PyeongChang 2018: the top five legal talking points so far

Alex Kelham, head of the sports business group at law firm Lewis Silkin, considers five of the top legal talking points surrounding the ongoing Winter Olympic Games in South Korea.

PyeongChang 2018: the top five legal talking points so far

The Winter Olympics in PyeongChang are in full swing and the medals have started to roll in. Olympic events, both summer and winter, are, as we all know, political as well as sporting occasions. But this year’s Winter Games came with an intense prelude of geopolitical tensions which have added to the watchlist of legal and regulatory flash-points that are driving the debate away from the slopes and rinks.

Here are the top five legal talking points so far:

North / South reconciliation?

One of the most encouraging themes to emerge from the Games is an apparent thawing of relations between North and South Korea. In a move which raises geopolitical, sporting and feminist issues, we saw North and South Korea join forces in the women’s ice hockey competition. In its subsequent defeat to Switzerland during the opening weekend, the united Korean team showed that winning clearly isn’t everything.

Athletes and teams of course compete in the Olympics on a nationalistic basis, so does this open the door for other joint teams, brokered for political reasons, and perhaps a shake-up of the Olympic system?

Well, maybe; the IOC already exercises some flexibility with its recognition of borders which may not strictly be on the map. For instance, it has, since 1995, recognised a Palestinian team. 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. 

From Russia (not) with love

To stick with the geopolitical theme, in the sporting world the lead up to these Games was arguably dominated by one story - the status of Russian athletes competing at the Games.

The Mclaren report, initiated by the World Anti-Doping Agency (WADA) in 2016, concluded that Russia had orchestrated institutional doping between 2011 and 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) were more robust ahead of PyeongChang. They've banned the flying of the Russian flag and insisted 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. 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.

On the opening day of the Games, CAS sided with the IOC and rejected the appeals of 45 Russian athletes who were contesting the IOC’s decision not to invite them. CAS determined that the IOC had the discretion as to who to invite, and had not exercised it unfairly. While many athletes and advocates against doping have welcomed this decision, the fallout of the saga continues to have real consequences.

Bosco flexes its muscles

As the Russian doping affair continued to play out, Russian brand Bosco, the exclusive supplier of IOC clothing for 2018, took the decision to seek to step away from the sponsorship rights it had won and requested that IOC officials refrain from using the Bosco brand at the Games.

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 (left) 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

Rule 40 - that element of the Olympic Charter which 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.

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.

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 yet 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 at the ready

With the IOC implementing such stringent controls over brand involvement and marketing activity around the Games, ambush marketing continues to be a significant issue.

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' has already come under fire.

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.

Alex Kelham is the head of the sports business group at law firm Lewis Silkin.