Susan: Welcome everyone to our webinar, Competitive Advantage: Legal Strategies for Success in Canada's Sports Industry. There's our legal disclaimer. We'll get the business out of the way quickly. Welcome everybody. This webinar is brought to you by Gowling WLG's Entertainment and Sports Law group. Gowling WGL is an international full service law firm with offices across Canada, in the UK, Europe, Asia, the Middle East and South America. I'm Susan Abramovitch. I'm a Gowling WLG partner and I'm the head of our Entertainment and Sports Law group. Our diverse team is proud to advise numerous athletes, teams and other sports stakeholders here in Canada and around the world. We're even serving as official legal advisors to Team Canada and Commonwealth Sport Canada and are excited to help our athletes for the Gold at next year's Commonwealth games in the UK. Equipped with all of this experience we're deeply attuned to the unique challenges and evolving considerations presented by the Global Sports Industry. Our discussion tonight will highlight several of these key areas and suggest ways to approach them strategically. You should know that this webinar is being recorded and will be posted online within a week. If you're interested in future webinars, or past webinars, and other resources related to the Entertainment and Sports Law group we recommend that you subscribe to our Entertainment and Sports Law newsletter so that you don't miss future events or other news. Details on that will be provided below. For today's session feel free at any time throughout the presentation to send us a question through Zoom's Q&A feature. We'll try to respond at the end if we have time. Now, we're so pleased to introduce our moderator, Claire Carver-Dias, although many of you are probably well aware of her achievements already. Claire has won medals on the Canadian National Synchronized Swim Team at the Olympics, the Pan-American Games and the Commonwealth Games. Currently a lecturer at the University of Toronto, Claire also is lead consultant for Clearday Communications, a management consulting and executive coaching firm that she founded in 2003. Over to you, Claire.
Claire: Today we will be covering a variety of topics related to sports law with the goal of providing you with a better understanding of your legal rights and responsibilities, whether as a professional athlete, coach, agent, team or company dealing with the above. To kick things off today we're going to go back to Susan and hear from Susan Abramovitch. But let me introduce her first. So Susan is one of the world's leading entertainment and sports lawyer. She's worked in entertainment and sports industries for over 25 years with a practice spanning sports, e-sports, music, television, film, video gaming and book publishing. Susan will be discussing personality rights today. Susan?
Susan: Thank you. So personality rights is a topic near and dear to my heart because actually in law school, way back when, more than 25 years ago, it was one of the big papers I wrote and I actually ended up getting it published. It was about personality rights under Quebec law. You can probably dig that out of the law journals if you ever want to see it. This is what we're going to cover today. First of all, what are personality rights? Number two, why would we want to protect them? Three, what do personality rights actually protect? Four, how does the law approach it? I warn you four is complicated because the law is not consistent even within the same jurisdictions. Next slide, please.
So first of all, what are personality rights? To put it as simply as I can, a personality right is a right, proprietary right although we'll see later that maybe it's not a proprietary right, maybe it's something else, but it's a right in the exclusive marketing for gain of your personality, image and name or any other aspect of your personality. We're calling them personality rights but in different places, different jurisdictions around the world, there are different words to denote the same kind of right. So you might hear about image rights. In the US they're called publicity rights. We'll talk about misappropriation of personality. That's another way of describing it but all of this nomenclature is getting at the same thing, which is an exclusive right to exploit aspects of your personality that identify you, and to earn money from that, or to control the fact that other people cannot use them. We start from the premise that everybody, athletes and frankly everybody, potentially has publicity rights or personality rights in their image and likeness and other aspects. We'll talk about all those aspects later. The thing is that some people's personality rights are more valuable than others, as you might imagine, and that the value will depend on the level of celebrity, or put another way, how much the public associates the aspect of the personality with you the person, and to the extent that they even know you the person. So everybody may have personality rights but some personality rights are more valuable than others. The other thing to understand is that although you may have these rights it's possible to alienate those rights to somebody else or to restrict yourself from using those rights. So for athletes, for example in sports contracts, you might see, and very commonly do see, that members of teams give to their teams or to the leagues, the right to use images or footage of those athletes, or players, playing in their sport. Those sports agreements, athletes agreements, may also have restrictions like restrictions on what can be discussed in interviews. There's also what's called morals clauses that may limit the behaviour of players and athletes in public. That behaviour may also restrict things that they can associate themselves with or public statements and that kind of thing. The other thing is you have to keep in mind the personality rights only, of course, protect aspects of your personality. They do not extend necessarily to trademarks that other people may control like team logos or league logos. You always have to be careful that when you're asserting your publicity rights and saying, "Hey. Here third party, you can use this picture of me." you need to make sure that you're not also somehow approving of the use of other rights or other trademarks that may be controlled by somebody else. Next slide, please.
Alright, so, why do we want to protect them? Well, as you may already suspect one reason you want to protect these rights is to preserve their exclusivity. The reason we want to preserve exclusivity is both to maintain or grow the value or create scarcity so that there is value in the market place when somebody does want to use your personality for commercial use. You also may want to protect the public goodwill or your reputation in the use of your personality. Of course, the more you do those two things, the more you're protecting opportunities to earn endorsement fees or other ways of capitalizing on your personality. Next slide.
So what do personality rights protect? So I alluded to this before. Basically any attributes that identify a person to the public and that particular person. So their name is the most obvious and when I say name, that could be initials, that could be a first name if that identifies them. I think if somebody used the name 'Susan' in conjunction with a product, the public would not necessarily associated that, necessarily with me. But there are other names like LeBron that maybe conjure up one person in particular. In fact, former names, males would be covered by this just because it's not the name of the person now a former name obviously, again, if it identifies that person in the public mind then that could be an aspect of personality rights. Somebody's voice, again, if identified with that particular person. There are cases in Quebec law about expressions or catchphrases this duo of comedians used to use that were used in a commercial and even though it wasn't in their voice and their names weren't used, their image wasn't used, because those expressions were so identified with them that was considered an aspect of their personality. Of course, any kind of likeness whether it's a photo or it doesn't necessarily have to be a photo. There's a famous case of a water skier who had used in his promotional materials an artistic rendering of a particular waterski pose, that had become very identifiable with that particular athlete, and he was able to assert that the use of that artistic rendering as somehow offending his personality rights when used by somebody else without his consent. It could be other things too. Not just aspects of your actual person. Like your face or your name or your voice. There may be other elements that easily identify you. The example we give here is a Chicago Bulls jersey with the number 23. In the public mind everybody knows what that conjures up. In fact, in Ontario there was a case of a Hamilton Ti-Cats football player whose image, but not face, was used in a commercial product in association with a company and it was just the number on his jersey that was used. Now in that case he did not actually win that case but query whether a very identifiable number on a particular jersey for a particular team, even without seeing somebody's face, could be asserted as a violation of personality rights if used without consent. Next slide, please.
Here's the complicated one. How does the law protect personality rights? The most important thing to take away, and I'm sorry to say this, but when somebody comes to me and says, "Okay, I want to use this image of an athlete or a celebrity, can I do it?" and I say, "Okay, well where are you going to circulate this ad, or whatever it's being used in?" and they say, "Well, it's going to be worldwide." that's a big problem because personality rights are determined and protected State by State, Province by Province, country by country, and so in order to answer that question we'd have to go through the entire world, country by country, and in the US and Canada, State by State and Province by Province, to determine what personality rights protects there. That's very hard to do. The other thing that's hard is that of course the protections are not consistent. Even the basis for the protection are not consistent. So in Ontario personality rights are protected by what we call the common law. Which basically means a series of case law that is spelled out what should be protected and unfortunately the case law has not always been consistent for the basis. So the two cases that I put there, but there are many, Krouse is the Hamilton Ti-Cats number 14 that I mentioned, in which the right of personality was first acknowledged by a court. In that case it was called a tort, which means when somebody used his personality without his consent it caused him harm as opposed to him asserting a right, which is kind of a legal distinction. The good news was personality rights were recognized there. Then there's a number big case we'll talk about, the Gould Estate, that sued somebody who put pictures of Glen Gould in a coffee table book. We'll talk a bit more about that later, whether there's a difference between using an image in a coffee table book as opposed to in an ad, let's say for a Steinway piano. In Quebec, Quebec decided to legislate, as it does under the civil law of everything that's codified under the Charter of Human Rights, they have the right put as a right of privacy. There's a bit Supreme Court case that protected the use of somebody's image in a photograph in a magazine as a violation of their privacy. That's a very different basis, especially for athletes, because athletes and celebrities might court publicity and to be in the public eye. So it might be harder to argue that their right of privacy should be preserved by virtue of not using their image in certain contexts. In other Province's there is other legislation that protects privacy but also sometimes goes directly to protect publicity rights in the commercial context of the use of somebody's personality. Next slide, please.
So what are these causes of actions? So I mentioned the tort of misappropriation of personality. That's how it first was framed in that Krouse case. But we've also seen cases that talk about breach of contract. So if you have a contract with somebody that allows them to use your personality or an image of you in a specific context, but not in another, you can always sue for breach of contract. That doesn't help you go after somebody who has never had any contact with you but uses your image anyhow in their ad because, of course, you don't have a contract. As I mentioned, you might be able to go after breach of privacy as well, but query whether if you've courted celebrity you can use that as the basis for preventing or suing somebody for having used your image. An interesting side note on that, I represent a music artist who is quite successful around the world, Loreena Mckennitt, she's a Celtic harpist, and although she's a musician and a celebrity and people know her, she did sue a former employee for putting out an unauthorized biography and she sued in the UK and it went right up to the highest court in the UK, and it was determined that although she is a quote/unquote celebrity because she's a musician in the public eye she had a history of protecting her privacy and being protective of her private life, and so the court found that even though she was a celebrity she could win the case based on a breach of her privacy by virtue of that unauthorized biography. You might be able to go after somebody for defamation but again defamation requires the information to be false. Very often when your image is used in an ad, it's not necessarily defamatory, the image used might be true. It might actually be a very positive light that you're being put in so defamation is not an easy one to frame it under. Unjust enrichment is a cause of action that's used when somebody is enriched at your expense. It's a little bit of a hard one to put it under. Then also common law trademark/passing off. So if somebody is somehow, or an implied endorsement, if your image used in connection with the good or service in an ad, somehow makes the public think that you've endorsed that product, that could be a cause of action as well. Next slide.
So even under Ontario law there's been confusion, as I mentioned in the case law about whether this a tort or it's an actual right that can be enforced. Frankly, in my mind, as long as there is a right to be protected here, whether it's framed as a tort or as a right, it leads to the same end. It may make a difference in terms of the damages that you can go after. We'll talk about that on the next slide. But we've seen courts talk about it as a tort or as an exclusive right to market personality. Next slide.
To have a successful claim you have to prove three elements. One, that there is an aspect of the plaintiff's personality that's being used. So their name, their photo, their voice. Number two, that that element of the personality specifically identifies that person. So as I mentioned in the Krouse case, even though 14 on the Hamilton Ti-Cats jersey was there, the court found, at least in that case, it didn't specifically identify Mr. Krouse. Then most importantly, from the Gould case that I mentioned, this sales versus subject distinction was made. What that case held was that if you use somebody's personality in order to make a sale or in conjunction with sales, in other words in an ad for a good or service, as opposed to as the subject of the work. A subject of the work might be an unauthorized biography, or a play, or a painting of somebody. That's the distinction that was made; that if the personality is being used as the subject of the work that would not be a violation of the right. Whereas it it's being used as a tool to make sales, that of course you have not authorized, that would be a violation of the right. Next slide.
Then what are the remedies? If you can make out the tort or the infringement of the right, however you go at it, what kind of remedies can you get? So there's, again, conflicting jurisprudence when assessing damages. We've seen compensation for what you would have charged or received had you authorized the use sometimes is given as the remedy. Sometimes it's a disgorgement of profits. So even though you might have been paid $1,000 or $2,000 for the use of your image, if that image allowed the defendant to make a bunch of money you might be able to disgorge their profits from the use. And then other cases have found that they've measured the loss of publicity opportunities by virtue of the fact that somebody used your image in an unauthorized fashion. Then, very rarely, you might be able to get an injunction to stop the infringing use, either before it happens or while it's happening. Next slide.
Finally, do rights survive death? So in the US there's statutes, particularly in California and New York, that actually codify that even though you may die the rights to your personality go to your estate for a certain amount of time. In Ontario we haven't had a pronouncement on that. What we do have is this Glenn Gould case where that particular point wasn't determined but the issue at stake happened, the coffee table book that was published, was published 13 years after Glenn Gould's death and the fact that he had been dead for 13 years didn't preclude the claim. So I take that as, in Ontario, you have at least 13 years after death to continue to potentially assert your rights. Next slide.
That's it. Back to you, Claire.
Claire: Thank you, Susan. That was really fascinating, and what I'm going to remind the listeners is if you do have a question, remember you can just put them into the Q&A now, and we will address them at the end. Next we have Ryan Steeves. He's a partner based in Gowling's Ottawa office. He's an IP specialist with experience advising clients on a wide range of intellectual property issues. From enforcement and brand development strategies to complex litigation matters. Ryan has represented clients in contentious IP matters such as copyright disputes in TV and film and technology matters to trademark disputes involving fashion and sports apparel and equipment. Ryan is also no strange to the sports side of things as he is a former NCAA collegiate and professional hockey player. Ryan will be discussing commercial and intellectual property issues including sponsorship and brand conflicts. Over to you, Ryan.
Ryan: Thank you for the introduction, Claire. Those playing days are far, far behind me. In my very brief time this evening, as you see here on the slide, I'd like to discuss all of these issues that surround sponsorship and branding issues that commonly come up, or could come up, for National team athletes or amateur athletes more broadly. My presentation dovetails nicely with what Susan had discussed and that is that personality rights are a protected right to allow athletes to leverage themselves in exchange for sponsorship or endorsement fees. Often the more well known invisible you are as an athlete the more value is attached to your personality image and name. This topic, like almost all that you will hear about this evening, could easily take up at least an hour if not more. So my goal is to go through these with some speed and flag some of these issues at a high level. Sponsorship contracts, endorsement agreements, these types of things can raise some tricky issues. Either from the perspective of an athlete trying to find a partnership or for athletes trying to navigate their rights and obligations under existing agreements. As a general theme I would always say that for athletes I would urge you to consult with your National sports organizations, or others even within your circle, or any advisors you may have working with you, or other counsel such as ourselves, or anyone you may have contacts with to help you navigate some of these issues. Let's go to the next slide, please.
I just want to talk about sponsorship agreements, generally, before we get into the other issues. First, there are different forms of sponsors. There are of course official National team sponsors. Athletes are going to have obligations and commitments to such sponsors by virtue of their simple involvement on a National team. There are also other sponsorships in the form of donations, for lack of a better term. These types of arrangements don't necessarily have corporate obligations on them or traditional advertising duties on the part of the athlete. They're often facilitated directly through an NSO. Then, which is what I'm going to discuss, there are these corporate sponsorships directly with an athlete. Here we're talking about expectations of a business relationship pursuant to a contract. So the first item I have here is Tokyo: Rule 40. An overarching and current development the recent changes to the sponsorship and advertising regime involving Olympic athletes has huge implications. My colleague, Rene, who's going to be coming up next is going to discuss this in detail but, suffice it to say, the upcoming Tokyo Games will certainly push the limits even further than in past Games of how corporate sponsors advertise and market their sponsored athletes before and during the Games. In terms of forms of sponsorship, I'll just note quickly, that there are certainly a variety of different forms of sponsorship ranging from products to services affiliations. As well as a broader brand ambassador relationship and that's what I'll be talking about. These sponsorship agreements, or endorsement agreements, with corporate partners bring some tricky legal issues and each sport may have different rules and regulations that need to be complied with even before entering into some of these agreements. The endorsement parameters of a sporting body may not always align with what the athlete is trying to achieve. For example, athletes should always check with their National sports organizations, or governing bodies, about eligibility rules and obtaining any clearances to engage in their own marketing activities outside of what the National team may be doing. So the critical question to ask is what does your sponsor want out of this relationship that you're pursuing with them? As I mentioned, how does this jive with obligations owing to official sponsors? What about any agreements the athlete might already have in place with other sponsor? A really good example of this is the Michael Jordan example back in 1992, if many of you will remember that. I'm going to talk a little bit about this in more detail in a couple of minutes. But here we had a classic clash between a team and individual sponsor rights colliding on really the biggest stage, literally the stage, wearing Reebok attire as a Nike sponsored athlete.
So, you're an athlete, you've got a corporate sponsor all lined up, what's next? What are the most important considerations when entering into this type of sponsorship agreement? A few of the really key points that I flag, one, being term. How long is this agreement going to run? It really should be timed carefully to provide whatever financial support you require, based on your age, stage, career trajectory. Sometimes it makes sense to leave the door open to allow for a renegotiation, fairly quickly, or you want a more guaranteed longer term deal. This is really going to vary for different athletes. The amounts. You certainly need to consider both the amount that's guaranteed over the term of your agreement. As well as incentive based payments and this is really key. You want general incentive based payments that are tied to wins, top 10 finishes, season rankings, those kinds of things. The more you can negotiate those types of things the better. Perhaps one of the biggest, from a legal standpoint is, what is actually being endorsed? What does the sponsorship entail? You want to be very clear with the sponsor with what they want you to endorse, if anything. If properly defined, and I would say properly narrowly from the perspective of an athlete, this will help ensure that you don't miss out on other sponsorship opportunities. You think, for example, of a protein shake company for instance, wanting the product category to be very broad like food and beverage products. That type of company will want to be very restrictive in terms of what else they let you act as a sponsored athlete in the name of. So this comes up in the terms of exclusivity clauses which I'll talk about. Another issue is termination. How and when can the agreement end? We'll talk a little bit about this under the heading of morality clauses, which is something that's becoming more utilized in recent times and especially 10 to 15 years, they're becoming much more common. The other thing to consider as an athlete, and as organizations advising your athletes and helping them, is what other obligations are included in these types of agreements? What are you comfortable with as an athlete? Here we're talking about appearances, maybe social media expectations, whether there are any built in and product use. Are there any exclusivity carve outs for the type of equipment you can use, or can use, if you're with a particular supplier. But there's maybe elements of your equipment or other accessories that you require to be other manufacturers. These are all key. Let's go to the next slide and we'll talk a little bit about morality clauses.
I won't spend much time on this but just a flag, a morality clause is really something that's worked its way into endorsement and sponsorship agreements. In the last 10 to 15 years, they've been around for quite some time but they've taken up prominence, and this really is just a clause as part of the right to terminate a contract. If it were to be, to use legal terminology, injurious to that party's reputation or image to remain bound by the agreement. We can be talking about the commission of a crime. Here the contract really dictates what is triggered. It can be negotiated very specifically or very generally. You compare a criminal conviction, for instance, on one hand with even an allegation of misconduct on the other. It's really important to strike a balance between whether these clauses are included and how they're drafted. What we're seeing more and more as athletes are providing much more lucrative returns to their sponsors are reciprocal morality clauses. This is to really protect an athlete. As you see on the slide here, a recent example from 2017 where we had the Under Armour CEO endorsing, at the time Donald Trump, and praising him. There was a big backlash from the Under Armour sponsored athletes. Here we have a quote from Misty Copeland, decrying these statements as being contrary to her values and beliefs, as well as all the other athletes who spoke out at the time. These types of clauses should really be thought about, and inserted, as we see tables turning and allowing athletes to assert their values and stand by those. Let's move onto the next slide.
This is what I mentioned earlier, titled Exclusivity in a Sponsorship Deal. This is what product or product category does the contract cover. It's fundamental to almost all sponsorship agreements because it's going to restrict the athlete, at least from the corporate partner's perspective, from offering similar services to a competitor. It can go as far as preventing the athlete from directly, or indirectly, doing anything that is associated with a competitor. That would be on one extreme. It can be drafted in such a way as to prevent an athlete from doing anything for a particular period of time after the sponsorship agreement is over or after a particular event is completed. But defining the scope of really what is covered and not limiting the opportunities of an athlete to engage with certain types of sponsors is important. Here we have, again, two examples on the screen. We have the Jordan example and here we have, for those of you who remember concealing the Reebok logo with the US Flag, and he was quoted after as saying, "I don't believe in endorsing my competition. I feel very strongly about loyalty to my own company." Talk about loyalty to brand. We may not see that with all athletes but here he was adamant about this and went to an extreme to protect that exclusivity. Being completely bound as a National team member to represent one brand. One of the biggest threats, I'll just flag this quickly, the image on the left, and some of you may remember this as well, is one of the biggest threats to sponsorship exclusivity is ambush marketing. 4 years after the Jordan example we had a US sprinter, Michael Johnson wearing these iconic gold track spikes, setting a record and winning Gold in the 400 meter and Reebok was the official sponsor, and so many saw this as sort of a textbook ambush marketing tactic to create some buzz and have brands featured very prominently as an unofficial sponsor. Let's go to the next slide.
I won't spend too much time, although it may be very relevant for some of the athletes who are listening, and this is COVID contingencies. This has really come to the forefront, particularly as we see with the Tokyo Olympics, and the potential for brands really to try to, from their perspective, protect their interests. We're seeing this with cancellations, reduced crowds, in person crowds, decreased earning and broadcast rights, reduced sponsorship payments in some cases. Generally speaking, the brand's exposure has been greatly reduced in comparison to what was expected. Perhaps when they might have entered into a sponsorship agreement at some time prior to all of this happening. Depending on what happens with an event, whether it's a cancellation or a lengthy delay, sponsors may view the value of this impact differently. So one of the key questions that athletes have to think about, and their advisors is, how has the sponsor actually suffered any loss, if they have? Has the partnership still been activated or can it still be activated? Is it entirely reliant on in person crowds? Is there an activation through social media? Through television. Is that going to be impacted? Really what I would say here is renegotiation seems to be the key lately as we do this. If there is a need on the corporate partner's side and to focus on the value and link that to performance and that's a simply term. A good example, recently, was the Euro 2020. I cite this as an example. There was a lot of talk about switching the name to Euro 2021 but with millions and millions of items of merchandise already prepared, and sponsorship and other contracts already in place, there was a real desire to stick with Euro 2020 even though it was taking place in 2021. Similar to the Tokyo Games. Let's go to the next slide.
This is something that I included just of pure interest although maybe on one extreme scale and this is trademark rights as they relate to co-branding with athletes. Really what we have going on here is copyright as well. What we have, and what we see from time to time with very successful and highly visible and well known athletes is, the collaboration with a brand, both brands that is having significant recognition to promote certain products. So this typically involves household names to create a brand association. What you're seeing is creating brand awareness and not simply promoting the brand. What I always think about, from the perspective of a lawyer looking at these, is what happens on termination? What happens when the relationship ends? So we saw that with Roger Fetter. He underwent a change from one brand to the other and had his assets shifted over to the new company. So let's go to the final slide, please.
Here I'll just cite times are changing. Amateur athletes are now seeing the potential to monetize a little more than they have in the past. I note the NCAA is undergoing a monumental shift and hopefully that will be implemented in a really positive way for those athletes. Then we have Rule 40 which is a huge, huge, well potential, to be huge for many athletes. I believe Erica's on the webinar and I just love this quote and I think it's really pertinent. That's it for my presentation. I'll turn it over to Rene to expand and tell you all about Rule 40 which is a great development.
Claire: Thank you, Ryan, and just before we get to Rene let me introduce him. Ryan, I wanted to say that not only was the presentation informative, it was very helpful to the audience. So thank you for that.
Ryan: Great. No problem.
Claire: Next we've got Rene Bissonnette. He is based in Gowling's Toronto office. He has unique expertise in advertising, marketing and entertainment law. Rene frequently writes and speaks on matters of sports and entertainment law and has recently published articles on influencer marketing guidelines and advertising issues during COVID. Rene will be presenting to us today on restrictions on advertising and sponsorship, including IOC Rule 40. Over to you, Rene.
Rene: Great. Thanks so much, Claire, and thanks everyone for joining us this evening. As noted I'll be discussing Rule 40 and, more particularly, the Canadian Olympic Committee Guidelines about its implementation of Rule 40. What is Rule 40? Well, Rule 40 said that athletes can only exploit the name, personality rights and performances at the Games in accordance with principles outlined by the IOC. When we talk about the COC Guidelines, this is the IOC's delegation of the implementation of Rule 40 in Canada, and applicable to Team Canada athletes. So they set out how a sponsor and athlete may run an advertising campaign during the Rule 40 period, in compliance with Rule 40. Although this really only applies to unofficial sponsors, so a personal sponsor of an athlete, that isn't a official Olympic partner. It actually had some pretty broad applications outside of that because it really is a type of ambush marketing. So many of the principles here are generally applicable to other types of advertising campaigns that surround the Olympics. The main thing to consider here about the period is that the Rule 40 period runs from July 13 to August 10. That covers the competition period and extends both before and after it. So there is a complete overlap and also an extension before and beyond that competition period. I put some asterisks here because as we know there's been some discussion about whether or not that Games period will change. Right now the IOC is saying no, it will not, but they've indicated that is subject to further change upon IOC direction. So we'll just have to wait and see but so far the public statements were saying that the Games will go ahead as planned, between July 23 and August 8. Next slide, please.
One of the key requirements outlined in the Guidelines is listed as a notification requirement. So that's to say that the sponsors must submit the advertising campaigns that they're planning to run, to the Canadian Olympic Committee, within their online platform. What's key to submit is an advertising plan. As part of their advertising plan that they want to see is the type of advertising that's going to be run and they also want to see a media schedule. So that's to say they want to see essentially a calendar that also identifies the different timeline for the campaigns that are going to run. We'll see in a second why that's important. All this information needs to be submitted by May 14, 2021. So way in advance. It's coming up quickly so that sort of dovetails what Ryan said and those sponsorship agreements that are currently being negotiated. It's important to consider this because you're going to want to prepare those advertising plans and have them submitted and approved to ensure that they're compliant with your sponsorship agreement requirement. Next slide, please.
So once these materials are submitted to the Canadian Olympic Committee they'll review it and what they're looking at to compliance and approval is two key principles. The first key principle that we're going to look at, on the next slide, is the campaign profile. The campaign profile must not be centered on the Rule 40 period. What that means is that they want to see that your campaign will be running continuously 90 days before the beginning of the Rule 40 period and so the key dates to consider there is April 13, 2021. They do not want to see any type of ramp up as you approach and are within the Rule 40 period. So you consider your different campaign activations on a graph. What they want to see is some what of a smooth line. They really don't want to see any real ramp up when you get close to or during that Rule 40 period because they'll interpret that as meaning that you are just really trying to take advantage of the Olympic Games to draw attention to that athlete and the athlete's performance at the Games. So there are some exceptions to that. The two key ones that we often see is, first off, the product or service that's being advertised is seasonal and the sort of popular or busy period for that key product or service overlaps with the Rule 40 period. So there you can justify that ramp up by saying really this is my busy period and it has nothing to do with the Games. This is just the nature of our business. The second exception that we see is that there's a special campaign or some particular reason why it's ramping up during that time. So, for example, a back to school promotion or something like that. So you really do need to justify that ramp up, if it exists, based on some other factors other than the Games. But there are ways to sort of argue and massage some of that ramp up and justify that to the Canadian Olympic Committee.
On the next slide you'll see the second key principle and that's the advertising must be generic. What the Canadian Olympic Committee is looking for there is that there's no association directly with the Games. So you can't reference an athlete's performance at the Games and you certainly cannot use Olympic IP or content. While we're talking about Olympic IP we have some of the key branding there at the bottom of the slide. In terms of content what we're talking about mostly there is photos, videos or other type of content captured at the Games themselves. When the Canadian Olympic Committee looks at a piece of advertising they really want to see is there any direct reference to the Games such that you really are creating that association with the Olympic movement without having paid for that.
If we look at the next slide, what we'll see is some examples of the way you can and the way that you cannot take advantage that type of advertising. On the next slide, please. On the left you see a type of generic advertising. Here you'll notice that there's no real direct reference to the Olympics or anything that's happening with the Olympics. The closest we'll get here are terms like champion and there's a reference to Olympian but we don't speak specifically about Tokyo 2020. Where over on the right side we see something which is clearly offside for a variety of reasons. The athlete is wearing some Canada gear with a Olympic medal around her neck and on the right side we see in the body copy reference to 'For a big win at Tokyo 2020' so a reference to performance at the Games. Perhaps even if we consider this discount only applies during the Games period well then that would be another type of a flag to the Canadian Olympic Committee to say that there's a ramp up during that Rule 40 period. That is clearly offside for a variety of reasons. You obviously want to stay away from stuff like that. Next slide, please.
Now there's an additional type of advertising which is permitted and this is interesting because it's a different animal than we what we've just discussed in the same set. You are allowed to reference the athlete's performance at the Games. If we look here at the post on the left hand side, there is reference to the athlete winning a medal. But again here there is reference to the performance at the Games but there's no use of Olympic IP itself and that's the key distinction here. While you can reference performance at the Games you cannot directly use Olympic IP or content. So you would not be able to show a photo of the Athlete actually performing at the Games or you couldn't say Tokyo 2020 or something like that. Again, you have to stay generic in that sense. Then you're only allowed one of these posts on social media, as the sponsor, and the athlete is allowed to respond, as you see on the right hand side, with a simple thank you. And, again, no use of IP and no use of real content taken from the Games so this is the athlete training, I assume before the Games, so that's why that's permitted. Next slide, please.
So, again, just some of the key dates to keep in mind. Again, April 13 is when the campaign will be in market and we want to see a smooth ongoing campaign leading up to the Rule 40 period. The notification date there is May 14 and you send in to the OC your advertising plan, with a few examples of the advertising you're going to implement, and also they want to see that media schedule. Then finally during the Rule 40 period, no ramp up during that time, and they really want to see generic type of advertising that doesn't make any reference to the Games themselves or use any of the IP and, again, the key exception there is that congratulatory content, which allowed reference to the athlete and the performance at the games, but not use Olympic IP. There's that one exception and you can post once as a sponsor and one reply to say thank you as an athlete. So there's that limited exception there. In a nutshell, that's the Rule 40 Guidelines that have been implemented by the Canadian Olympic Committee. So we're all very anxious for the Games to get going and just beware of these key dates as you lead up into the Games. Thank you very much. I'll pass it on to Claire.
Claire: Thank you, Rene. Thank you. Incredibly timely and practical information. Thanks for that. Last but not least, our final panelist is Brent Arnold. He's a litigator in Gowling's Toronto office whose practice hones in on cyber security and commercial litigation. Brent heads Gowling's Commercial Litigation Technology group and his broad practice covers data breaches, e-commerce and employment contracts, to name a few. Brent will be talking today about waivers and indemnification clauses. Over to your, Brent.
Brent: Thanks. l do those things but I also sue people and send nasty letters for Susan which is how I get to be part of this. So you've heard how to make money and lots of really good content. It's all very positive. I'm here to bring the negative. To talk to you essentially about how you can contract to make sure that it's somebody else's fault when something bad happens in a sport. Next slide, please.
I'm going to talk about waivers and indemnities and these are standard provisions you will see in a lot of contracts around sports. Whether they're contracts like documents you sign when you want to participate in a sport or use a sport facility or contracts between organizations that rent space agreements, that sort of a thing. What is a waiver? A waiver is essentially, here's an example, Party A releases Party B from any claims Party A [so let's say Party A is the athlete] might have against Party B [so let's say Party B is the sports organization putting on a sport that the athlete's participating in] in a defined set of circumstances. Bottom line is if Party A agrees to this they are prevented from suing Party B even if Party B does something wrong that causes an accident. Frequently used in contracts, as we've said, and also not just contracts you sign. A ski hill, let's say, with a warning on it can constitute a contract. Because if you see that and then you proceed to use the ski hill you've effectively agreed to the terms. Next slide, please.
Indemnities can be a bit different. In an indemnity Party A agrees to compensate Party B if Party B suffers a defined kind of loss that are set out in the terms of the contract. What an indemnity allows the parties to do is allocate risk and say essentially even if this is my fault you won't have to pay me for it. We'll go into a little bit more detail on that shortly. Athletes and participants are often required to indemnify the sports organizations hosting or arranging sports and these are often used by venue owners as well. Who, as you can imagine, have a lot of bargaining power in the negotiation process. Next.
How broad can a waiver be? It can be broad enough to protect the sports organization from law suits by athletes in many circumstances, including the organization's own negligence, if it's done properly. I'm not going to read you this full quote but when you have a chance to look at it later, and you'll get the slides later, what you'll see is the courts are very reluctant to enforce these waivers. In this situation it said the more onerous the exclusion clause is, the more explicit it has to be and enough has to be done to bring the person who's agreeing to it, it's intention to the terms. They need to really understand what they're agreeing to. Next, please.
You don't have to say the word negligence though they usually would. But it's clearly got to refer to what would amount to negligence or the athlete can sue the organization for the organization's negligence in putting on the event. As you'll see in the bold here, any ambiguity, so any part of it that's subject to more than one interpretation or it's not clear, is resolved against the party who's attempting to rely on it. What that means is that the sports organization has been sued by an athlete and says, "Uh uh uh. You agreed to a waiver." If the waiver is unclear and can be interpreted in one of two ways, one that supports the athlete, one that supports the organization, the courts going to prefer the interpretation that favours the athlete, the injured person. So if you're the sports organization, or the arena owner, you have to make sure that these waivers are very clear. They can only cover matters who are specifically in a contemplation of the parties at the time the release was given. So the waiver's going to describe some general circumstances. You can't cover off things that no one could see coming. This is a real problem with pandemics, with COVID-19, as we see people getting sick in a sport as opposed to getting injured. Next slide, please.
So they say it has to be brought to the releasor's attention. Now a court's going to consider things like the format or the length of the waiver. If it's a long contract, and the waiver is buried in it in small print, that's a problem. They have to make sure that the person actually has a chance to read it. You can't just throw the contract under the person's nose and say, "Sign it quickly. Don't bother reading it." It matters whether they read it or not and it matters whether or not the party signing it is competent and that has a specific legal connotation. Are they mentally able to process it? Do they have any mental disabilities? Are they children? Next, please.
It's important that the waiver be brought to the person's attention before they agree to enter into the agreement or to undertake the activity. I'll leave these quotes with you. I won't take them into it but I do want you to appreciate my awesome sign. Next, please.
What do you need to know to make a waiver enforceable? Here's some things that help in the drafting. It's good to use terms of art that are known to the lawyers and stand a chance of alerting the person to how serious it is. Waiver of liability. Release of liability. Assumption of risk. That sort of a thing. You want to make the weasel language that grants the waiver and gets Party B off as conspicuous as possible. So bold it, underline, capitals, italics, different colour, larger font. These are all the kinds of things that you do also in consumer protection contracts. Ways of drawing the person's attention and their eyes specifically to this part of the contract because it's arguably the most important. Use language that's easy to understand by whoever's going to be signing it. Don't use technical legalese if your audience is people that aren't going to have any idea what that means and make the format readable. Headings, sub-headings, separate paragraphs, not one long paragraph that has no breaks in it, as we see in some kinds of consumer contracts. Next, please.
Waivers don't apply to minors. The best you can do is have a parent or guardian sign an assumption of risk form instead. Even there you're going to potentially have problems. Next, please.
This is a duplicate. Let's go to the next one, please. Alright. Indemnities. A waiver says Party A can't sue Party B. An indemnity requires Party A to cover B's legal costs and damages, if Party B is sued by someone else in the course of activity carried out or participated in by Party A. Now you can have different breadths of coverage in an indemnity. A limited indemnity is one where Party A and B are each responsible only for indemnifying claims arising from their own negligence. So if you screw up and the other party is also sued because of it, you have to indemnify them. Intermediate level, Party A is responsible for 100% of liability for its own screw up, or even if it's not entirely responsible. So even if Party B is partly responsible, if Party A is even a little responsible, it's going to carry the burden 100% of the losses and the law suit. Then there's broad indemnity where Party A is going to be liable, even if Party B is the only one in this who's negligent and both parties are sued, and Party A had nothing to do with it. This is the kind of indemnity you end up when Party A has really little bargaining power. Next, please.
I gave you some sample clauses here. Now, here's one that has actually been signed off on by a court. I'll leave you that for you to look at. Just to finish I'm going to show you a couple other ones and I'm not saying that these ones are good or proper. I have no opinion on them but they are ones that you'll see in different kinds of contracts and are pretty representative of what you'll see. Here's a sample indemnity clause for a contract between the City of Hamilton and the Hamilton Ti-Cats in their stadium licence agreement. So I've highlighted the more pertinent parts. You'll see it's very bold. Here's the last one. This is the standard agreement that Curling Canada puts out for its member curling clubs. Again, the bolding I added to this. In its original form it doesn't have that. But you can see how broad and specific at the same time the clause is. You'll also see that this one has been adapted to indemnify for COVID-19 and that's something you want to think about. If you've got contracts sitting out there that are few years old now you should be looking back at them, because a lot of things that have come up in the last few years like pandemics, aren't going to be contemplated by what was put in them. Alright. That was my whirlwind tour which I hope leaves us time for questions. Thank you.
Claire: Thank you, Brent. Love the backdrop, by the way. We do have one question. This question will be directed to Ryan and, Ryan, we only have a few minutes so if you're able to cover this very briefly that would be great. So the question is this: if I am advertising a product on Instagram, or another form of social media, as a part of a sponsorship deal am I required to indicate that the post is sponsored? I have seen some athletes using #ad or #sponsor to indicate a sponsored post. Is this required by law?
Ryan: Right. Okay. Great question. Very quickly, the Advertising Standards Canada and the Competition Bureau both have guidelines and best practices about this. Specifically for influencer marketing. Up as recently as 2020. The suggestion being that you are required to disclose all material connections with a business product or service that you're promoting. So technically the Competition Act provisions could apply. So that said whenever you're sharing on social media I would ask yourself will it be clear to my audience and my followers that I have a quote/unquote material connection with the company that sells the product that I'm displaying. If any information isn't your own personal view, but it's intended to influence any type of purchase or behaviour by your viewers, it should be flagged just to be safe. So we're seeing some sort of, I would call them 'cheeky ways', which is #ad, #sponsor as opposed to explicitly saying I am a sponsored athlete of this company. Hopefully that answers it.
Claire: Okay. Actually another great question has come in, if that's okay, if I can throw this out for a very quick answer, if that's possible. The question is: does an athlete have any choice if he doesn't sign the waiver? Will they be allowed to use the venue or participate in the event?
Brent: Generally speaking, what you'd see is these things are not really negotiable. They're in place to protect the organization, and they are highly unlikely to divert from it, and they're not going to do individual negotiations with individual people. Although, as in many things in life as we saw with some of the earlier examples, some of it may depend on who you are relative to how big the organization is or how important the sport is. But as a general rule, no. The athletes probably have less bargaining power in this than just about anybody. One point that I should make is that an indemnity, waiver, all of these things regardless of which side you are on, is the person who's going to get indemnified or the person who's going to have to indemnify. It's no substitute for insurance. So don't have this in there and just rely on it and, certainly, if it doesn't work in your favour your going to want to have other things in place that protect your interests.
Claire: Thanks, Brent. So if anyone has a follow up question or want to get in touch what should they be doing?
Brent: I'll take that on. You'll have my email address and phone number and so if you have any questions about what I covered, or you just want to talk sue somebody, reach out. I'm always happy to chat.
Claire: Fantastic. So thank you to all of the attendees today. Thank you for coming. I hope you found it as informative and helpful as I did and thank you to our panelists, Susan, Ryan, Rene and Brent. Have a wonderful night everyone. Take care.
Susan: Thank you, Claire. Bye everybody.
Ryan: Thank you.