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