Brigham Young University professor of statistics Jared Ward finished third in February’s US Olympic Trials Marathon, filling the final spot on the Rio-bound marathon team. The married father of two is almost unknown outside the competitive running community, but has been successful enough in the last year to attract sponsors—Saucony athleticwear and Glukos energy nutrition.
We’re not talking about Peyton Manning-level deals here, but, with his day job, it’s enough to allow Ward to log 120 miles a week in nice gear. Ward continuously acknowledges his sponsors’ support on Twitter, and his flag-draped image is proudly featured in both Saucony and Glukos ads. Ward can tweet thanks and his sponsors can wish him best of luck in Rio all they want, but only until July 27.
From July 27 until the Olympic village closes on August 24, Ward can’t acknowledge his sponsors, and they cannot use his name or image in any way. Those ads saying Congrats Jared! will be taken down. His sponsors can’t reference Ward, or the Olympics, or retweet messages posted by random individuals with Olympic or Ward references. They can’t use words like Rio, Rio de Janeiro, gold, silver, bronze, medal, summer, games, victory, competition, or challenge in their marketing. Or effort. Even if Ward won the Olympic marathon, no one watching at home would know that Saucony and Glukos helped him through all those miles in the off years.
That kind of stinks for his sponsors, and it’s one of the (many) reasons Ward isn’t commanding Peyton Manning-level deals—Olympic athletes who have to go dark at the very moment they’re receiving the most exposure (and giving their sponsors the most exposure) are not a very good return on investment. That’s why athletes and the organizations that support them are pushing back on the International Olympic Committee’s infamous Rule 40.
Olympic organizers are clinging by the tips of their fingers to their Chariots of Fire purist ideals, but of course putting on the Olympics is a very expensive undertaking. The IOC’s commitment to a “clean venue”—no marketing in any Olympic venue, not even from official sponsors—eliminates a significant revenue stream, said Jon Mason, Associate Director of Communications for the US Olympic Committee.
To ensure official Olympic sponsors get value for the big bucks they’ve paid, and to protect the IOC’s intellectual property—the Olympic name, the five rings, etc.—Rule 40 was instituted, extending exclusive use of Olympic symbols, images, and references to official sponsors in the nine days leading up to the Games, and during them. It’s supposed to prevent ambush marketing—bandwagoning by companies who haven’t anted up as official sponsors.
Restrictions like this are hardly unique to the Olympics. The NFL does it with the Super Bowl, Adidas tries to protect their official sponsorship of the Boston Marathon, and Pepsi is all about protecting their turf at the Oscars. But policing Rule 40, or any trademark or intellectual property law, is an Olympic-sized problem. For example, an individual is totally free to tweet, Go for the gold, Jared! Journalists are completely free to write, Ward is lining up for the Olympic Marathon right now. Saucony, his sponsor, could not retweet or share those posts, nor issue any reference to Ward or the Olympics during the blackout period. But Saucony employees are also individuals ... hmmmm.
Jon Mason at USOC said they’ve made some cease-and-desist phone calls to businesses using the Olympic rings illegally, but they’ve never disqualified an athlete for a Rule 40 infraction, nor has it ever been tested in court. “Ambush marketing is kind of self-policing,” he said. “Brands that operate in the sports space are keenly aware of what ambush marketing does in their world.” Continually working the same events, he explained, at some point the ambusher is going to be the ambushee, so there’s motivation to play nice.
While official sponsors—mega-companies like McDonald’s, Coca-Cola, and Proctor & Gamble—make the Games happen (along with host cities who, yikes, go into debt), they don’t generally support the talent that creates the actual Olympic program—the athletes.
Companies like Saucony and Glukos—that support athletes’ day-to-day training, but don’t have pockets deep enough to sponsor the Games themselves—are left on the wrong side of the Rule 40 fence. Non-Olympic partners, as they’re called, are restricted from using any marks, symbols or words that might confer Olympic affiliation to their products during the 29-day blackout period.
“Rule 40 protects the IOC from ambush marketing,” said Peter Carlisle, an agent with Octagon sports management who represents Olympic athletes. “But as I see it, athletes are generating a lot of value for the Games. When you have athletes, past gold medal winners, struggling to raise money—who’s ambushing whom?”
That sentiment sparked the 2012 #WeDemandChange campaign. Members of the Track and Field Athletes Association competing in the London Olympics protested Rule 40’s restrictions on their ability to market themselves during the game, acquire sponsorships, and ultimately, make a living as an athlete. Athletes on TV and social media, during the Olympics, talking about scraping by with a coffee shop job while helping make the IOC boatloads of cash was a PR disaster for Olympic organizers.
Strangely, the USOC’s Mason maintained that the IOC was not influenced by #WeDemandChange—as if listening to athletes was a bad thing, an admission of weakness or that Rule 40 was unfair. He said the IOC has been talking about easing Rule 40 for a long time, that they in fact started the discussion. In fall of 2015, the IOC announced that athletes who had an established relationship with a non-Olympic partner could apply for a waiver allowing them to continue to recognize that relationship, and vice versa, in “non-Olympicized” messages during the blackout period.
Relaxed Rule 40, that waiver system, is not much of an offer said CEO and founder of Oiselle women’s athleticwear, Sally Bergesen. She explained that if a non-Olympic partner, like Oiselle, who sponsors a roster of potential Olympic track athletes, wanted to continue to promote their relationship with athletes during the blackout period, they had to submit their campaign to USOC for approval. If approved, the ads would have to run continuously from March 27 through August 24—five full months. While the ads could feature an athlete (though no track athletes had yet been named to the team in March), they couldn’t make any reference to the Olympics, including that long list of seemingly innocuous words like effort, summer, and challenge. So, a non-Olympic partner who received a waiver would spend a lot of money on a generic ad campaign that appeared during the blackout period, but said nothing about the Olympics.
John Grady, sports law professor at the University of South Carolina, agreed that relaxed Rule 40 offered dubious benefit, especially to the small companies and under-the-radar athletes it was supposed to help. “There’s little impetus to heavily market a lesser known athlete, who may or may not qualify for the team, for five months,” Grady said.
Furthermore, the caveats in relaxed Rule 40 declaw the real-time power of social media, Grady said. For example, an athlete could tweet trackside at the Olympic stadium on August 5 but could not show or say anything about where she was, nor thank her sponsors for helping her get there.
Oiselle nonetheless submitted their campaign to the USOC, including one featuring Oiselle-sponsored two-time Olympian marathoner Kara Goucher. “That one was rejected,” Bergesen said. The company was told to “dilute the value” of Goucher’s Olympic status by burying it in other achievements and reducing the font size on print ads. “The USOC is so concerned we might get some benefit by affiliation, they don’t see that more media activity around the Olympics would benefit the Games as a whole, including their official sponsors,” Bergesen said.
Oiselle eventually opted out of the waiver process so that, like most non-Olympic partners, they can promote their athlete-Oiselle-Olympics connection up until July 27 using any word in the English language. Or, as the IOC probably sees it, ambush marketing.
While Bergesen chafes at “doing back flips to get around” this policy she feels is harmful to athletes and sponsors who invest in them, some see Rule 40 as an unavoidable—and creativity-spurring—aspect of the sports marketing landscape.
One of those pragmatists is Ben Rosario, coach of Northern Arizona Elite, a group of professional, and potentially Olympic, distance runners, sponsored by shoe maker Hoka One One.
“The USOC is doing their job, and we have to do ours,” Rosario said. “If we’ve done a good job of building association with our athletes and keeping our community engaged all year, the blackout period won’t matter.”
He thinks of it as creative rather than ambush marketing. Bearing in mind the list of verboten words and images, Rosario described a possible Rule 40-evading strategy: “Maybe you create a hashtag using the date and time of the athlete’s race, and you use that hashtag to promote the athlete all the way up to July 27. When the blackout starts, the hashtag is all you have to say.”
Rather than getting caught up in Rule 40’s restrictions, Rosario says he’d rather try to change the paradigm that the Olympics is the be-all and end-all for track and field athletes. “We try to promote U.S. Championships, World Marathon Majors, events that happen year round, every year,” he said. “There’s a lot more going on in running than just the Olympics.”
Most of the billions of fans who will watch the Olympics are blissfully unaware of Rule 40, of course. But athletes, their sponsors, and associated businesses have spent four years sharpening their creative marketing skills. One of Rio’s most hotly anticipated contests won’t take place on the track, court, or water, but rather in the media space around Rule 40.
Go out and get some exercise.