Rule 40 and the IOC: can a swimmer be in deep water?

Michael Phelps for Vuitton No1

Record-breaking and recently retired swimmer Michael Phelps, the most decorated Olympian of all time with 22 medals, is now apparently in trouble over an ad campaign for Louis Vuitton which may result in him losing all his medals (four gold and two silver) from the London 2012 Games, reports the Daily Mail. 

Last 13 August, two photos of Phelps by Annie Leibovitz appeared on Twitter. One of them is a portrait of Phelps in a bathtub, wearing swimwear and goggles, while the other one depicts him wearing a three-piece suit and sitting on a couch with former Soviet gymnast Larisa Latynina, whose record for most overall medals he broke at the London Games, explains The Washington Post.

Apparently, the publication of these photos was in breach of Rule 40 of the International Olympic Committee (IOC), according to which

Michael Phelps for Vuitton No 2

"Except as permitted by the IOC Executive Board, no competitor, coach, trainer or official who participates in the Olympic Games may allow his person, name, picture or sports performances to be used for advertising purposes during the Olympic Games." [For the "Olympic Games", Rule 40 applied from 18 July 2012 until three days after the Closing Ceremony for the Games – 15 August 2012]

Participants who do not comply with Rule 40 may be sanctioned by the IOC and/or by the British Olympic Association (BOA) in accordance with the Team Members’ Agreement (which provides for wide ranging sanctions, including amongst other things, removal of accreditation and financial penalties). Rule 23 of the Olympic Charter allows sanctions including, ultimately, disqualification from the Games and/or withdrawal of the participant’s accreditation.

Now the point is to clarify whether the photographs were leaked intentionally by Vuitton or whether, instead, they were divulged without Vuitton and the athlete's permission.

Blake and his Mille watch

Vuitton has already declared that the two photos were unofficial images and were stolen from the company.

Similarly, Phelps' agent Peter Carlysle dismissed any suggestion that the swimmer may have violated Rule 40, reports The Huffington Post.  "He didn't violate Rule 40, it's as simple as that", Carlisle said. "All that matters is whether the athlete permitted that use. That's all he can control. In this case, Michael did not authorize that use. The images hadn't even been reviewed, much less approved. It's as simple as that. An athlete can't control unauthorized uses any more than you can guarantee someone isn't going to break into your house."

The Kats have written extensively about ambush marketing concerns during the Olympics (eg here), as have newspapers. Reports from the competitions have also highlighted the strict IOC policy.

Many athletes were just too
afraid of infringing Rule 40 

For instance, during the 100m semifinals and finals, Jamaican sprinter Yohan Blake attracted more attention from the IOC because of what he wore rather than for how he performed. The athlete wore in fact a $500,000 Richard Mille customised watch, thus contravening IOC rule that athletes are only allowed to wear gear that is part of their country's sponsored apparel, reports TNT. Similarly, if athletes use a piece of equipment that is not strictly clothing, they are required to use the official sponsor of the Olympics in that category. As far as watches are concerned, Omega was the official watchmaker of the London 2012 edition. By wearing a Mille watch, also Blake acted in breach of IOC Rule 40 and may face a fine for this.

Going back to Phelps, this Kat believes that it is unlikely that he will lose any of his London medals.

However, now that the Games are over, it may be worth discussing whether IOC anti-ambush marketing policy is a good one or whether, instead, as commented by Sports Business "Rule 40 is great for the Olympics ... 20 years ago. In today's marketing world, where athletes are featured in commercials, billboards, and in print ads, it's no longer feasible.  Athletes like Michael Phelps, Ryan Lochte, Gabby Douglas, and Usain [B]olt are marketing gold for high-profile companies. While Missy Franklin has maintained her amateur title, she's one of the few. However, the IOC won't be doing away with Rule 40 anytime soon. While it was front and center during these Olympics, many fans outside of the [T]witter world didn't take notice."