are, therefore, provisional. However, as the revised rules are advantageous and less restrictive for athletes and sponsors and the Winter Games in Pyeongchang in February 2018 are approaching, they shall be used instead of the previous ones.