The Hidden Cost of Olympic Contracts

Commercial Speech and Athlete Rights

By Peter Carlisle
May 11, 2024

In the months leading up to the Olympic Games, athletes are inundated with contracts prepared by USOPC lawyers—forms, releases, licensing agreements—and presented as administrative formalities. These documents are uploaded to the USOPC’s online Athlete Marketing Platform (AMP), where athletes are asked to review and sign them digitally.

But here’s the problem: very few of these agreements are reviewed with athlete interests in mind.

The two bodies created to safeguard athlete rights—the Team USA Athletes’ Commission and the Office of the Athlete Ombuds—are not involved in reviewing these documents. And for individual athlete representatives, gaining access to them is often so delayed that meaningful negotiation becomes impossible. By the time any concern is raised, most athletes have already signed, and the USOPC expresses reluctance to entertain changes, citing a need for uniformity among athletes.

The result is a dangerously lopsided process—one in which athletes are nudged to sign away valuable rights under vague legal language they’re told is routine.

The Illusion of Simplicity

The legal effect of contractual language often differs significantly from its common-sense meaning. Lawyers typically parse through and negotiate such language to ensure mutual understanding. But when one party—in this case, the athlete—is pressured to sign without the opportunity for informed review, review problems arise.

A telling example is the recurring clause: “promotion of the Olympic and Paralympic movements.” This phrase appears in several key agreements, including the Media Summit Release, the West Hollywood Shoot Release, and the Paris ’24 Licensing Agreement.

While it may sound benign, it carries enormous legal and commercial implications.  In discussions surrounding the “Making Team USA presented by Xfinity” program, the USOPC claimed that this clause authorizes them to use athletes’ names, images, and likenesses—without permission or compensation—so long as the usage promotes the Movement, even if it also benefits a sponsor commercially.

In essence, the USOPC argues that any commercial use can be excused as noncommercial if it includes a noncommercial element. By that logic, virtually no commercial use would ever require athlete compensation. The result: athletes are stripped of their most valuable independent asset—their publicity rights—by the very organization that claims to support them.

The Michael Jordan Case: A Legal Reality Check

This issue has already been tested in court. In the 2014 case of Jordan v. Jewel Food Stores, NBA legend Michael Jordan sued a grocery chain for running a full-page ad congratulating him on his Hall of Fame induction. Jewel argued the ad was “noncommercial” speech protected by the First Amendment because it didn’t explicitly sell a product.  

The court disagreed. It held that brand promotion is still commercial speech, even if no product is explicitly being sold. The ad “had an unmistakable commercial function: enhancing the Jewel-Osco brand in the minds of consumers.”[1] As the opinion noted:

To pick a current example for illustrative purposes, think of the television spots by the corporate sponsors of the Olympics. Many of these ads consist entirely of images of the American athletes coupled with the advertiser’s logo or brand name and an expression of support for the U.S. Olympic team; nothing is explicitly offered for sale. […]To say that the ad is noncommercial because it lacks an outright sales pitch is to artificially distinguish between product advertising and image advertising. […] Classifying this kind of advertising as constitutionally immune noncommercial speech would permit advertisers to misappropriate the identity of athletes and other celebrities with impunity.[2]

This ruling directly undermines the USOPC’s rationale for programs like “Making Team USA Presented by Xfinity,” a sponsorship initiative clearly designed to boost Xfinity’s brand through its association with Olympic athletes.

The USOPC’s Shift—and its Spin

After pushback, the USOPC privately conceded that the Xfinity campaign does constitute commercial speech and therefore requires athlete permission. But instead of offering compensation or meaningful opt-in choices, the USOPC issued new “guidelines” and produced an “educational” video to convince athletes that such uses should still be viewed as noncommercial in spirit.

This maneuver is troubling. It suggests the USOPC is creating a parallel set of definitions—not grounded in law but manufactured through policy guidance and internal messaging—to sidestep legal obligations. It’s a clear example of institutional power being used to minimize athlete rights, rather than uphold them.

Appropriation Without Representation

Labeling anything that “promotes the Movement” as noncommercial constitutes appropriation without representation. Most Olympic hopefuls:

• Do not receive salaries from teams or leagues;
• Have no collective bargaining agreement or union;
• Lack consistent individual representation.

Meanwhile, the USOPC—though it receives no government funding—generates hundreds of millions of dollars in revenue, much of it driven by athlete visibility. Yet only a fraction of that revenue reaches athletes as direct funding.

The USOPC rationalizes this imbalance by pointing to the “opportunity” athletes receive through visibility and claiming that revenue “supports” athletes indirectly. But this conceals a fundamental truth: Publicity rights are property. When used commercially, they must be licensed and paid for—especially when those rights represent an athlete’s only viable means of securing funding independently.

Conclusion: Reform Is Urgent

The USOPC’s expansive interpretation of “noncommercial” usage is both legally dubious and ethically fraught. As the Jordan case made clear, brand-enhancing speech—even without a sales pitch—is commercial speech. Mischaracterizing it allows institutions to profit while athletes remain underfunded and overexploited.

To restore balance, the USOPC must:

1. Subject all athlete-facing agreements to independent review by the Athletes’ Commission and the Ombuds Office.
2. Provide opt-in commercial compensation for programs that use athlete publicity rights for brand-enhancing purposes.
3. Recalibrate executive performance metrics to reflect athlete funding and support—not just revenue growth.

Olympic athletes train for years, often with no guaranteed income and minimal support. Their publicity rights are their most valuable commercial tools. Those rights should not be the hidden cost of participation. It’s time to stop treating athlete value as a free commodity—and to start recognizing athlete rights as the foundation of Olympic integrity.

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[1] Jordan v. Jewel Food Stores, Inc., 743 F.3d 509, 518 (7^th Cir. 2014)

[2] Id. at 520.