Sports Sponsorship and Ambush Marketing

 

Sponsorship has become integral to professional sports in the modern era – it is part of what has allowed the continual increase of revenue of clubs like Manchester United, Real Madrid and Barcelona. Corporate sponsorship generates income for clubs and sports governing bodies, whilst for the sponsor there’s the distinct advantage of increased brand awareness through media coverage of the sporting event. Europe’s top five leagues have shown record growth over the past few years; their combined revenue in 2014/15 was €12 billion. This represents 54% of the European football market, whilst the total size of the European football market is set to exceed €25 billion in 2016/17.

Therefore, with so much money at stake, it is important that the sponsorship agreement sets out the rights and obligations of parties in meticulous detail. This includes event title rights, which define how the sponsor is to be identified with relation to the event, an example of which would be the ‘Barclays Premier League’ or ‘The Worthington Cup.’ As well as this, a variety of other rights regarding designations and use of logos and marks will be set out in the agreement.

Crucially for major sponsors, exclusivity will be an important part of the agreement. If other sponsors are gaining equal prominence, then this will reduce or dilute the rights which the sponsor has purchased. Of course, every participant in the commercial aspect will wish to amplify its own revenue – and a balance must be struck between these competing interests. For example, last season Alexis Sanchez had a personal sponsorship with Nike, and wore Nike boots whilst playing in Arsenal’s kit which was sponsored by Puma and Fly Emirates, at the Emirates Stadium in the Barclays Premier League. The game is then broadcast on BT Sport, which in turn is also sponsored by a number of companies. (The Premier League is no longer sponsored by Barclays – however the rest of the sponsorship agreements mentioned above remain the same for the current 2016/17 season).

 

This delicate, carefully contracted balance between sponsors can be upset by ‘ambush marketing’:

A technique in which advertisers work to connect their product with a particular event in the minds of potential customers, without having to pay sponsorship expenses for the event. [1]

Essentially, it is an attempt to take advantage of the goodwill of an event or organisation, and includes unauthorised merchandising, advertising and broadcasting sponsorship. Closely linked with viral marketing, in the age of social media a successful ambush marketing campaign can quickly go viral.

 

The DutchyDress

During the 2010 World Cup match between Denmark and Holland a number of models wearing orange dresses were detained by South African Police. Since FIFA were attempting to strenuously defend the rights of their sponsors by clamping down on ambush marketing, they accused Bavaria of attempting to run a marketing campaign.

 

Whilst this may seem fairly innocuous, prior to the World Cup Bavaria had ensured that the dress would become synonymous with football and their brand. Sylvie van der Vaart, wife of Dutch National Team player Rafael van der Vaart modelled in it. In this way, this ambush marketing scheme was meticulously planned. Despite having no large logo or branding the DutchyDress and the spectacle around it quickly went viral.

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Sylvie van der Vaart modeling the dress

 

FIFA had taken steps prior to the World Cup by ensuring that South Africa passed legislation that criminalised ambush marketing. Consequently, the models were facing charges of contravening s15A Merchandise Marks Act (as inserted by s2 of Act 61 of 2002)as well as some sections of the 2010 FIFA World Cup South Africa Special Measures Regulations Act 2006.

Eventually FIFA and Bavaria came to an agreement that FIFA would drop all claims as long as Bavaria agreed to respect FIFA’s commercial program until the end of 2022.  The women who were arrested were also released and not prosecuted further.

 

Other Notable Examples of Ambush Marketing

  • 1992 Olympics, Barcelona: Michael Jordan uses the American Flag to cover up the official sponsor Reebok’s logo. Jordan was the face of Nike at the time.
  • 1996 Olympics, Atlanta: Linford Christie wears Puma contact lenses to a press conference, Reebok was the official sponsor at the time.
  • 2002, Boston Marathon: Adidas was the official sponsor, but Nike had not only bought up a lot of advertising space near the finish line, they also spray painted runners with Nike swooshes when they crossed the finish line.
  • 2006 World Cup, Germany: Dutch fans are made to remove Bavaria-branded lederhosen before entering the stadium as the official sponsor was Budweiser.
  • 2012 Olympics, London: Nike launches an ad campaign based on ordinary athletes in ‘London’ around the world, including Nigeria, Canada and Jamaica. Adidas was the official sponsor of the Olympics but the Nike ad was a viral success.
  • UEFA Euro 2012, Poland/Ukraine: Nicklas Bendtner flashes the waistband of his underwear during a goal celebration, which was emblazoned with the words ‘Paddy Power’. Bendtner was fined £80,000 and banned for one match, Paddy Power paid his fine.
  • 2016 Olympics, Rio de Janiero: following the IOC’s relaxation of Rule 40 (lifting the marketing blackout on companies who sponsor athletes and not the event), Under Armour took advantage of their association with Michael Phelps and hired a series of outdoor gyms on a 50-mile stretch of beach.

lynford_1658799i   Soccer Euro 2012 Denmark Bendtner Underwear   tumblr_inline_oajgeqmwah1uoo7ry_1280

(L-R: Christie with Puma contact lenses, Bendtner with Paddy Power underwear, Jordan using the American flag to cover up Reebok)

 

The Age of Social Media

It has often been difficult for event organisers and governing bodies to bring successful legal proceedings against ambush marketers. Rule 40 of the Olympic Charter forbids athletes from participating in marketing for non-official sponsors, starting from 9 days before the opening ceremony until 3 days after the Games’ conclusion. This also includes Olympics-related terms like ‘medal’, ‘gold’, ‘silver’ and ‘bronze’ among others. Given the fact that over the years many companies, most notably Nike have eschewed official sponsorship to orchestrate ambush marketing campaigns, the IOC relaxed their rules. It was just ironic that when they did, Nike was an official sponsor but Under Armour used their very own ambushing tactics against them.

Attempts to discourage or otherwise prosecute companies for ambush marketing often backfires. Often the media spectacle around the event organiser’s response to the ambush lends even more publicity to the brand. With the advent of social media, content that is ‘cooler’ or ‘edgier’ than that created by official sponsors will often go viral. During the London 2012 Olympics, Paddy Power ran an ad campaign based on being ‘official sponsors’.

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Source: Tim Anderson

The London Organising Committee attempted to have the campaign taken down, but eventually backed down right before Paddy Power were set to seek a court order. Paddy Power were the official sponsors of an egg and spoon race in London, France.

From a legal perspective, it’s increasingly difficult to anticipate how an event will be ambushed, therefore including preventative clauses in a sponsorship contract can be effectively useless. FIFA found this out the hard way, after complaining about ads run by South African budget airline Kulula, which described them as the ‘unofficial national carrier of the you-know-what’. The ads featured World Cup related images such as balls, vuvuzelas and national flags. Whilst the original ads were pulled, the company followed up by replacing the images in the first ad with similarly shaped items. They changed the tagline to there being other reasons to travel to South Africa ‘than just for that thing we wouldn’t dare mention.’ They also announced that they would be giving away free flights to anyone named Sepp Blatter (the same name as the FIFA president at the time). FIFA’s successful complaints and South African law had no impact on Kulula’s association with the event.

It is not inconceivable that brands will continue to seek to monopolise on the fact that social media is the de facto news outlet for many of the younger generation. It is easy to create content, or even to tweet a witty reply from an official account that leads to a host of ‘retweets’ and viral success. In that respect, ambush marketing has gained a new front from just physically associating themselves with an event to doing it on social media.

 

References:

  • P. Carey and R. Verow, Media and Entertainment Law (College of Law Publishing, 2005)

 

 

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Social Media and Sagna

Social media is often thought to be an important medium for self-expression. As it turns out, an instagram comment is enough to get a footballer in trouble with the FA.

Manchester City defender, Bacary Sagna, has found himself being subject to a fine by the FA this week after posting a picture on instagram and captioning it “10 against 12… but still fighting and winning as a team #youfreetothinkwhatyouwant.”

Sagna’s comments came after Manchester City’s 2-1 win against Burnley, at home in which the referee had sent off Fernandinho. The implication being that the referee had shown bias against Manchester City.

The club then sought to appeal the £40,000 fine, but were ultimately unsuccessful.

International Football and Politics; A Tangled Web

Football, like almost all other aspects of life, is intrinsically linked with politics. A stadium is just an extension of ordinary life, and there is no reason why football (or any other sport for that matter) should exclude itself from political discourse. In fact, the existence of the nation-state is political; whether it is being represented in the uniform of the military or the uniform of a national football team.

In recent weeks, the issue of whether political symbols should be ‘allowed’ in football has dominated headlines. This, in response to the fact that FIFA denied the request of the English and Scottish FA to wear poppies on Armstice day, when they are both scheduled to play. For those of us who follow international football, this is hardly the first time FIFA has refused permission for England to wear a poppy (and then gone on to reach a compromise). FIFA’s Laws of the Game, under Rule 4, govern what the player’s equipment should be and state that ‘basic compulsory equipment must not have any political, religious or personal slogans, statements or images.’

FIFA isn’t football’s only governing body that subscribes to this rule, Article 16 of UEFA’s regulations also requires clubs to not allow ‘messages that are of a political, ideological, religious, offensive or provocative nature’ to be displayed during a match. In the past, for European football this has extended beyond just symbols on team shirts to include flags being flown by fans in the stadium. FC Barcelona were fined in Champions League matches for fans flying esteladas (a flag that is the symbol of Catalan independence), and Celtic have been fined for flying the Palestinian flag.

Is the poppy a political symbol? People in Britain all seem to have varying different beliefs when it comes to what it symbolises; for some it is a reminder of innocent lives lost in war, for others it is a crude symbol of British militarism. In the end, FIFA hasn’t set out definitions of the terms above and therefore, it is a highly subjective test as to whether something is considered ‘political’. There is a broader issue here than simply poppies, however. Why should we repress political expression in football or any other sport? What makes it a politics-free arena? After all, footballers and football fans generally form part of the electorate and are as affected by political decisions as anyone else. Archie Bland argues that ‘saying that sport and politics don’t mix is not an expression of neutrality: it is an expression of tacit support for the status quo.’

Football, particularly, lends itself well to tribalism just like politics. Whole communities centre themselves around the sport, it is as important to them as their jobs and possibly their families as well. Some people may choose to leave behind all aspects and ‘focus on the football’ but all matters in life are intersectional, sport included. Issues from the political arena are sometimes greatly exaggerated in football; racism is evident to see both in the insults and harassment black players receive from opposing fans and in the fact that at managerial level and above, football lacks minority representation. On the other hand, no other profession affords such accelerated upward social mobility and highlights class issues as well as football. Corruption, a major political issue, has recently been shown to exist in football as well in the FIFA scandal. Inevitably then, it becomes almost impossible to disentangle football from politics.

On the other hand, allowing a floodgate of political, religious or other symbols is not likely to be a sensible move. State-sponsored inflammatory symbols should not be allowed on the football pitch but this has to be balanced alongside the right to freedom of political expression. There is an entirely separate debate to be had regarding whether the poppy loses any meaning as it becomes increasingly mandatory for public figures. In this case, I would argue that once again, the issue of the poppy has been blown way out of proportion. It is not a universal symbol, as illustrated by the fact that Chinese officials asked David Cameron and his colleagues to remove the poppy because it served as a reminder of the Opium Wars. Perhaps FIFA and UEFA need to clarify their respective rules, which are entirely subjective as they stand.

More than Life and Death?

Bill Shankly put it best when he said:

“Some people believe football is a matter of life and death, I am very disappointed with that attitude. I can assure you it is much, much more important than that.”

It may seem as though this is hyperbole, an obvious exaggeration of what most people would consider a mere recreational activity. But football is transcendent, it has moments which are greater than you or I, a power to overwhelm us and transport us beyond artificial barriers of class, race and sex.
We may be insignificant in the grand scheme of things. Then again, maybe the moment of unadulterated joy at a last-minute goal, of turning to the stranger next to you and hugging in excitement and disbelief, maybe that is a moment that stretches on for eternity. Maybe that moment is enough. The way your breath catches in your throat when Messi begins dribbling past one, two, three defenders and then nutmegs the final one. The moment your heart stops as the goalkeeper steels himself, ready for the penalty kick. If we are insignificant, if there is no purpose to life except existence, aren’t these tiny moments that make us feel raw emotion all the more precious and worth holding on to?

 

SPANISH TV RIGHTS – FAIR AT LAST?

The Premier League has many faults, but it remains one of the richest leagues in world football. Part of the attraction of foreign players to mid-table English clubs is the exposure and the money offered; a report by Deloitte into the richest clubs in the game shows that whilst not topping the list, all 20 EPL clubs were part of the top 40 revenue generating clubs globally.

man-united-epl-2014

Needless to say, football broadcasting is a lucrative industry, and the most recent TV deal for the EPL was a record £5.1 billion venture with BT Sport and Sky Sports to show live games between 2016 and 2019. 95% of this figure will go directly to the clubs, split equally between 20 of them. Conversely, the situation is completely different in Spain. The two titans, FC Barcelona and Real Madrid have a much, much greater share of TV revenue than all the other clubs combined. 2013/2014 season’s La Liga Champions, Atlético Madrid, received 41.7 million in TV revenue, whilst Cardiff City, the team that finished last in the Premier League, received 83.2 million euros. This is because media rights are negotiated separately between each club and the TV operators, leading to the massive inequity of revenue.

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Arguably, the current distribution of revenue was unfair to any club that isn’t Barcelona or Madrid. It was also argued that this meant that smaller teams were less competitive and as a result, La Liga is a “two horse race”. The latter part of that statement is patently not true if one watches La Liga, but the former may have its merits. Thus, under the new rules brought in by the Spanish Government, 90% of revenue will go to all 20 clubs, with half of that equally shared, and the other half split according to other criteria. The remaining 10% is to be allocated to second division, ‘Segunda’, clubs.

The clubs will still continue to own their media rights, but ‘are obliged to assign the right to commercialize them to the organizing bodies of the competition‘ – i.e. LFP and RFEF. No longer will Madrid and Barcelona be able to negotiate a TV rights deal on their own, that massively benefits them. However, the fact that half of the money allocated to La Liga is split based on criteria such as performance and size of the club means that there is still likely to be relative imbalance in income. Still, it is likely that this joint sale will mean a much better, more lucrative deal overall, and this can only be beneficial to clubs whose TV revenue income is likely to increase.

 

 

Conflict to Cooperation: The EU & UEFA

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Source

Almost 20 years ago, the President of UEFA, Lennart Johansson, claimed that the European Union was trying to destroy club football; this, in response to the controversial Bosman ruling.

Now retired, Jean-Marc Bosman was only 26 in 1990 when his contract with RFC Liege expired. He wanted a transfer to Dunkerque but the French club refused to pay the transfer fee of around 18m. Bosman took his case to the Court of Justice of the EU and the landmark ruling set an important precedent – that a footballer was entitled to a free transfer at the end of his contract, provided the transfer was within the EU. The aftermath of the Bosman ruling was brutal, with Johansson warning that “the process will create a mess.”

When the Meca-Medina ruling initially came out, establishing the primacy of EU law over sports federations, UEFA stated that “without question, the final judgment is unsatisfactory”, suggesting that the EU had opened floodgates to cases about the amplified ‘disproportionate’ effect of sports rules.

190962424L-R: Michel Platini, José Manuel Barroso, Androulla Vassiliou (source)

Surprisingly enough however, UEFA and the EU signed a three year “cooperation agreement” (found here) last month, aimed at structured cooperation in key policy areas. Negotiated mainly in secret, it is one of the final acts of Jose Manuel Barroso as President of the European Commission, whilst Michel Platini’s second four-year term as President of UEFA will end next year. The areas of cooperation between the two organisations include: corruption, match fixing, financial instability, doping, violence and discrimination.

These are clearly issues that pose a significant threat to football today. But it is important to actually look at the consequences of this agreement. One would assume that it would grant some sort of power to the EU to impose governance standards. On the contrary, it seems that the Commission concedes substantial political points to UEFA, whilst only securing the promise of UEFA’s collaboration in the European Week of Sport.

The fact that this agreement is actually a decision means that according to Article 288 TFEU, it is “binding in its entirety” – in theory it is capable of giving rights to UEFA, but the agreement itself states that it “does not create rights or obligations”. The agreement does however give a pass to the Financial Fair Play (FFP) regulations, which are incompatible with EU competition law (specifically, Article 101 TFEU – further discussion on the topic found here), by stating that FFP contributes to the “sustainable development” of sport in Europe. It also in a way legitimises the Court of Arbitration for Sport (CAS), in article 2.14 of the agreement, which states that “arbitration is an important voluntary tool for settling disputes in sport”. The CAS is not actually a court of law, and its legitimacy derives from the voluntary nature of arbitration – but is it really the most appropriate place for the protection of fundamental rights?

Was it necessary for the EU to negotiate this agreement? In essence it is nothing more than a political farce. UEFA is not a representative body – there is no real institutional voice for clubs, fans and players. Surely it would be more beneficial for UEFA to negotiate agreements with organisations such as FIFPro, the representative organisation for professional players, especially if the aim is to protect the fundamental rights of athletes. At the very least the Commission should have ensured that it had some kind of a say in the UEFA policies which may be in conflict with EU law. It seems to me that this whole agreement was wholly unnecessary and only serves to undermine the primacy of EU law that Meca-Medina established.

QATAR 2022: A Disaster in the Making?

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Philippe Desmazes: AFP Photo

In 2010, Sepp Blatter, the president of FIFA, pulled a card out of an envelope with ‘QATAR’ written in bold letters – announcing the small, oil-rich country as the host of the 2022 World Cup. At the time, most people had no idea to the true extent of the controversy that lay in wait. Corruption allegations, logistical impossibilities, human rights abuses…the future of the World Cup was, and remains, uncertain at best.

 

Brazil 2014 obviously came with its own controversies – it was the ridiculous expense of the World Cup amidst the high poverty rate which led to massive protests on the streets of Brazil. It’s also important to note that FIFA and its corporate partners are exempt from tax in the host country. So aside from the millions of dollars Brazil spent on stadiums, these exemptions amounted to an estimated loss of almost $248.7 million dollars. Of course, many people argue that hosting the World Cup gives an immense boost to a country’s economy in terms of tourists coming in and spending their cash. Still, it is not a trifling amount of money to be lost.

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Brazilians protesting before the start of the World Cup. Source: InternetJelly

Qatar comes with its fair share of problems, the least of which are the summer temperatures, which can average above 40°C. At the moment there are two proposed solutions – one of which, championed by Sepp Blatter, is to hold the tournament in the winter, disrupting the major European leagues as well as the Winter Olympics. It is perhaps one of the most ludicrous of all ideas tossed out there, alongside the proposition that Qatar could have air conditioning in all of its stadiums. Another proposal, by a senior FIFA official is to delay official kick-off times, so that matches would finish in the middle of the night. Truly, these are the ingenious ideas of the crème de la crème of football’s governing body.

What is most baffling about this whole ordeal is that surely these facts should have occurred to FIFA before Qatar was selected as the winning bid? It is not as though they have just materialised; these are existing, well-known facts. The summer temperatures in the oil-rich Middle Eastern country are unbearable. Dr. Vincent Gouttebarge explains succinctly the adverse effects of hot conditions on players in an article on FIFPro.  Heat exhaustion is a serious problem, and whilst measures such as frequent water breaks have been suggested, the point remains that unless Qatar’s bid had included viable ways to combat logistical problems such as this, it never should have been successful. Air conditioning in all the stadiums is not a viable solution, by the way.

Worse still, however, are the human rights abuses. Out of the roughly two million residents of Qatar, only around 10% are nationals. There is a large and growing migrant population, whose rights are not adequately protected by Qatari law. The ‘kafala’ system – where a migrant worker’s legal residence is tied to their sponsor – is a breeding ground for abuse. Their sponsor becomes their jailer; they’re barred from changing jobs, prohibited from unionising and usually have their passport taken away. Perhaps the most pertinent example of this is the case of Zahir Belounis, a French footballer trapped in Qatar for almost two years due to a dispute with his club.

645321082Zahir Belounis, speaking to the media. Source: BBC

Whilst Qatar is not a party to many international treaties, including the Universal Declaration on Human Rights, there is no question that the current state of the law in the country is in serious breach of fundamental human rights.

Qatar is, however, a signatory to the International Convention on the Protection of the Rights of All Migrant Workers – the primary objective of which is to protect migrant’s human rights. Article 8 provides the right to leave the State, which migrant workers in Qatar don’t have if they need the approval of their employers to exit the country. The right to be free of degrading treatment is contained in Article 10, and the right to not be subjected to forced labour is in Article 11. Some of the living conditions of migrant workers in Qatar are deplorable, there is no question as to the fact that they are degrading.

425865294Living conditions of migrant workers in Qatar. Source: Al Jazeera

Those of us who are fans of the beautiful game have to consider the price we’re willing to pay. We have reached a point where the level of corruption has become intolerable, and surely we want to have a better impact on the world than this? Football can be something that unites people, that brings joy to people, it is not something that should cause this much pain and suffering. I know that I don’t want to be associated with a World Cup in a country with such a horrific track record of human rights abuses. It isn’t likely that FIFA would change the venue as this would be admitting defeat – absolutely unacceptable for an organisation that will take any measures necessary to avoid tarnishing its reputation. The proposed solutions may be ludicrous, but incredulously enough are the most viable options, for lack of a better alternative.

It remains to be seen how FIFA will address these issues, if they will at all.