The key legal themes surrounding the Winter Olympic Games in PyeongchangAlex Kelham
The Winter Olympic Games has opened in Pyeongchang, and they have already sparked some fascinating legal, commercial and geopolitical issues.
Here's a brief summary of the stories behind the sport.
A Russian affair
It's a shame to focus on doping first, but the lead up to these Games have been dominated by one story - the status of Russian athletes competing at the Games.
The McClaren Report, initiated by the World Anti-Doping Agency in 2016, concluded that Russia had orchestrated institutional doping1 from 2011 to 2015 culminating in their incredible success in Sochi. Having been criticised for taking a soft approach ahead of the 2016 Summer Games, and with the Russian authorities still showing no contrition, the International Olympic Committee (IOC) have been more robust ahead of Pyeongchang. They've banned2 the flying of the Russian flag and insisting that only verified "clean" athletes can compete as "Olympic Athletes from Russia" competing under the Olympic flag. As a result there has been a flurry of appeals to the IOC, Court of Arbitration for Sport (CAS) and the Swiss Courts.3
While a large contingent of "Olympic Athletes from Russia" will be participating, the IOC decided not to invite any "tainted" athletes, including, controversially, 13 athletes who have been cleared by the CAS. In a decision that came right down to the wire, CAS rejected the appeals of 45 Russian athletes who were contesting the IOC’s decision not to invite them.4 The CAS decision concluded that the IOC had the discretion to determine which athletes to invite to participate in the Games, and that the IOC had not acted in a “discriminatory, arbitrary or unfair manner”5 in exercising that discretion. While many athletes and advocates against doping have welcomed this decision, the fallout of this whole saga has had/is having political and commercial (see below) consequences.
For more analysis on the on-going Russian issue and its implications for anti-doping, please see: Why the Russian Olympic doping saga shows the need for a radically different approach to anti-doping in sport.6
A step to reconciliation
A more encouraging story to emerge from the Games is an apparent thawing of relations between North and South Korea. A small team of North Korean athletes, and a larger contingent of performers, have travelled a few miles over the border to the Olympic village, which sits close to the heavily armed border.7 And in an interesting move, which raises geopolitical, sporting and feminist issues, a joint North and South Korean women's ice hockey team will compete in the Games. Does this open the door for other joint teams, brokered for political reasons, but which would call into question the nationalistic basis on which athletes and teams compete in the Olympics?
The IOC has traditionally exercised some flexibility with its recognition of borders that may not strictly be on the map; it has, since 1995, recognised a Palestinian team.8 Similarly, athletes from Northern Ireland have the choice as to whether they want to compete for the Republic of Ireland or Team GB. As for the joint hockey team being a feminist issue, this point was raised by Hayley Wickenheiser who pointed to the fact that no joint men's team had been proposed, which goes against the Olympic value of equality.
A commercial fall out from the Russian doping affair was a request by Bosco, the exclusive supplier of IOC clothing, for IOC officials to refrain from using the Bosco brand at the Games.9 As a Russian company, they didn't feel that they could support the IOC following its banning of the Russian flag from the Games, and therefore Bosco head Mikhail Kusnirovich has asked that IOC officials not wear their previously-delivered kits at the games. Kusnirovich also stated that they would be looking into options for deactivating their rights until the National Olympic Committee of Russia regains its accreditation.
Rule 40 under threat
The rule of the Olympic Charter that prevents Olympic athletes from allowing their name, image and sporting performance to be used for commercial purposes during and for 10 days before the Games first came under significant challenge from athletes in 2012.10 During the London Games, athletes embraced a PR campaign highlighting the rule that many athletes believe unfairly hampers their commercial freedom.
With only relatively minor relaxations implemented before the Rio 2016 Games, a legal challenge is now in play in Germany.11 The German Federal Cartel Office has initiated action against the German Olympic Committee (and indirectly the IOC) on the basis that Rule 40 violates competition law. The matter has not been heard before the courts, so it will be interesting to see if the IOC is more relaxed in the enforcement of Rule 40 in Pyeongchang. One to watch.
Ambushers on the ready
No legal article about an Olympic Games is complete without a mention of ambush marketing. The Winter Games generally inspire less ambush activity than the Summer Games, but a Korean telecoms company running adverts featuring Korean winter athletes and using the slogan "See you in PyeongChang" have already come under fire.12
No doubt there will be more creative examples to emerge during the Games, although with temperatures dropping to minus 20 we doubt we'll be seeing any of the infamous Paddy Power pants, as exposed by Nicklas Bendtner during Euro 2012.
Enjoy the Games!
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- Tags: Anti-Doping | Intellectual Property | International Olympic Committee (IOC) | North Korea | Russia | South Korean | Winter Olympics 2018 | World Anti-Doping Agency (WADA)
- Why the Russian Olympic doping saga shows the need for a radically different approach to anti-doping in sport