OS i missbruk av dominerande ställning - En konkurrensrättslig analys av SOK:s riktlinjer beträffande marknadsföring under den olympiska perioden

Sammanfattning: The Swedish Olympic Committee's (SOC) guidelines ”Olympic properties and marketing – Information to Federations (NFs), athletes and coaches before the Tokyo 2020 OG” regulates the commercial opportunities for athletes, NFs and non-Olympic partners during and in connection with the 2020 Summer Olympics in Tokyo. The guidelines are issued in accordance with bye-law 3 to Rule 40 of the Olympic Charter and The International Olympic Committee's (IOC) general principles for marketing activities, and particularly restrict Swedish athletes’ generic commercial activities (i.e. commercial activities whose only connection with the OG is an Olympic athlete). The fact that athletes and other relevant organizations concerned are bound by a unilateral and legally binding civil law framework that expands the legal protection against improper and disloyal business practices is most assuredly not a sports-unique phenomenon. However, considering that SOC's guidelines considerably restricts Swedish athletes’ commercial rights during the Olympics and that the German competition authority Bundes-kartellamt in December 2017 found that the German Olympic Sports Confederation's (DOSB) in substantial parts identical guidelines regarding the 2016 Summer Olympics in Rio de Janeiro could constitute an abuse of DOSB's and IOC's dominant position on the relevant market, there is reason to further assess whether SOC's marketing guidelines violates article 102 TFEU. SOC's guidelines and their relation to EU competition rules are complicated by the specificity of sports and its internal organisation, which must be recognised and taken into account when assessing regulatory aspects of sports. This relationship is further complicated by the fact that SOC's regulation, at least in part, provides IOC and SOC a necessary protection against ambush marketing. In order to assess the extent to which sporting interests and sporting peculiarities can justify an exception from article 102 TFEU, selective parts of the Trademarks Act, the Marketing Act and EU law are analysed. In particular the analysis takes account of the Trademarks Act's registration requirements, the Marketing Act's stipulation that all marketing shall be consistent with good marketing practice and the EU principle of a single federation per sport. Furthermore, the analysis takes the core objectives of the internal market into account. The analysis of applicable law shows that SOC's guidelines seem to be incompatible with article 102 FEUF. Consequently, a number of suggestions for adjustments in the said guidelines are presented. These suggestions include, but are not limited to, that Swedish athletes should be able partake in generic advertising campaigns with non-Olympic sponsors during the Games period without prior consent from SOC and without unreasonable time limitations, that non-Olympic sponsors should be able to post generic congratulatory advertising during the Games period and that small businesses should be able to promote local athletes they sponsor unhindered by the guidelines, insofar the undertaken marketing activities are generic and otherwise compatible with the Olympic values and anti-ambush marketing laws, and are conducted without unduly infringing on official Olympic partners monetary interests.