FIFA warned of brand backlash over ambush legal action
FIFA should be wary of a backlash if it takes legal action over a supposed ambush marketing stunt at the World Cup, an advertising and sponsorship lawyer has told The Drum.
Nick Johnson, a partner at law firm Osborne Clarke, said football's governing body needs to be "wary of a potential backlash against it and its official sponsors" if it takes legal action against those it claims organised an ambush marketing campaign on Monday.
The news of more than thirty women wearing orange mini-dresses linked to Dutch brewer Bavaria being ejected from the Holland vs Denmark game in Soccer City has spread around the world.
FIFA, keen to protect its lucrative sponsorship deal that guarantees Budweiser exclusive marketing rights within World Cup stadia, today said it had launched legal action against Bavaria.
But Johnson warned this could be counterproductive, giving Bavaria even more free publicity.
He said: "They've ended up basically doing Bavaria's job for them - if they hadn't kicked up such a fuss about it no one would really be noticing this.
"I think FIFA need to be very careful. If they do take it further they risk giving Bavaria more airtime, more press column inches and that's really pretty counterproductive from their point of view.
"On the other hand if they leave it then they are perceived as a soft touch and Bavaria have got away with it.
"They will want probably to pursue things after the World Cup has finished and set a good precedent for the future."
Official beer Budweiser will likely expect FIFA to take action, Johnson said.
"Budweiser clearly won't want its own brand initiatives to be overshadowed by all of this or to be associated with what could be percieved as heavy-handed tactics on the part of FIFA and the local authorities.
"They will no doubt be urging a very cautious line on this one but they do ultimately need their rights to be protected and they have got a legitimate expectation of some exclusivity in terms of their sponsorship arrangements. So, yes, they will be looking for a prudent, cautious approach to enforcement."
As the story continues to rumble on, reports today say two Dutch women have appeared in court in South Africa over their part in the alleged stunt. They were released on bail, according to the BBC.
FIFA said it would not take action against the women involved but the matter would be under police investigation.
There are criminal sanctions under South African law that protect sports events and their sponsors from ambush marketing tactics, Johnson said.
"They have this legislation in place that allows them to designate particular sporting events as protected against ambush marketing, which was clearly invoked for the World Cup, and the police have a duty to enforce that I suppose.
"I think there's an angle around whether it's right that there should be criminal sanctions, quite draconian criminal sanctions, just to protect FIFA's business interests.
"And whether it's an appropriate use of police time and resources when they've got probably quite pressing priorities in terms of public order and public safety that they should be looking after."
In 2006, at the last World Cup in Germany, Bavaria was involved in a similar furore over marketing tactics when Holland fans were ordered to remove their lederhosen provided by the beer brand before entering stadia.
Many fans took it in their stride and watched their country's 2-1 win over the Ivory Coast in their underwear.
But that incident, combined with the fuss at Monday's game, raises issues over what clothing or other items could constitute unauthorised marketing.
Johnson said most fans should be unaffected: the eye-catching outfits on display on Monday, although not overtly branded in Bavaria logos, drew attention because of the sheer number of them crowded together.
"My understanding was that the dresses did have some discreet Bavaria branding on them. And the lederhosen they had in Germany were Bavaria-branded but it wasn't neccesarily immediately obvious. When you see the pictures from South Africa it doesn't immediately leap out at you; it's just a bunch of women in orange.
"I guess FIFA would say the fact that they're all sat together, the fact it appears to be an orchestrated initiative, means that it's a different position from if just one person turned up on their own wearing this.
"They seem to have been at pains to say this doesn't mean you can't turn up at the stadium wearing an Adidas shirt when Nike is the official sponsor or whatever. That's not what is intended.
"I think it is a little bit tricky if the Bavaria brand is not that obvious [on the outfits] if it's really worth them pursuing it."
Budweiser extended its deal as an official World Cup sponsor in 2006. It will be a partner at the next tournament in 2014.