SBJ/April 22 - 28, 2002/Opinion

Ambush threat the real madness in March

As recently shouted in the headlines of SportsBusiness Journal, Host Communications, the sponsorship sales arm for the NCAA, has "moved into big numbers." With top-tier Corporate Champion three-year packages priced at over $100 million, the NCAA is counting on corporate America to invest amounts of, dare I say, Olympic proportions.

The advertising and promotional landscape of the recent March Madness points out a hurdle of Olympic proportions as well.

Disregard, for now, the burning question of what the $100 million gets these potential sponsors. Instead, this hurdle can be reduced to the following simple question: What promotional rights and benefits do I get for my $100 million that my competitor can't get (or won't take) for free? In other words, what can and what will the NCAA do to stop flagrant ambush marketing?

What Host and the NCAA need between now and the 2003 tournament is an anti-ambush effort of Olympic proportions. For unless they can assure potential corporate sponsors of their ability and commitment to deter ambush marketers, March Madness — the jewel of what corporate partners are buying — will remain open season.

The month of March produced numerous clever (and legal) ambush campaigns ranging, tactically, from thematic advertising executions to "Hoop Championship" ticket giveaway promotions. The former included ads for Volvo, airing in CBS' game telecasts, in which cars are "playing basketball" followed by the voice-over: "What do you think — good offense or good defense?" Is Volvo a sponsor of the NCAA? Ask 100 fans who've seen this commercial 100 times.

In my local New York papers appeared a slew of ads not only themed to March Madness, but in some cases literally trampling on trademark right. Ads featured headlines like "March Jetta Madness," "Now THIS is March Madness" for a Chrysler/Jeep dealer, and "March Madness Markdowns!" for a national pool and spa sales company.

Multiply these ads in two local newspapers by the hundreds of newspapers covering March Madness and you have an idea of the height of the hurdle the NCAA faces. If a national pool and spa company can affiliate with and trade off the goodwill of March Madness, why should a company pay $100 million for the privilege to do so?

Then there are the beer companies, who have refined ambush marketing to an art form without running afoul of the law. Coors ran a "Tourney Time" promotion featuring Dick Vitale and awarding a grand prize "Trip for two to New Orleans, LA, April 4-8, 2003." Now, what might that be?

Or take Sam Adams with its print ad headline: "How Will You Get to the Finals?" The "Sam Adams Cinderella Story — Win Tickets to the Ball" is another less-than-inventive yet still legal ambush, made more difficult for the NCAA to fight given the promotion's partnership with Sports Illustrated. If there is one entity a sports property does not want to tangle with over this type of issue, it's the media.

Keebler's clever Final Four assault ("The Big School Duel"), featuring basketball-shaped crackers, logo rights legally secured from 34 premier universities, and an instant-win prize promotion, makes one wonder why any other in this product category would write such a big check to the NCAA for official promotion rights and status without assurances that it can't be ambushed.

As Host and the NCAA begin selling their mega-packages, potential sponsors need to ask how they intend to clean up the current landscape of ambush clutter. The ways in which the Olympic sponsorship movement has, over the past two decades, essentially eliminated ambush marketing are instructive for the NCAA. Unfortunately, such measures may not be usable by the NCAA.

The Olympics' Legal Arsenal — The Olympics' legal clout against ambush marketing is found in the Ted Stevens Olympic and Amateur Sports Act of 1978 and the amendments of 1998, which provide special legal protections unavailable to the NCAA or the major sports leagues. More important than the U.S. Olympic Committee's ability to readily trademark any variety of Olympics-related words, phrases and logos, the act entitles the USOC to sue companies that create even the appearance of an Olympics sponsorship. Show your product on medal stands, use the phrases Gold, Silver and Bronze in your ads, or show five tires in the form of the interlocking rings and you're buying a lawsuit. Because of this invaluable legal clout, the Salt Lake Games were almost void of ambush marketing campaigns.

This broad-sweeping legal protection is premised on the notion that Congress should do all in its powers to protect the Olympic movement, to protect our amateur athletes and to ensure America's chances of victory. A major purpose of the act is specifically to thwart ambush marketing so the Olympics can maximize sponsorship revenue.

Perhaps the NCAA can find a way to piggyback onto the Amateur Sports Act (or get its own act) by arguing that the future success of intercollegiate athletics depends on sponsorship revenue and support from corporate America. This appeal, however, rings a bit hollow against the "USA! USA! USA!" appeal of the Olympic movement.

The Power of PR — The USOC has gotten tremendous results from its "cheer and smear" campaigns, premised on the romantic notion that ambush marketers hurt the chances of America's athletes to compete and win. Could the NCAA make a similar claim that corporate America would positively respond to and accept?

The USOC not only runs ads saluting its sponsors for their support of America's athletes (the cheer), but it also threatens smear campaigns against potential ambush marketers. Companies, and their sports marketing agencies, are loathe to risk seeing the CEO's photo in a newspaper ad under the headline: THIEF! (as the USOC has threatened to do), especially given the USOC's added arsenal of the Ted Stevens Act.

Given the emotional difference between the Olympics and the NCAA, it is questionable if the latter could mount a "Don't Hurt our Athletes" campaign that would resonate with corporate America.

The Contract Platform — The USOC has closed ambush marketing loopholes through many of the contracts it executes. For instance, in order to acquire the Games, a city essentially turns over every potential ambush marketing avenue (billboards, highways, public transportation, etc.) to the Olympic Committee. It has also made the purchase of blocks of tickets a contractual matter, thus putting teeth in its ability to control and punish companies desiring to use tickets in promotions. Over time and with learning from each successive Olympics, it has been able to effectively close the loopholes traditionally found by ambush marketers — loopholes that remain for potential NCAA ambushers.

Fancy monikers like "Corporate Champion" can only get you so much in these times of highly scrutinized sponsorship investments. It's the legal and moral authority to compel ambushers to "cease and desist" in the short term, and the ability to scare companies out of even contemplating such campaigns in the long term, that may ultimately determine the viability of the NCAA's ambitious new sponsorship program.

Unless the NCAA can effectuate some of the above measures, the police force mentality that has become a staple of the Olympics' anti-ambush efforts would be a waste of the NCAA's time. Anyone can find ambush marketing campaigns; stopping them is another matter entirely.

Steve McKelvey (sdmckfam@comcast.net) is an adjunct professor of sports law at Seton Hall School of Law.

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