Constitutional Hill

On the Fifa World Cup by-laws

Two recent events highlight the rather draconian nature of the municipal by-laws adopted by all host cities in order to safeguard the profits that Fifa hopes to make from the Football World Cup in South Africa.

First, news reached me of a women being detained for distributing political pamphlets at the Durban Fifa Fan Fest. Then all hell broke loose when the South African authorities charged two Dutch women with “ambush marketing” over a stunt featuring dozens of fans wearing orange mini-dresses at the Netherlands game. The Dutch women were part of a group who were all wearing bright orange dresses which were sold with packs of Bavaria beer in the Netherlands, allegedly in defiance of FIFA commercial regulations.

Said Dutch Foreign Minister Maxime Verhagen:

It is absurd that the two women have a jail term hanging over their heads for wearing orange dresses in a football stadium. If South Africa or FIFA want to take a company to task for an illegal marketing action, they should start judicial procedures against the company and not against ordinary citizens walking around in orange dresses.

These events highlight the fact that for the duration of the World Cup,  the Municipality of each host city has in effect become the enforcement arm of a private company – Fifa – to protect that private company’s image and profits. The by-laws make clear that “any notices, directives, instructions, regulations, policies or procedures issued by FIFA or the Local Organising Committee (LOC) will be administered and enforced by the Municipality”.

The by-laws prohibit any person from distributing any pamphlets near or in stadiums or fan parks without the prior written approval of the Municipality. A person who nevertheless distributes any pamphlets could be convicted and fined up to R10 000 or six months imprisonment.

This provision seems to impose quite a drastic limit on the freedom of expression of everyone in South Africa. It in effect bans both commercial advertising and any form of political expression in and around the stadiums as well as the fan parks – which are situated on public property. The ban is so broad and all encompassing that I am not sure it will pass constitutional muster.

While limits on freedom of expression may legitimately be imposed to achieve an important purpose like hosting a successful World Cup, I would argue that the ban on all political expression in and around fan parks can only tangentially be connected to this purpose. Because it does not make a clear exception for political expression, it also seems overbroad and hence probably unconstitutional.

Politics should not and does not stop just because 22 men are chasing a ball around a green field in a vast marketing and money making exercise. In fact, as the eyes of the world are on South Africa, social movements and other political players have a unique opportunity to make their voices heard. What better way to do this than to distribute political pamphlets at fan parks?

The by-laws also prohibit any kind of “ambush marketing”. The aim is clearly to protect the commercial interests of Fifa and its sponsors in order to maximize their profits. In the delightful legalise of the by-law, “ambush marketing” is defined as follows:

Ambush Marketing” means marketing, promotional, advertising or public relations activity in words, sound or any other form, directly or indirectly relating to the Competition, and which claims or implies an association with the Competition and/or capitalises or is intended to capitalise on an association with, or gains or is intended to gain a promotional benefit from it to the prejudice of any sponsor of, the Competition, but which is undertaken by a person which has not been granted the right to promote an association with the Competition by FIFA and whose aforesaid activity has not been authorised by FIFA Competition.

This definition is obviously intentionally broad, as it includes any activity aimed at gaining a promotional benefit from the Wold Cup to the prejudice of any sponsor. Whether this broad definition will lead a court to convict the two Dutch women of “ambush marketing” is not so clear though.

The state will have to prove beyond reasonable doubt that the women wore the orange dresses – handed to them for free by the competing beer company – to gain some promotional benefit for the beer company.

If I was the lawyer for the two Dutch women, I would point out that Dutch soccer team plays in orange shirts and that many Dutch soccer fans attend games wearing orange. Surely it would be absurd if the “ambush marketing” ban were interpreted to mean that all Dutch fan were now banned from wearing the colours of the national team at games during he World Cup because a rival beer company is also associated with the colour orange.

The women (and I am sure the rival beer company) will claim that they were merely expressing their patriotic support for their own team and that the dresses were distributed and worn as a sign of support for the national team – not as an attempt to engage in ambush marketing.

In any event, this high handed arrest of the two women has really done exactly the opposite of what was intended as it has given the rival beer company oodles of free publicity. If I was a Dutch soccer fan I would be sure never, ever, again to drink Budweiser Beer. I would make sure to drink Bavaria Beer just to show Fifa and its sponsors what I think of their high-handed tactics.

Hopefully sanity will prevail and the two Dutch women will not be prosecuted. If South African authorities show an eagerness to proceed with the case, it could damage South Africa’s image and would create the impression that we are not the free and democratic country envisaged by our Constitution.

  • unknown

    It was my understanding that when the world cup starts FIFA takes ownership of the stadiums, and therefore it is not public property anymore. FIFA then runs the stadiums. It therefore is invovled in the security gaurd issue, and not the SA government….

    Your are probably right about freedom of speech etc, but surely contractually FIFA are within their rights to do as they please when hosting the FIFA world cup in Africa. The argument here should be that the girls are innocent, as they most likely didn’t know they are breaking a law and therefore shouldn’t be charged, but that the beer company is the one breaking the law, knowningly.

    Also the argument as Prof has pointed out before if im not mistaken, is that FIFA was “given” this right, because we wanted this world cup, above ALL cost, even basics liberties….

    But this is the world I gather…

  • Deloris Dolittle

    Just some added info that might count against Bavaria in this matter and that might not be known to you. The specific dresses are known in the Netherlands to be part of the Bavaria advertising campaign and have even been used in tv commercials for Bavaria. So it is not that they are just any orange dresses in support of their orange team, the dresses are a well known advertising symbol of Bavaria (maybe not here in SAA by in the Netherlands). The two ladies charged are representatives Of Bavaria who were acting on behalf of Bavaria when recruting the other ladies to dress up in the dresses.

    So Fifa might have a stronger case than you think.

    I agree however that Fifa has now handed Bavaria ever more publicity by making such a big thing out of the whole matter as now even more people would know orange dresses = Bavaria Beer.

  • Mike Atkins

    Are the ladies being charged in terms of municipal by-laws, or in terms of trademark law? If the latter, what precisely have they contravened? Also, what disadvantage accrued to Budweiser in the process?

  • Peter L

    “If I was a Dutch soccer fan I would be sure never, ever, again to drink Budweiser Beer.”
    Erm you don’t need to be a Dutch soccer fan in order to make that pledge – you just need to have had the misfortune to have drunk a Budweiser.

    I am impressed with the speed and efficiency with which our Police and criminal justice system are processing and prosecuting Soccer World cup crimes involving tourists, and understand the need for speed (witnesses and victims will be overseas again in a few weeks time).

    HOWEVER, it seems to me that there is the political will to deal with these crimes speedily and effectivly, backed by the resources to make it happen.

    This same will (and resources?) appear to be sadly lacking for all other non SWC related crime.

  • Mpho

    Personally, I have no idea why the Government does not pass a swift law negating the FIFA deal. What can FIFA do? We are already in the Tournament. It’s a piece of nonsense to have people arrested for advertising a product that is in competition with a product that a company paid a fortune to FIFA in order to enjoy a monopoly position. What on earth are we upholding? FIFA Facists must voetsek.

  • Graham

    Limits on freedom of expression cannot simply be imposed “to achieve an important purpose like hosting a successful World Cup”, as you state. You see, a tin-pot law or regulation at local level cooked up by a municipal apparatchik at the behest of a Fifa flunkey is of no force or effect because it is first, trumped by the Constitution which is being violated and, secondly, it contravenes the Competition Act which is also above any such by-law. Thirdly, a cushy scheme cooked up between a private outfit like Fifa and a government at local level cannot contractually simply and arbitrarily be imposed on a third party, namely members of the public. I hope the ladies who were arrested sue Septic Bladder’s arse. As a South African, I apologise to them for this high-handed, illegal and totally disproportionate action meted out by Fifa’s surrogate thugs who are funded by our taxes.

  • Maggs Naidu – maggsnaidu@hotmail.com

    “it has given the rival beer company oodles of free publicity”.

    Great plan.

    Well spotted (and snatched opportunity) by Bavaria Beer!

    2 x R10 000 fines = $millions in publicity.

  • Gwen

    I thought they were being charged under the Merchandise Marks Act 17 OF 1941 which was amended by Merchandise Marks Amendment Act 61 of 2002 to introduce section 15A which provides for “protected events” which are “in the public interest” to be designated. The text of 15A is to be found here – http://www.sa2010.gov.za/sites/sa2010.gcis.gov.za/files/a61-02.pdf.

    The notice designating the SWC was published in the Government Gazette on 25 May 2006.

    Ludicrously, the GG notice specifically contains a proviso protecting “constitutional procurement principles” and BBBEE codes, but is supremely unconcerned with any other constitutional principles.

    The outcome of the case, if pursued, will certainly be interesting. The Dutch government seems to have come out in support of the two women arrested, and it would be entertaining to see it go all the way to the CC. Not likely though. Once the SWC is over no doubt some shabby little deal will be cut in good South African legal tradition.

  • Zoo Keeper

    Prof

    In addition to your comments, which I agree with, I think the by-laws fail at a far more basic constitutional level, before you even get to freedom of speech, expression etc. You may be too many Sections into the Constitution because there’s a failure at the Grundnorm level if you will.

    Your two quotes:

    “The by-laws make clear that “any notices, directives, instructions, regulations, policies or procedures issued by FIFA or the Local Organising Committee (LOC) will be administered and enforced by the Municipality”.”

    and

    “”Ambush Marketing” means marketing, promotional, advertising or public relations activity in words, sound or any other form, directly or indirectly relating to the Competition, and which claims or implies an association with the Competition and/or capitalises or is intended to capitalise on an association with, or gains or is intended to gain a promotional benefit from it to the prejudice of any sponsor of, the Competition, but which is undertaken by a person which has not been granted the right to promote an association with the Competition by FIFA and whose aforesaid activity has not been authorised by FIFA Competition.”

    Shine the light on the problems these by-laws will face, and I believe render them wholly unconstitutional.

    In essence, the Municipalities have legislated themselves into the proxies of a foreign private entity – FIFA or the LOC as both are foreign to legislative responsibility. In order to pass consitutional muster, surely the benefit obtained by limiting the citizens’ rights must be far in excess of their temporary limitation (I assume they are temporary – please correct me?). These benefits cannot be theoretical either and must be concrete here and now in order to be recognised as existent.

    The elected Municipal and legislative arms of government are institutes whose sole reason for existence is the management of the country for the benefit of the country’s citizens. If an organ of State consciously allows itself to become the proxy enforcement arm of a foreign or unelected (LOC) entity (private or otherwise) for their commercial benefit then it essentially no longer acts in a constitutional manner as it is acting against its citizens for the benefit of a foreign party.

    The bylaws and Act may be Constitutionally incompetent as of their very origin and purpose.

    I can’t resist saying it – it would appear that the ANC and LOC believe its only colonialism when somebody else gets the cash!!

    What do you reckon Prof?

  • Maya

    Fifa’s spin doctors must however choose one story and stick to it.
    On the one hand, they claim the Dutchy dresses were part of Bavarian beer gift packs.
    On the other, they are claiming that two BB agents (one assumes the two arrested Dutch girls) jetted into SA and co-opted local girls who have the Dutch look about them to be be part of the crime.
    Which is it?
    “dutch girls found the dresses in giftpacks and brought them along to the world cup”, “the two blondes brought the offending outfits to sa and distributed them to the locals”, or “there was a whole bunch of sa girls who jetted off to europe sometime in the past year and got the dresses in the giftpacks, keeping them until they were recently approached by the dutch agents”?
    the outrage i feel over our courts and justice system entertaining this BS is not pretty.
    Bavaria bo! Down with the beer in the red can, down!

    On another matter.
    I am extremely concerned about the obscene haste with which those 3 African guys were sentenced to 15 years in prison (one of them received a lesser sentence).
    I have no problem with them serving the time if they did the crime, but one has to wonder about the quality of the confessions they made at 11pm on a Friday evening, nary a day after they committed the crime, opting for 15 years behind bars instead of trying their luck with a lawyer arguing their case and opting for all the time-consuming postponements available.
    I imagine if they were citizens of, say, any country that isn’t located in Africa, their authorities would have had something to say about it.

  • sirjay jonson

    Ludicrous. This won’t just backfire on FIFA and Budweiser in the Netherlands, it will backfire world wide. Idiots, not to mention criminal with respect to human rights and freedoms. How dare they. Time FIFA did something for the world with all their billions. They give business a very bad name. Fie on them. You won’t catch me drinking their beer again, as I have for decades.

    Its not everyone who thinks capitalism is the holy cow.

  • Maarten Westermann

    Agreed that the FIFA and South African reaction (arresting the Dutch women and charging them with a crime) is overblown and completely counter-productive to at least FIFA’s goal of protecting Budweiser as its sole beer sponsor.

    Also agreed that you really don’t need this incident to stop drinking Budweiser. Budweiser is like water (quite literally) in the desert–only if there’s nothing else, you’ll have a sip.

    Disagreed on that that means all Dutch soccer fans should now drink Bavaria. Unless you want a severe headache next morning.

    And, most importantly, disagreed that this was an innocent orange dress, worn coincidentally by a group of women in a crowd of orange. Many things strongly suggest that this was a carefully planned and well organized marketing campaign by Bavaria: They’ve tried this before (World Cup 2006 in Germany), the women were recruited in the Netherlands and South Africa for this purpose (and likely well-paid), they operated as a marketing/campaigning group before and during the match, they certainly knew this could get them in trouble as they entered the stadion dressed in different outfits and the name of the company, though small and on the back, was visible and certainly for Dutch people recognizable as a “Bavaria dress”. That at least technically makes this act fall in the definition of “ambush marketing”. FIFA should go after Bavaria, not the women.

  • anton kleinschmidt

    Bravo. As I said elsewhere, most of the time you get it right

  • sirjay jonson

    Ambush marketing rules: a system no different than a form of apartheid

  • deblaar

    Has maya thought of the marketing angle of bavaria.Speedy judtice is not always fair,let us see how this one plays itself out and what potential damage we do to our criminal justice system in the quest to appease fifa

  • sirjay jonson

    Ever hear of compassionate capitalism? Capitalism which is not only designed to make money but to advantage the people. FIFA is disgusting. If you don’t get that, your soul is lacking.

  • Brett Nortje

    “Hello, is that the Competition Tribunal?”

    “Could I speak to one of the team that spanked Tiger Brands over the fixing of the bread price, please?”

    “OK, how about speaking to someone from the team that spanked Arcelor Mittal over steel prices, then?”

    “What? How can they all be out at the same time?”

    “How can they all be at the soccer? Bafana are not even playing today!”

    “How can they be in FIFA’s boxes all day every day? When will they be back?”

    “What? How can the office be closed for business for the duration of the school holidays?”

    “Hello?” “Hello?”

  • deblaar

    ja maya jaa ,i wish and hope that our presiding officers in these fast track courts always remember their only allegiance should be to the values in our constitution,as embodied in their oath of office and not to any other body.i note with concern the comments by politicians justifying these modifications of our law and practice for nothing but narrow and shortsighted purposes.

  • Vuyo

    Hi Pierre and company, (on an unrelated matter) interesting footage of the SAPS being used for party political purposes? Or was Malema warranted (i dont know)?

    http://multimedia.timeslive.co.za/videos/2010/06/malema-sets-police-on-rivals/

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  • anton kleinschmidt

    @ Maarten…..you say “FIFA should go after Bavaria, not the women” I agree entirely, but I believe that FIFA will not directly challenge a major corporate with very deep pockets. Much easier to proceed against two terrified young woman in a foreign country on the pretext that they are being tough and acting in the interests of their sponsors like Budweiser.

    If I were the CEO of Budweiser I would tell FIFA to back off. In the arena of public perceptions it is probably a goal count of FIFA / Budweiser – 0 and Bavaria – 10. Budweiser can turn this around by being magnanimous.

    Another point, do we really want to upset the Dutch people. Thinking back on the past they were very supportive of the struggle and they played a role in rallying global support against apartheid. We should tell FIFA to fight their own battles.

    These woman should simply have been evicted from the stadium

  • wrm

    I made a conscious decision to avoid the stadiums and anything else FIFA like the plague. With SAPS, at least I have some kind of an idea of the law. With FIFA, if you throw up from too much Budweiser and it comes out the wrong colour, you might just end up in jail.

    OK, the fact that I lug a gun around and that FIFA is mortally afraid of me as a result might have had something to do with it :-)

  • Brett Nortje
  • Brett Nortje

    Off-topic, I know. Was just interested in how many of you have R5m lying around the house. We have laws dictating how you store your .38 in the privacy of your home, but not how you store your R5m?

    Anyone else lose R5m and not say a word about it? Now, if you lose that .38 and not say a word about it….

    http://www.nuus24.com/Suid-Afrika/Nuus/Miljoene-verdwyn-uit-polisiebaas-se-huis-20100618

    Nice work, if you can get it….

  • Zoo Keeper

    In addition to my previous post, the whole concept of legislating a temporary “monopoly” might also be challenged on another ground. Surely, if these events are being brought here for the benefit of the citizens, the citizens have a right to exploit the event otherwise they cannot gain any benefit.

    Also, although Budweiser and Bavaria may be competitors, the event is a world-renowned event – you cannot legislate against the world. If a foreign competitor of a sponsor arrives and “hi-jacks” some coverage – not just publicity – during the coverage of the event, is the remedy not for the organisors to sue for payment of the coverage?

    Surely the remedy lies securely within the civil branch of the law and is already catered for?

    There is also the consideration that it is likely that it is contradictory to the Competition Act to legislate these “monopolies”, in which case, does the Marketing Act not create a situation of irrationality?

  • Ricky

    Sorry to somehow change the subject but I would love to know what Prof. de Vos thinks about the bars in Hatfield, Pretoria/Tshwane, who during the world cup are selling drinks to Afrikaans speakers for 18 R and to other persons for 55 R, however with the option for non-Afrikaans speaking South Africans to buy a loyalty card for 50 R and get the same benefit. Would this not be in contravention of section 9 (4), cf. (3), of the Constitution according to which “No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3)” Subsection (3) mentions language.

  • Ricky

    And, like Vuyo, I would also like to hear Prof. de Vos’ view on whether the Police was correct in intervening in the ANCYL Limpopo meeting. I would think (but I am far from an expert) that SAPS would only have a role if there were danger, riots etc. at the meeting, not just if some members were using their freedom of expression to sing, shout etc. If this contravenes ANCYL rules, this would be for ANCYL to discipline, not the police. But maybe I am wrong???

  • Mike Atkins

    Firstly, was the “event” correctly designated as such? (s 15A(1)(b) – in particular the creation of opportunities for small businesses and the previously disadvantaged). What documentary evidence did the Minister have in making the determination? Can it be said that he applied his mind to this?

    Secondly, did Bavaria use a trade mark? I understood that the company name was not prominently displayed. While it may be that the dresses were recognisable as being given out by Bavaria, in the legal sense is a trade mark involved?

    Is subsection (3) an exclusive definition for the use of trade marks, or does it add to what may be commonly understood? If the list is exclusive, then I would argue that Bavaria are not in any way attempting to “associate” themselves with the event, or pass themselves off as sponsors in any way. It is almost certain that they are attempting to gain publicity for their brand, but does their action really fit within the wording of our law?

  • Spuy

    I gues we ve sold our souls to the Devil, haven’t we?…I mean, FIFA is indeed the Devil, isn’t it?….And they are literally in charge of our country, aren’t they?…

  • Robert

    A very sorry case, arresting these girls for wearing an orange dress! It didn’t even have a Bavaria imprint or logo! No matter what, I will definitely drink many glasses of Bavaria before I will touch a single Budweiser! That stuff doesn’t have much of a taste anyway! Except the Chech original of course!

    And by the way: the gam is called FOOTBALL!

  • tim

    I had the same reaction as Mike Atkins, particularly on whether a trade mark was used. I don’t think the Merchandise Marks Act was contravened.

    However, it appears that the 2 are being charged with breach of the regulations to the 2010 FIFA World Cup South Africa Special Measures Act of 2006, which prohibit unauthorised possession of a “commercial object” and “commercial activities” within designated areas. On my reading, the definitions of these terms are broad enough to cover the BAVARIA girls’ conduct (and also cover even the wearing of ordinary branded T-shirts).

  • Maggs Naidu – maggsnaidu@hotmail.com

    tim says:
    June 21, 2010 at 11:07 am

    I reckon that Bavaria pulled a Portia spider trick on FIFA!

    And FIFA were just too full of themselves to recognise that until it became too late.

  • Maggs Naidu – maggsnaidu@hotmail.com

    hahahaha.

    Goliath just got stoned!

    “Charges have been dropped against two Dutch women accused of ambush marketing at the World Cup over their orange dresses, the law firm Bowman Gilfillan, says.”

    Good for Bavaria.

    http://www.timeslive.co.za/business/article514778.ece/Bavaria-charges-dropped

  • Mpho

    What about FIFA’s indemnity by the South African Government against damages claims?

    What about the hospital beds that are being kept aside for tourists being denied to emergency treatment seeking South Africans?

    What about us all bringing an end to this nonsense? It can’t be worth Zuma getting some free seats at the games.

  • adentex

    Hi Pierre,

    You were even quoted in the NRC Handelsblad tonight and thought I should see if I could find you on the internet.

    It is a big thing here in the Netherlands. Apparently the Netherlands wants to host the Worldcup in 2018/2022, but now everybody is realising the draconion measures FIFA expects the host to take, and enthousiasm for this plan is dwindling (luckily, not only because of the marketing rules but FIFA also does not want to pay any taxes).

  • Maggs Naidu – maggsnaidu@hotmail.com

    “The bright orange minidresses worn by a gaggle of young women who invaded Soccer City during the Netherlands-Denmark match on June 14 is to be displayed in the Amsterdam Historical Museum.

    “Museum representative Hester Gersonius said the orange dress represented ‘originality, cheekiness, entrepreneurship, creativity and humour'”.

    http://www.timeslive.co.za/world/article552478.ece/Bavaria-mini-dress-joins-museum

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