Does IOC Rule 40 Violate the First Amendment?
When we think of companies that try to steal the show with slick advertising, or back-door promotion tactics to avoid exorbitant advertising costs, Nike probably isn't the first that comes to mind. After all, Nike has a $2.5 billion annual advertising budget. But in the case of the London 2012 Olympic Games, Nike did exactly that, and the best part about it (if you're a Nike fan) is that nobody even realized it. As I'm sure was the case with most people who watched any track & field coverage during the summer Olympics, I was practically blinded by the fluorescent green shoes worn by more than 400 Olympians, and nearly half of all medal winners. So it never occurred to me that Nike wasn't an official sponsor of the Games; not until I read this piece by NBC News Journalist Bill Briggs (@writerdude) just yesterday.
Apparently it wasn't Nike, but rival brand adidas that was the official shoe sponsor of the the 2012 Olympic Games. According to Briggs' story, adidas paid $155 million for that right. Why is that a big deal? Aside from the fact that Nike's Volt sneakers literally stole the show, they did so in spite of an IOC (International Olympic Committee) rule that substantially regulates advertising, and outright prohibits athlete endorsements from July 18 through August 15, 2012:
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 stated purpose of Rule 40 is "to protect against ambush marketing; prevent unauthorised commercialisation of the Games." On the one hand the IOC claims that the rule is necessary to protect the integrity of amateurism, but on the other they're saying that commercialism is okay, so long as it's "authorised" (translation = so long as the IOC is getting a piece of the pie).
All that back-story sets up my question of whether the IOC's prohibition on advertising violates the First Amendment. First off, let me explain how this situation differs from the NFL that prohibits players from wearing anything other than Reebok apparel (Reebok being the official outfitter of the NFL). Without getting too deep into employment law, employers can require employees to wear uniforms. Olympic athletes are not employees of the International Olympic Committee, The London Organising Committee of the Olympic Games and Paralympic Games Limited (LOCOG), nor the British Olympic Association (BOA). But wait, just last week I preached that the First Amendment only applies to the government—yes, but it also applies to entities acting in a similar capacity, or serving a governmental purpose (i.e. "state actors"). It's hard to argue that the IOC doesn't function as a governmental body.
So how can the IOC get away with restricting the free speech of any athlete who competes in its Games? There are a couple reasons or possibilities. First, I don't know that anyone has followed through with court action to challenge the IOC's rule; Second, I'm not sure whether our Article 3 courts would hold an international governing body accountable for infringing the U.S. Constitution. In case you're wondering, the USOC (United States Olympic Committee) is not a subsidiary of the IOC. According to the Guardian, LOCOG was considering taking legal action against Nike for its "Find Your Greatness" campaign, but ultimately decided against it. I wouldn't be surprised if somebody in the IOC legal department put the kibosh on that idea, being concerned that if a court found the rule to be unenforceable, it could jeopardize future sponsorship revenue.
I won't be surprised if Rule 40 fades away in future Games. The Times They Are a-Changin'. Even the IOC recognizes the fact that although, historically, the rule was intended to ensure that amateur athletes maintain their amateur status, the Games have "moved on."
Read: Bill Briggs, Nike takes marketing gold with neon-yellow shoes
Earlier: Thou Shalt Know They First Amendment