Freedom and Nike Frees: in Defense of the Fashionable Spectator

Picture this scenario: You are a working class citizen of Brazil; your friends are as well; like most Brazilians, you’re crazy about football; you are very much excited for the next FIFA World Cup of Football that your country will be hosting in 2014; 2014 comes and you save up a lot of money in order to watch all of the games to be played in your hometown; likewise, you save up a lot of money in order to buy both the home and away kits of the Brazilian national team, sporting the name of the current bearer of the legendary number ‘10’, Neymar; The kits feature a big Nike ‘swoosh’ on the left chest part of it, opposite the Brazilian team logo; come game time, you and your friends are pumped to see your favorite team play against the current FIFA rankings leader, Spain; you line up hours before the start of the game but as soon as you reach the gate, the big bouncer stops you on your track and says that you and all your Nike wearing friends cannot enter because, like in the past World Cups, Nike is not the ‘official’ sponsor the 2014 FIFA World Cup; you argue with the bouncer, you even asked for one of the organizers, but to no avail; all that hard work netted you nothing but the opportunity to watch the games on your couch with a remote on one hand and a wasted ticket in the other. Who will you blame for your mishap? FIFA? The Government? Or no one but yourself? Maybe you should start blaming the entirety of the marketing “geniuses” of the world.

Ambush marketing: an overview

In an effort to make the most out of their marketing budgets, companies come up with plenty of gimmicks. Some pay for product placement in TV shows and movies, while others hire big name celebrities to endorse their products. But probably one of the weirdest of these gimmicks came into the international limelight during the 2006 FIFA World Cup hosted by Germany.

Before a game between the national teams of The Netherlands and Cote d’Ivoire, a mass of Dutch fans marched towards Stuttgart, Germany in order to support their team.[1] A big group of Dutch supporters donned pairs of orange (the Dutch team’s colors) lederhosen (a Bavarian cultural outfit popularized by its use during yearly Oktoberfest) branded by Bavarian Beer, a not-so-popular Dutch beer brand.[2] FIFA, probably in an effort to protect its biggest sponsor that year, Budweiser, issued orders to forbid entry to the supporters unless they strip down and remove their branded outfits.[3] The security personnel acceded to the orders and the supporters were left to watch the game in their underwear, leaving the Gottlieb-Daimler-Stadion full of raving half-naked Dutch men and women.[4] Naturally, the (distracted) African team lost 2-1 to the Dutch. Despite the failure, if you can call it that, the event was naturally captured and reported by the international media, thus, ambush marketing was made known and so did Bavarian Beer. Bavaria Beer again did the same act during the last FIFA World Cup but they upped the ante a bit and decided instead to use thirty-six beautiful models instead of thousands of underdressed fans.[5] Business pundits and the media labeled this marketing stunt at ambush marketing.

Definition and history[6] and many other references give a standard definition of ambush marketing thus:

“A marketing 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. An example of ambush marketing might involve selling music merchandise just outside the grounds of a concert without the consent or awareness of the concert promoters, relying on association with the concert to drive sales.”

This method of marketing products came about as a result of the “privatization” of sports events which started with the 1984 Olympics hosted by the city of Los Angeles.[7] The 1984 Olympics was the first of its kind to be completely funded by private firms eager to sponsor the event. Prior to the 1984 Olympic Games, there were no limitations in the number of sponsors, thus the field of sponsors was diluted and there was very little pride in being one.[8] This all changed in the 1984 Games when, I presume, the sponsors started to be limited and started paying premium price in exchange for being labeled the “official” sponsor at a certain category. The trend continued through the Olympic Games following LA 1984 up to the very recent one: London 2012.

During the London Games, there was a ban on large groups of people wearing “visibly branded” clothing.[9] The organizers maintained this stance as a way to protect the businesses that were prepared to invest, saying that this is how the funds for the Olympics are to be obtained else more of the taxpayer’s money will be used.[10] Regardless, non-official sponsors were able to market their products  through means that are outside of the control of the spectators. Take Nike for example: during the London 2012 Games, it was able to outplay the organizers and the official sponsor Adidas by outfitting its sponsored athletes, over 400 of them, with neon colored shoes which could easily capture the eyes of not only the crowd but also that of those watching at home.[11] I expect this scheme to continue in the future and I’m betting the organizers of future events do to.

The Future

As long as there is prestige in sponsoring big events like the Olympics or the Football World Cup, there will be marketing teams that will be left out in bagging that exclusive sponsorship deal. With that in mind, the organizers of upcoming events are already gearing up against potential ambush marketers.

The upcoming FIFA World Cup to be hosted by Brazil for instance has already made it one of the aspects of the organization to focus on as part of its brand protection.[12] The organizers of the event marked ambush marketing as a “prohibited marketing activity,” which can be direct or indirect in nature.[13] The organization reasons out that ambush marketing “puts FIFA’s commercial programme directly at risk by trying to devalue official sponsorship,”[14] which is why it is considered illegal. The FIFA website describes the different kinds of ambush marketing thus:

“A direct association is established when a brand tries to link itself directly to the event, be it through advertising or promotions such as ticket giveaways, use of the tournament designations, etc. An indirect association aims to achieve an association with the event without making a direct link, often implementing creative campaigns aimed at achieving a link to the event. Marketing activities by non-sponsor companies that seek to take advantage of the huge public interest in the event through physical on-site presence can also be categorised as prohibited. The common denominator of such prohibited marketing activities is that they primarily seek free advertising.”[15]

The organization claims that the effect of brand protection is, ultimately, a better fan experience.[16]

The upcoming Commonwealth Games to be held in Glasgow follows the steps of the London Olympics Committee in prohibiting unauthorized marketing within pre-determined ‘event zones.’[17] The prohibition against ambush marketing within the zones includes those done on private lands, as long as the same is within the event zone.[18]

Talking ‘what-ifs:’ Philippine legislation against ambush marketing

Ambush marketing legislation around the globe

Hosting an event as big as the Olympic Games or the Football World Cup requires not only the participation of the private corporations who act as local organizers of the event and the international bodies, like the Olympic Committee and FIFA, but also the government of the host country. Easing the burden of the host government may even be the biggest reason behind the complete privatization of the funding of these kinds of events. This is also why governments of these host nations go through great lengths to provide indirect protection for the sponsors through the organizers and even grant powers to these organizers akin to governmental regulatory powers. I will be citing three examples of legislation enacted by the national governments of the host countries for the purpose of protecting the rights of the sponsors of the events hosted. These laws provided for powers of regulation, powers of enforcement and even punishment for violators.

In preparation for South Africa’s hosting of the biggest football spectacle in the world in 2010, its parliament enacted Act No. 61 of 2002 or the Merchandise Marks Amendment Act of 2002. This law was made to amend the country’s Merchandise Marks Act of 1941 with the purpose of including the upcoming (at that time) FIFA World Cup as a protected event. But this law also came with penal sanctions. The law came with a new Section giving power to the country’s Minister of Trade and Industry to designate an event as a protected event. Paragraph (2) of the inserted Section made it unlawful, during the period which an event is protected, for a person to “use a trade mark in relation to such event in a manner which is calculated to achieve publicity for that trade mark and thereby to derive special promotional benefit from the event, without the prior authority of the organiser of such event.”[19] It further designated the person who contravenes subsection (2) as guilty of an offense. The law was finally made to affect the FIFA World Cup after the country’s Minister of Trade and Industry published a final notice designating the 2010 FIFA World Cup as a protected event under the law.[20] On the strength of this law, two of the alleged organizers of the 2010 Bavaria Beer stunt described above, were arrested from their hotel rooms in Johannesburg, South Africa.[21] Their passports were even confiscated.

The London Olympic Games and Paralympic Games Act of 2006[22] was enacted for the same reasons as the South African law above was except it is for the Olympic and Paralympic Games held in London back in 2012. A whole chapter of the act was dedicated to the regulation of advertising during the two prestigious events. Section 21 (1) of the Act provides that “[a] person commits an offence if he contravenes regulations under section 19.”[23] Section 19 refers for the powers that the Secretary of State shall have in regulating the advertising during the events. The law provides further for penalties for offenses under Section 21 (1) which included fines. Furthermore the chapter on advertising, particularly Section 22, gives the law enforcers power of entry in order to enforce the law.[24]

In 2008, the same parliament that enacted the London Games Act above enacted the Glasgow Commonwealth Games Act of 2008.[25] The two statutes’ penalties are mostly the same even down to the amount of fine but what makes the Glasgow Games Act unique is that it punishes even the body corporate, Scottish partnership or an unincorporated association other than a Scottish partnership along with the individual directly responsible for the violation.[26]

Will our government actually enact laws similar to this one in order to protect corporate interests in case we host an event like the ones described above? Before that, we should first have a history lesson and determine if that scenario is possible.

Can we host such an event?

Even excluding the recently concluded FIBA Asian Basketball Championships, the Philippines have played host to a number of international events in the past that required extensive media attention. This statement also excludes the numerous beauty pageants that the country hosts on a regular basis because while such events also attract the international crowd, these cannot compare to sports events that require massive funding in order to organize.

At least once in each of the past three decades, Manila hosted the South East Asian Games.[27] The first was in 1981, then again in 1991, and the latest was in 2005.[28] Manila also hosted the Asian games in the past, specifically the Second Asian Games way back in 1954,[29] and the beautiful island of Boracay is set to host the 2013 Asian Beach Games, which coincided with the centennial celebrations of the Asian Games (called the Far Eastern Games when it was started in 1913).[30] The quadrennial FIBA World Championship of Basketball was also once held in Manila.[31] This was in 1978, when it played host to all the games up to the thrilling final wherein Yugoslavia defeated the Soviet Union 82-81.

Thus, if history is to be the judge, the country is surely capable of hosting a big sporting spectacle. Although the said events may not be in the level of the Olympic Games, but those in the level of world championships of a specific sport will surely attract international visitors and international sponsors to a certain extent as to require the protection of sponsors from ambush marketing tactics.

More ‘what-ifs:’ the scenario, the rights, the tests and the conclusion

            Now hypothetically, what if one day the Philippines will again be hosting a big sporting event and in order to fund the event the organizers will need various companies to advertise their products during the event as an official sponsor. Can the protectionist stance of the various nations that came before the country deeply favoring the corporate agenda, if adapted by the Philippines, stand against the well-entrenched democratic right to free speech? I believe NOT.

The people’s right

Fr. Joaquin G. Bernas, a renowned law professor and constitutionalist pointed out the importance of the freedom of expression in his award winning book. He said that the right is important for three reasons, thus:

“There are several reasons why freedom of expression is guaranteed by the Constitution. For some, freedom of expression is essential for the search of truth. This is the marketplace idea which posits that the power of thought can be tested by its acceptability in the competition of the market. Another reason offered is that free expression is needed for democracy to work properly. The citizen-critic has to be given the information required for him to be able to perform his civic duty. Still another reason is a very personal one. Freedom of expression promotes individual self-realization and self-determination.[32] (emphasis supplied)

The first two reasons for the importance of the right to free expression is more or less concrete now, there being many precedents citing the primacy of the freedom of the press and academic freedom over other right as well as the right of the state to intrude on those rights. However, this is not the case with the third prime reason.

While the freedom to wear whatever a person wants to wear can be generally accepted as part of the right to free expression, this is usually invoked in relation to other rights like the right to associate and freedom of religion. In the case of German, et al. v. Gen. Barangan,[33] the petitioners invoked their right to wear their group’s colors while they marched towards St. Jude church in order to attend mass. They were not allowed to do so because they marched to the church with clenched fists and while reciting anti-government words. The Supreme Court sided with the presidential guards claiming that the march was not done in good faith and that the “petitioners are not denied or restrained of their freedom of belief or choice of their religion, but only in the manner by which they had attempted to translate the same into action.” It is however good for our discussion to point out the dissenting opinion of Justice Makasiar. He wrote:

“Their wearing yellow T-shirts and clothing and bearing yellow emblems or banners, are forms of expression which are also protected by the constitutional guarantees of freedom of expression in general, and religious freedom in particular.”

Although only an obiter, this will nevertheless serve as evidence that there is a right to wear whatever one wants and that it is tied to the right to free expression.

The Universal Declaration of Human Rights firmly declared that “[e]veryone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.[34]” (emphasis supplied) It cannot be denied that the way one dresses himself is a form of media to convey ideas and express ones personality. Clearly then, even international law protects a person’s freedom to wear whatever he wants.

The government/organizers/sponsor’s interest

In our scenario, the people’s right to free expression and the people’s interest in keeping this freedom are countered by three distinct interests of three distinct entities. The government has an interest in improving its international reputation. It has interest in showing to the world that it can do things with international impact. It is basically interested in gaining prestige. The organizing entity has interest in obtaining funds in order to run the show. It is interested in obtaining such funds in the most efficient way possible and in obtaining such funds without burdening the government and the people of the host country. The sponsoring private entities on the other hand have a compound interest to be protected: it wants to promote its product/s and it wants to restrict its competitors’ ability to promote their own product/s. The sponsors paid large sums of money for the exclusivity and they expect their interests to be protected in exchange for those sums.

Violating the right to free expression and the tests to see if there is a violation

The grant, by legislation, of the power to do enforcement measures in order to fight ambush marketing, even if the government is not the actual actor in the enforcement, is still dangerous since it gives the private entities organizing the event the means to violate the people’s right to freely express themselves. There are two ways of violating the freedom of speech clause found in our constitution. The first is termed “prior restraint.” It means “official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination.[35]” An example of prior restraint is movie censorship,[36] censorship of a published material,[37] or any form of censorship of pre-recorded media. Prior restraint can also be associated to exorbitant or unjust license fees and taxes.[38] The second way, termed “subsequent punishment”, is more or less self-explanatory.

These methods of curtailing freedom of expression are just that, they are the means. It does not follow that whenever the government prevents the publication of material or provides for punishment for unlawful publication that there is a violation of the right to free speech. The right to free speech was never intended to be absolute. Only when the means used are unjust or unreasonable do these restraints and punishments become violative of the people’s right.

When then is prior restraint or subsequent punishment valid? Well there are tests to determine validity of governmental acts and then there are those speech deemed clearly to be unprotected. The examples of the latter are publication of seditious speeches, of obscenity, or libelous imputations, and publication of copyrighted material. As for the tests, there are three that have been given clear recognition: the “dangerous tendency,” the “clear and present danger” and the “balancing of interests” tests. For this analysis we will use the “balancing of interests” test since the first two will more often than not apply only to big politically charged speeches that could topple governments and are directed thereto. This matter at hand is not that kind, especially considering that the effect of the expression to be weighed against the interest of the government is very minimal and seems to be indirect.

Applying the test

The balancing of interests test requires, as the name expresses, that we balance the conflicting interests in order to determine which “demands the greater protection under the circumstances presented.[39]” When a law not very different from the foreign examples I’ve given above is passed in order to prevent ambush marketing during an prestigious sporting event that the country is hosting, I believe that the law will ultimately fail when the interests of the corporations and the organizers are measured against that of the people.

As for the provisions preventing the spectators wearing clothing branded with trademarks of non-sponsors, it can easily be considered prior restraint that is both unreasonable and unjust. The spectators not only paid good, hard earned money in order to buy the said piece of clothing but they also paid good, hard earned money in order to buy the ticket to watch the game live. This means that while the non-sponsor profited from the spectator buying his merchandise, the organizer did as well since the spectator bought a ticket in order to watch the event. The economic effect therefore to the organizer of letting a single spectator to watch the games inside the stadium is negligible since the fact that he is wearing the merchandise of a non-sponsor is offset by the money brought in by the spectator’s buying of the (often overpriced) ticket. Further, even if the organizers allow people wearing the merchandise of a non-sponsor inside in order to watch from the stands, how can the image imprinted onto the shirt of such spectator compare to the sizes of the banners of the official sponsors littering the event site. The effect of allowing entry to the interest of the sponsor is, again, very minimal compared to the effect of disallowing entry to the spectator.

Punishing those found to be guilty of ambush marketing is likewise unjust and unreasonable when the punishment is directed to the persons who actually exercised their right to express themselves. This should be a defense of the alleged marketer and only when he is proven to have done the illegal acts in utter bad faith or under the direction of a company who will directly profit from the marketing can he be found guilty and be punished with a fine. The fines to be paid, however, of the companies that directly profited from the illegal marketing should be much higher than that ordered to be paid by the hired marketer because in this scheme, the people who actually do the acts punishable are nothing more than media through which the product is advertised. They are not much different than billboards in that they are made to be the means to publicize the products of the non-sponsor.

Regardless, the semi-legality of the punishment does not erase the fact that what this hypothetical law does is to unreasonably and unjustly restrain a person’s right to express himself and dress as he desires and such is the essence of the right we are striving to protect. And this is reason enough to not allow a similar law to be passed if ever such is required.

[1] James Emmett. Rise of the pseudo-sponsors: A history of ambush marketing. SportsPro Media. Accessed: 8/27/2013

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Marina Hyde. Another triumph for Fifa’s chillingly efficient rights protection team. The Guardian. Accessed: 8/27/2013

[6] Ambush Marketing. Accessed: 8/27/2013.

[7] Ibid. at 1.

[8] Ibid.

[9] What not to wear and bring: Olympic spectators’ guide. Accessed: 8/27/2013

[10] Faine Greenwood. Branded clothes come under scrutiny in London Olympics flap. Global Post. Accessed: 8/27/2013

[11] Noel Young. How Nike pulled off brilliant ambush marketing in the Olympics. The Drum Magazine. Accessed: 8/27/2013

[13] Prohibited marketing activities (ambush marketing). Accessed: 8/28/2013

[14] Ibid.

[15] Ibid.

[16] To guarantee a positive fan experience. Accessed: 8/28/2013

[17] ‘Ambush marketing’ prevention rules for Glasgow 2014 Commonwealth Games published. Pinset Masons, Accessed: 2/28/2013

[18] Ibid.

[19] Section 2, Act No. 61 of 2002 of the Parliament of South Africa. Accessed: 8/28/20013

[20] Notice 638 of2006 of the Minister of Trade and Industry of South Africa. Accessed: 8/28/2013

[21] Iain Macintyre. Bavaria backs Dutch “beer babes” in advert row. Radio Netherlands Worldwide. Accessed: 8/28/2013

[22] London Olympic Games and Paralympic Games Act of 2006. Accessed: 8/28/2013

[23] Ibid. Section 21 (1).

[24] Ibid. Section 22 (1).

[25] Section 36, Glasgow Commonwealth Games Act 2008. Accessed: 8/28/2013

[26] Ibid. Section 36 (1).

[27] History of the SEA Games. Olympic Council of Malaysia. Accessed: 8/28/2013

[28] Ibid.

[29] 1954 Asian Games. Wikipedia. Accessed: 8/28/2013

[30] June Navarro. Philippines to host 2013 Centennial Asian Games. Accessed: 8/28/2013

[31] VIII World Championship (Manila 1978). Accessed: 8/28/2013

[32] J.G. Bernas, S.J. The 1987 Constitution of the Republic of the Philippines: A Commentary. 2003 Edition. Rex Book Store, Inc. Page 223.

[33] G.R. No. L-68828, March 27, 1985

[34] Article 19. Universal Declaration of Human Rights.

[35] Ibid. at 32. Page 225.

[36] Freedman v. Maryland, 380 U.S. 51 (1965); Iglesia ni Kristo v. Court of Appeals, G.R. No. 119673, July 26, 1996

[37] New York Times v. United States, 403 U.S. 713 (1971); Burgos, Sr. v. Chief of Staff, AFP, G.R. No. L-64261, December 26, 1984

[38] Grosjean v. American Press Co., 297 U.S. 233 (1936)

[39] American Communications Association v. Douds, 339 U.S. 383



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2 responses to “Freedom and Nike Frees: in Defense of the Fashionable Spectator

  1. I am not sure where you’re getting your info, but great topic.
    I needs to spend some time learning more or understanding more.
    Thanks for magnificent info I was looking for this information for my mission.

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