On February 25, 2019, the FCO concluded its abuse of dominance investigation against the German National Olympic Committee (Deutscher Olympischer Sportbund, “DOSB”) and the International Olympic Committee (“IOC”) with a commitment decision. The FCO had launched its investigation in 2017, following a complaint by the German Association of the Sporting Goods Industry (Bundesverband der Sportartikel-Industrie). The investigation focused on the application of Rule 40 of the Olympic Charter (“Rule 40”) in Germany, which restrained advertising opportunities for athletes and their individual sponsors. Other interested third parties, such as individual athletes and the Association of German Athletes (Athleten Deutschland e.V.), intervened in the proceedings.
Rule 40 prevents in particular athletes, but also coaches, trainers and officials participating in the Olympic Games from using their person, name, image or athletic performances during the so-called “frozen period” without the IOC’s prior approval. The IOC relaxed the restrictions in the run-up to the 2016 Olympic Games in Rio de Janeiro and provided athletes with the option to engage in “generic” advertising campaigns during the frozen period. For national campaigns featuring German athletes, this option was subject to the DOSB’s permission and several restrictions under the 2016 edition of the DOSB Rule 40 Guidelines (“2016 Guidelines”). German athletes and their (potential) sponsors considered the 2016 Guidelines to be unclear and too restrictive. After the FCO had initiated its investigation in 2017, advertising restrictions for German athletes were further relaxed in a revised edition of the guidelines for the 2018 Olympic Games in PyeongChang (“2018 Guidelines”). The FCO market tested the 2018 Guidelines. Following discussions with a large number of athletes, (potential) sponsors and other market participants, the FCO proposed further amendments which were implemented in the most recent version of the Guidelines (“New Guidelines”), and which form the basis for the FCO’s commitment decision.
As the FCO’s investigation concluded with the IOC’s and DOSB’s commitments, the FCO did not reach any final conclusions on the legal assessment. The FCO formed the preliminary view that the IOC and DOSB – as part of the Olympic Movement – enjoy a dominant position on the global market for the organization and marketing of the Olympic Games. Furthermore, it was held that the restrictions of the athletes’ advertising activities during the frozen period were so far-reaching that they could amount to an abuse of market power.
A key question in the FCO’s preliminary assessment was whether the restrictions of athletes’ advertising activities could be justified in accordance with European Court of Justice (“CJEU”) case law on sporting rules. Under this case law, sporting rules affecting an athlete’s economic activity can be justified if (i) the rule pursues a legitimate objective relating to the organization and proper conduct of competitive sport; (ii) its restrictive effects are inherent in the pursuit of this objective; and (iii) the restriction does not go beyond what is necessary to achieve this objective (i.e., it is proportionate).
The FCO acknowledged that IOC and DOSB pursued the legitimate objective of preventing ambush marketing (i.e., advertising by non- Olympic sponsors with Olympic athletes to profit from an association with the Olympic Games without making a financial contribution to the Olympic Games). It found that this objective helped to protect the exclusive rights of the IOC’s, the National Olympic Committees’, and the Organising Committees for the Olympic Games’ official sponsors, as well as the financial stability of the Olympic Movement to ensure a regular staging of the Olympic Games as a unique and global sporting event.
In its preliminary analysis, the FCO found that the regulations on trademark, copyright, or competition law, and the German Act on the Protection of the Olympic Emblem and the Olympic Names (Olympiaschutzgesetz) sufficiently safeguard the legitimate objective of preventing ambush marketing. The FCO, however, formed the preliminary view that the 2016 Guidelines’ advertising restrictions that, inter alia, did not allow the use of terms such as “games”, “gold”, “silver”, and “bronze” or any use of photos from present or past Olympic Games were too strict.
The New Guidelines include, inter alia, the following key changes:
Athletes no longer need to obtain permission to implement a national advertising campaign (that complies with the New Guidelines) with an individual sponsor during the frozen period.
Athletes may – under certain conditions – receive greetings or congratulatory messages from their sponsors and may endorse their sponsors via social media.
The list of Olympic-related terms that athletes and their own sponsors may not use during the frozen period was reduced (and no longer includes, inter alia, the terms “games”, “gold”, “silver”, and “bronze”). The list is now exhaustive.
The athletes’ sponsors can use competition and non-competition photos of athletes taken at the Olympic Games in their advertisements, if the campaign complies with the New Guidelines and, inter alia, does not feature any inadmissible terms or symbols.
Athletes may use their social media accounts for advertising purposes, subject to the conditions set out in the New Guidelines.
Violations of Rule 40 and the New Guidelines can lead to financial penalties, but not to sport-related sanctions (i.e., exclusion, bans, stripping of medals, etc.). For disputes relating to Rule 40 and the New Guidelines, recourse is now available with the German civil courts instead of the Court of Arbitration for Sports (“CAS”).
The New Guidelines apply to advertising by German athletes and their sponsors until the end of the 2026 Olympic Games. However, they are restricted to advertising activities that target Germany, Switzerland and Austria, and do not apply to international advertising campaigns. International advertising campaigns are to be assessed by the IOC in accordance with the respective IOC Rule 40 Guidelines.
The New Guidelines considerably enhance the advertising opportunities of athletes and their sponsors during the Olympic Games. They further provide better opportunities for athletes to pursue their economic interests, but also safeguard the IOC’s and DOSB’s legitimate objectives to combat ambush marketing and prevent free riding on the goodwill of the Olympic Games and the Olympic Movement. In this case, the particularities of the applicable German legal framework, including national legislation and case law on the protection of Olympic terms and symbols, led to a specific distinction between illegal ambush marketing and legal “generic” marketing. The scope of the New Guidelines is, therefore, rightly confined to members of Team Germany and German advertising campaigns. Nonetheless, the FCO liaised with the European Commission during its proceedings, and it remains to be seen whether the decision will trigger reactions on a wider pan-European, or even global, scale.
 FCO Press Release, “German Athletes and their sponsors obtain further advertising opportunities during the Olympic Games following Bundeskartellamt action – IOC and DOSB undertake to change the advertising guidelines”, February 27, 2019, available in English here.
 The frozen period starts nine days before the Olympic games and lasts until three days after the closing ceremony.
 Meca-Medina and Majcen v Commission (Case C-519/04 P) ECLI:EU:C:2006:492, para. 42, available here; also International Skating Union’s Eligibility Rules (Case AT.40208), Commission decision of December 8, 2017, para. 138, available here.
 According to Olympia-Rabatt (I ZR 131/13), FCJ decision of May 15, 2014, an individual advertising during the frozen period may still not be permitted in extraordinary and exceptional cases. This is the case if, due to other features of the advertising measure, the latter (i) creates a risk of confusion, including the danger of creating an association with the Olympic Games or the Olympic Movement (i.e., a consumer who sees the specific advertisement perceives a commercial or institutional connection between the sponsor on the one hand, and the DOSB or the IOC on the other), or (ii) unduly exploits/tarnishes the reputation of the Olympic Games or of the Olympic Movement (this is to be assumed if an image transfer occurs that can be attributed to specific circumstances). The aforementioned decision is available in German only here.
 However, the DOSB recommends a submission of the advertising campaign for review, in order to ensure that the advertising campaign meets the admissibility criteria set out in the New Guidelines.