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The Olympics, transnational law and legal transplants: the International Olympic Committee, ambush marketing and ticket touting

Published online by Cambridge University Press:  02 January 2018

Mark James  and
Guy Osborn
Mark James*
Affiliation:
Manchester Metropolitan University
Guy Osborn*
Affiliation:
University of Westminster
*
Mark James, Manchester Law School, Manchester Metropolitan University, Lower Ormond Street, Manchester, M15 6HN, UK. Email:[email protected] (formerly Northumbria Law School, Northumbria University). Guy Osborn, Law School, University of Westminster, 4 Little Titchfield Street, London W1W 7BY, UK. Email: [email protected]
Mark James, Manchester Law School, Manchester Metropolitan University, Lower Ormond Street, Manchester, M15 6HN, UK. Email:[email protected] (formerly Northumbria Law School, Northumbria University). Guy Osborn, Law School, University of Westminster, 4 Little Titchfield Street, London W1W 7BY, UK. Email: [email protected]
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Abstract

This paper concerns the origination, development and emergence of what might be termed ‘Olympic law’. This has an impact across borders and with transnational effect. It examines the unique process of creation of these laws, laws created by a national legislature to satisfy the commercial demands of a private body, the International Olympic Committee (IOC). It begins by critically locating the IOC and Olympic law and examining Olympic law as a transnational force. Using two case studies, those of ambush marketing and ticket touting, it demonstrates how private entities can be the drivers of specific, self-interested legislation when operating as a transnational organisation from within the global administrative space and notes the potential dangers of such legal transplants.

Type
Research Article
Information
Legal Studies , Volume 36 , Issue 1 , March 2016 , pp. 93 - 110
Copyright
Copyright © Society of Legal Scholars 2016

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References

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8. See in particular Lord Davies of Oldham, HL Deb, 11 January 2006, c249 and the general House of Commons debate at HC Deb, col 208, 21 March 2006, where the scope of, but not the need for, these provisions is discussed. The need is attributed solely to the demands of the IOC as defined in the Host City Contract.

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24. The IOC also has observer status at the United Nations, further evidence of its accumulation of state-like trappings. See further IOC ‘IOC becomes UN observer’ 19 October 2009; available at

25. M Finnemore and K Sikkink ‘International norm dynamics and political change’ (1998) 52(4) Int'l Org 887. As Zumbassen notes, transnational law is constantly changing and evolving, and ‘must be seen in the context of a vibrant interdisciplinary discourse about the status and role of law in an increasingly inchoate, globe-spanning web of regulatory regimes, actors, norms and processes’; above n 4, p 899.

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28. These rights are incredibly valuable. In February 2014, Panasonic renewed its sponsorship of the IOC at a cost of US$50 million per year for the period 2017–2024; see http://www.sportsbusinessdaily.com/SB-Blogs/On-The-Ground/2014/02/SochiSiteTOPprice.aspx (accessed 16 June 2014).

29. Herguner, above n 16.

30. Clauses 40–42 Host City Contract; available at www.gamesmonitor.org.uk/files/Host%20City%20Contract.pdf (accessed 6 February 2015).

31. Above n 15.

32. Rule 61 Olympic Charter (2013), above n 14, and further M James and G Osborn ‘The sources and interpretation of Olympic law’ (2012) 12(2) Legal Info Mgmt 80.

33. Following a Freedom of Information request to the Greater London Authority, all 27 Technical Manuals relating to the London 2012 Games were made available at http://www.gamesmonitor.org.uk/node/935 (accessed 16 June 2014).

34. R Cotterell ‘What is transnational law?’ (2012) 37 Law & Soc Inquiry 500.

35. Scott, C, Cafaggi, F and Senden, L ‘The conceptual and constitutional challenge of transnational private regulation’ (2011) 38(1) J L Soc'y 1.Google Scholar

36. See T Davis ‘What is sports law?’ (2011) 11 Marq Sports L Rev 211, M Beloff ‘Is there a lex sportiva?’[2005] Int'l Sports L Rev 49.

37. R Siekmann ‘What is sports law? Lex sportiva and lex ludica: a reassessment of content and terminology’ (2011) 3/4 Int'l Sports L J 3–13; and for a collection of essays on this topic, R Siekmann and J Soel (eds) Lex sportiva: What is Sports Law? (The Hague: TMC Asser Press, 2012).

38. K Foster ‘Is there a global sports law?’ (2003) 2(1) Ent L 1.

39. Foster, above n 4.

40. Duval, above n 4, at 834.

41. Foster, above n 4, at 45.

42. See in particular the extended discussions in Siekmann and Soel, above n 37.

43. R Siekmann ‘What is sports law? A reassessment of content and terminology’ in Siekmann and Soel, above n 37, pp 359–391; and R Parrish ‘Lex sportiva and EU sports law’ (2012) 37(6) Eur L Rev 716–733.

44. Latty, above n 3 and Siekmann, above n 37.

45. For example, complex sporting-legal issues are often heard before the Court of Arbitration for Sport instead of domestic courts, including the combined employment law and free movement cases of Wigan Athletic FC v Heart of Midlothian CAS 2007/A/1298, Heart of Midlothian v Webster & Wigan Athletic FC CAS 2007/A/1299 and Webster v Heart of Midlothian CAS 2007/A/1300; available at http://jurisprudence.tas-cas.org/sites/CaseLaw/Shared%20Documents/1298,%201299,%201300.pdf (accessed 6 February 2015).

46. Siekmann, above n 43; Beloff, above n 36; and K Foster ‘Lex sportiva: transnational law in action’ in Siekmann and Soel, above n 37, pp 235–250.

47. Duval, above n 4, at 836.

48. Zumbansen, above n 4, at 900.

49. S Hobe ‘Global challenges to statehood’ (1997) 5(1) Indiana J Global Legal Stud 191–209 at 196.

50. Alvarez, above n 7, at 328.

51. It must be borne in mind that juridification is a nuanced term; there is a voluminous literature, but within the context of sport see Foster, K ‘Juridification in sport’ in S Greenfield and G Osborn (eds) (2006) Readings in Law and Popular Culture (London: Routledge); and S Greenfield, G Osborn and JP Rossouw ‘The juridification of sport: a comparative analysis of children's rugby and cricket in England and South Africa’ 2011 36(1) J Jurid'l Sci 85–104 Google Scholar.

52. On legislative creep, see M James and G Osborn ‘Legislative creep: unpacking lex Olympica’, presentation at Sport and EU Annual Conference, Swiss Graduate School of Public Administration, Lausanne, 21 June 2012 (at 30:30 mins).

53. Klauser, F ‘The exemplification of “fan zones”: mediating mechanisms in the reproduction of best practices for security and branding at Euro 2008’ (2011) 48(15 Google Scholar) Urb Stud 3203 at 3206. Klauser's study focused on the use of transnational security exemplars from Euro 2008 at World Cup 2010, his argument being that they potentially restrict local autonomy and reduce debate.

54. We previously stratified this again as horizontal and vertical legislative creep, but both are instances of a process that can be seen as legal transplant.

55. P Johnson ‘Look out! It's an ambush!’ [2008] Int'l Sports L Rev 24 at 27.

56. Above n 8.

57. Above n 8 and see further the explanatory notes for ss 31 and 33 of the London Act; available at http://www.legislation.gov.uk/ukpga/2006/12/notes/contents (accessed 6 February 2015).

58. The classic underpinning work is perhaps that of A Watson Legal Transplants: An Approach to Comparative Law (Edinburgh: Scottish Academic Press, 1974; 2nd edn Athens, GA: University of Georgia Press,1993); but others include O Khan-Freund ‘On uses and misuses of comparative law’ (1974) 37 Mod L Rev 1; and a very useful typology is presented by J Miller ‘A typology of legal transplants: using sociology, legal history and Argentine examples to explain the transplant process’ (2003) 51 Am J Comp L 839.Google Scholar

59. M Amos ‘Transplanting human rights norms: the case of the United Kingdom's Human Rights Act' (2013) 36 Hum Rts Q 386.

60. Grajzl, P and Dimoitrova-Grajzl, V ‘The choice in the lawmaking process: legal transplants vs indigenous law’ (2009) 5(1) Rev L Econ 615 at 615.Google Scholar

61. R Small ‘Towards a theory of contextual transplants’ (2005) 19 Emory Int'l L Rev 1431 at 1431. See further N Foster ‘Transmigration and transferability of commercial law in a globalised world’ in A Harding and E Örücü (eds) Comparative Law in the 21st Century (The Hague: Kluwer Law International, 2002) pp 55–73.

62. Foster, above n 4, at 45.

63. For a discussion on how the IOC's anti-ambush marketing requirements may contravene the right to free speech, see K de Beer ‘Let the Games begin … ambush marketing and freedom of speech’ (2012) 6(2) Hum Rts & Int'l Legal Discourse 284.

64. Berne Convention for the Protection of Literary and Artistic Works and the Nairobi Treaty on the Protection of the Olympic Symbol. See further R Jacob ‘Trade marks and the Olympic Games throughout the years’ [2001] Eur Intell Prop Rev 1.

65. J Marcus ‘Ambush marketing: an analysis of its threat to sports right holders and the efficacy of past, present and proposed anti-infringement programmes’, [2011] 3–4 Int'l Sports L J 97 at 101.

66. See R Caborn, SC Deb, col 118, 18 October 2005 and M Miller, SC Deb, col 120, 18 October 2005.

67. D Bond, Field Fisher Waterhouse, quoted in B Wilson ‘Canadian lessons on ambush marketing for London 2012’, BBC website, 1 March 2010; available at http://news.bbc.co.uk/1/hi/business/8519967.stm (accessed 16 June 2014).

68. There is a wealth of literature on ambush marketing, its definition and examples of its impact. Useful starting points are: J Hoek and P Glendall ‘Ambush marketing: more than just a commercial irritant?’ (2000) 1(2) Ent L 72; James and Osborn, above n 1; and D Ellis, T Scassa and B Seguin ‘Framing ambush marketing as a legal issue: an Olympic perspective’ (2011) 14 Sport Mgmt Rev 297.

69. See below note 78 and, further, Louw, above n 9.

70. For example, Paddy Power's Olympic advert proclaimed that it was sponsoring the largest sporting event in London. This was strictly true, as it was sponsoring the World Egg and Spoon Championships in the French hamlet of London. See further http://www.marketingweek.co.uk/news/paddy-power-olympic-ambush-avoids-ban/4002953.article (accessed 16 June 2014) and http://www.theguardian.com/media/2012/jul/25/paddy-power-action-locog-billboards-campaign (accessed 16 June 2014). On the many small businesses that used the Olympic symbols without permission, see D Segal ‘Brand police are on the prowl for ambush marketers at London Games’ The New York Times 24 July 2012; available at http://www.nytimes.com/2012/07/25/sports/olympics/2012-london-games-brand-police-on-prowl-for-nike-and-other-ambush-marketers.html?pagewanted=all (accessed 16 July 2012).

71. For example, the Oddbins campaign that offered a discount to anyone producing proof that they had bought a product or used the services of each of the main Olympic sponsors’ rivals: see http://www.thedrum.com/news/2012/07/24/pepsi-drinking-nike-wearing-mastercard-using-customers-receive-30-oddbins (accessed 17 September 2015).

72. Rules 40(3) and 50 Olympic Charter (2013), above n 15.

73. S McKelvey and J Grady ‘Sponsorship program protection strategies for special sport events: are event organizers outmaneuvering ambush marketers?’ (2008) 22 J Sport Mgmt 550 at 550.

74. The technical manuals relating to London 2012 are available at http://www.gamesmonitor.org.uk/node/935 (accessed 16 June 2014).

75. Sydney 2000 Games (Indicia and Images) Protection Act 1996, ss 9 and 12.

76. Sydney 2000 Games (Indicia and Images) Protection Act 1996, ss 8 and 12. The words or phrases controlled by s 8 were: Games City; Millennium Games; Sydney Games; Sydney 2000; any combination of the word ‘Games’ with the number ‘2000’ or the words ‘Two Thousand’; Olympiad; Olympic; Share the Spirit; Summer Games; Team Millennium; any combination of ‘24th’, ‘Twenty-Fourth’ or ‘XXIVth’ with ‘Olympics’ or ‘Games’; any combination of ‘Olympian’ or ‘Olympics’ with any of the following: Bronze, Games, Gold, Green and Gold, Medals, Millennium, Silver, Spirit, Sponsor, Summer, Sydney, Two Thousand or 2000 (and their various Paralympic equivalents).

77. Sydney 2000 Games (Indicia and Images) Protection Act 1996, ss 43 and 46 respectively.

78. Curthoys, J and Kendall, C ‘Ambush marketing and the Sydney 2000 Games (Indicia and Images) Protection Act: a retrospective’ (2001) 8(2) eLaw J; available at http://www.murdoch.edu.au/elaw/issues/v8n2/kendall82nf.html (accessed 17 June 2014)Google Scholar.

79. See A Kitching and M Pigeon Bill C-47: The Olympic and Paralympic Marks Act: Legislative Summary (30 April 2007); available at http://www.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?ls=c47&Parl=39&Ses=1 (accessed 17 June 2014).

80. Ibid.

81. Olympic and Paralympic Marks Act 2007, ss 3(1) and (2).

82. Olympic and Paralympic Marks Act 2007, s 4(2). The words or phrases referred to in s 4 and controlled by Sch 2 were: Canada 2010; Canada's Games; Games City; Sea to Sky Games; Vancouver 2010; Vancouver Games; Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games; VANOC; Whistler 2010; Whistler Games together with their French and Paralympic equivalents.

83. Part 1: Games; 2010; Twenty-ten; 21st; Twenty-first; XXIst; 10th; Tenth; Xth; Medals. Part 2: Winter; Gold; Silver; Bronze; Sponsor; Vancouver; Whistler.

84. See further Canadian Broadcasting Corporation ‘Lululemon scolded for linking clothing line to Olympics’; available at http://www.cbc.ca/news/lululemon-scolded-for-linking-clothing-line-to-olympics-1.843999 (accessed 17 June 2014).

85. London Olympic Games and Paralympic Games Act 2006, Sch 4 para 1(1).

86. London Olympic Games and Paralympic Games Act 2006, Sch 4 para 1(2).

87. London Olympic Games and Paralympic Games Act 2006, Sch 4 paras 2 and 4.

88. London Olympic Games and Paralympic Games Act 2006, Sch 4 para 3.

89. Olympic Symbol etc. (Protection) Act 1995, s 6.

90. Above n 57.

91. The London Organising Committee of the Olympic and Paralympic Games Limited London 2012's UK Statutory Marketing Rights: Brand Protection (London: LOCOG, 2010).Google Scholar

92. Tacitly acknowledge by LOCOG; ibid, at 2.

93. Limited defences applied for use in pre-existing trademarks, honest commercial practices (including denominations of origin and date) and journalism or publishing information about the Olympics, Sch 4 paras 6–8.

94. D Ellis, T Scassa and B Seguin ‘Framing ambush marketing as a legal issue: an Olympic perspective’ (2011) 14 Sport Mgmt Rev 304.

95. The process continues to be observed through the laws in place at Sochi 2014, which extended the protections afforded to the Games by preventing the use of words or symbols that are similar to those granted legislative protection, and the Brazilian laws for Rio 2016 going further still, prohibiting any improper connection. See further Louw, above n 9, p 187 et seq.

96. Metropolitan Police ‘Ticket crime: problem profile, February 2013’; available at http://content.met.police.uk/News/Ticket-Crime-report-published/1400015231049/1257246745756 (accessed 17 June 2014).

97. Between November 2005 and February 2007, the Department for Culture, Media and Sport hosted four ‘Ticket Touting Summits’ and undertook a Consultation on the operation of the secondary market. For further context and the other DCMS initiatives, see P Ward Ticket Touting, House of Commons Library Standard Note SN/HA/4715, 16 January 2014. The Culture Media and Sport Select Committee has also reported on this area – Ticket Touting Second Report of Session 2007–8, HC 202 (London: HMSO, 2008) – and the government has responded: Department for Culture, Media and Sport Government Response to the Culture, Media and Sport Select Committee Report on Ticket Touting, Cm 7346 (London: HMSO, 2008).

98. See http://www.publications.parliament.uk/pa/cm201011/cmbills/013/11013.i-i.html (accessed 18 June 2014). This Private Members Bill was filibustered by Conservative MPs at its second reading on 11 January 2011; see http://www.sharonhodgson.org/ticket-touting-private-members-bill (accessed 18 June 2014).

99. Prosecution for fraud under the Fraud Act 2006, ss 1 and 2 (previously as obtaining property by deception) is a possible, though often not appropriate means, of regulating touting. See R v Marshall [1998] Cr App R 282.

100. See eg the tickets for London 2012. On the front the ticket is clearly marked ‘Not for Resale’ and on the reverse the terms and conditions of sale note, inter alia: ‘Tickets are STRICTLY NON TRANSFERABLE … Tickets obtained from Persons other than directly from LOCOG (or from a Person authorised by LOCOG) shall be VOID and may be SEIZED or CANCELLED WITHOUT REFUND OR ENTRY TO A SESSION. Any person seeking to use a Ticket obtained in breach of the Terms and Conditions may be considered a trespasser, may be ejected and may face legal action’ (material on file with authors). See further Rugby Football Union v Viagogo [2012] UKSC 55, where personal information was demanded from the defendant in order for the claimant to bring actions for breach of contract were sought against those selling tickets and trespass to property against those seeking to gain entrance to England international matches with a touted ticket.

101. LJ Taylor Final Report into the Hillsborough Stadium Disaster, Cmnd 962 (London: HMSO, 1990).

102. HMSO, above n 97, at para 275.

103. See S Greenfield and G Osborn ‘After the Act? The (re)construction and regulation of football fandom’ (1996) 1 J CL 7–28.

104. Criminal Justice and Public Order Act 1994, s 166(6) allows the Secretary of State to extend the provisions to other sporting events.

105. See Lord Bassam, HL Deb col 673, 22 May 2006 and S Greenfield, G Osborn and S Roberts ‘Contradictions within the criminalisation of ticket touting: what should be the role of the law?’ [2008] 3 Web J Current Legal Issues; available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1334624 (accessed 17 June 2014).

106. The definition of ‘designated football match’ is provided in The Football (Offences) (Designation of Football Matches) Order 2004/2410 and covers most professional, semi-professional and international representative matches that take place in England and Wales.

107. Criminal Justice and Public Order Act 1994, s 166(2).

108. Criminal Justice and Public Order Act 1994, s 166(2)(aa).

109. IOC Technical Manual on Ticketing, November 2005. This document was secured via a Freedom of Information Request made to DCMS by Games Monitor, an Olympics pressure group; available at http://www.gamesmonitor.org.uk/node/935 (accessed 17 June 2014).

110. London Olympic Games and Paralympic Games Act 2006, Explanatory Notes, at 3.

111. With the omission of ss 2(aa)(ii), London Olympic Games and Paralympic Games Act 2006, s 31(2)(b).

112. London Olympic Games and Paralympic Games Act 2006, s 31(1)(a).

113. London Olympic Games and Paralympic Games Act 2006, Explanatory Notes, at 71.

114. On the commercial aspect, see the comments of Richard Caborn MP, cited in M James and G Osborn ‘Consuming the Olympics: the fan, the rights holder and the law’ for the British Library Sport and Society: The Summer Olympics through the Lens of Social Science, at 4; available at http://www.bl.uk/sportandsociety/exploresocsci/parlaw/law/articles/consuming.pdf (accessed 17 June 2014).

115. LOCOG, above n 91, part D.

116. Above n 8 and, further, Freedom of Information Act request, CMS case number 106119, where it was stated that touting was detrimental to the image of the Olympic Games.

117. Glasgow Commonwealth Games Act 2008, s 17(3).

118. Glasgow Commonwealth Games Act 2008, s 17(2).

119. Above n 4, at 836 and 839 respectively,

120. Zumbansen, P ‘Neither ‘public’ nor ‘private’, ‘national’ nor ‘international’: transnational corporate governance from a legal pluralist perspective’ (2011) 38(1) J L Soc'y 50.Google Scholar

121. On cost overruns, see B Flyvbjerg and A Stewart Olympic Proportions: Cost and Cost Overrun at the Olympics 1960–2012 (Oxford: Saïd Business School Working Papers, 2012); available at http://ssrn.com/abstract=2238053 (accessed 6 February 2015). On falling participation rates, see Sport England Active People Survey 8 (London, 2015); available at http://www.sportengland.org/research/who-plays-sport/ (accessed 6 February 2015). See also M Weed et al. ‘The Olympic Games and raising sport participation: a systematic review of evidence and an interrogation of policy for a demonstration effect’ [2015] Eur Sport Mgmt Q 195.

122. S Corbett and Y van Roy ‘Events management in New Zealand: one law to rule them all?’ [2010] 4 J Bus L 338.

123. For a commentary of the Bill, see L Dale ‘Australia's Major Sporting Events Protection Bill 2014 (Cth)’ 3 June 2014, World Sports Law Report; available at http://www.e-comlaw.com/sportslawblog/ (accessed 17 June 2014).

124. For further information on the procedure, see http://www.med.govt.nz/majorevents/major-events-management-act-2007 (accessed 30 April 2015).

125. H Xanthaki ‘Legal transplants in legislation: defusing the trap’ (2008) 57 Int'l & Comp L Q 659 at 662.