*Written by Pushpam Jha
Introduction
Sports as a whole is a lucrative business as it consists of 3% of the world trade[1]. A large sum of revenue is generated upon the conduction of mega sports tournaments such as the Olympics, FIFA World Cup, ICC Cricket World Cup etc. such revenue generation is done via various means such as sponsorship, broadcasting rights, ticket sales, advertisements etc.
Football being a global sport is quite popular among the masses. FIFA World Cup final 2018 contested between France and Croatia was viewed by almost half of the globe. Hence the majority of footballers are provided with lucrative brand deals and endorsements. The prime example of this is that Cristiano Ronaldo and David Beckham earn more from these deals and contracts than from playing for their club and countries. This is because their face and image have a value which makes them marketable and commercially reliable After these deals have become common and more players are roped in for multiple endorsements, the concept of Image rights is now more crucial.
Image rights refer to the ability of a professional athlete to control the commercial use of his name, physical or photographic image, reputation, identity, voice, personality, signature, initials, or nickname in advertisements, branding, and other media. These rights are significant because they can be licensed to a private organisation for use in the marketplace.
In essence, image rights are the privileges that an owner or individual has to manage, license, and profit from all of their associated personality traits[2]. Names, photographs, autographs, personal brands, trademarks, etc. are all covered by image rights. These rights give the owner the power to permit or forbid a third party from using their name, likeness, or other identifying characteristics. The owner is entitled to compensation for the use of his likeness, name, and images if the use of these rights is licensed to the third party directly by the owner. The monetary worth of the image rights is what drives the market and allows athletes to make monetary benefits.
The Set Precedent
The case of Proactive Sports Management Ltd v Rooney[3] sets out to be a precedent in the case of Image Rights. In this case, Wayne Rooney, the respondent, gave the third respondent corporation the right to use his likeness. According to a contract between the respondents and the sports company appealing, the appellant would get a commission of 20% of the total amount due from any endorsements made by Rooney. In response to the defendant's alleged termination of the contract, the appellant chose to treat that as a repudiatory breach and filed a claim for owed commission.
At trial, the judge ruled that the agreement violated the theory of restriction of commerce because it severely restricted Rooney's ability to use his earning potential over an extended period of time. As a result, the agreement was void. On appeal, the appellant claimed, among other things, that because Rooney's trade was as a football player and the agreement addressed commercial sponsorships, which were a way to earn additional money, the arrangement did not engage the restraint of commerce concept. Therefore, rather than limiting his earning potential, the agreement benefited from it.
Even while the utilization of image rights was almost always going to be a side business to other ventures, the Court of Appeal found that it was just as deserving of protection under the rule of restraint of trade as any other occupation. The length of the agreement, the circumstances surrounding its execution (such as the lack of legal assistance), and the practical challenges for termination all contributed to the agreement's departure from the norm of a regular commercial contract that restricted a party's business activities. As a well-known result of a ruling that the contract was an obstruction to commerce, a party's withdrawal renders a contract unenforceable.
Ownership of Image Rights
Footballers Zlatan Ibrahimovic and Gareth Bale made news in November 2020 when they protested the usage of their names and images in the FIFA 21 video game. FIFA is a line of football video games produced by EA Sports for the uninitiated. It has been present for many years. Famous football players Zlatan and Bale played for AC Milan and Tottenham Hotspur FC, respectively.
EA Sports responded by stating that they collaborate with numerous leagues, teams, and people to obtain the necessary rights and licenses. The fact that FIFPro collaborates with licensors to negotiate contracts favoured by players and their unions was also addressed.
The Curious Case of Paulo Dybala
Before using a player's image for commercial purposes or signing them, football clubs who are interested in doing so must first acquire an image rights agreement with the relevant parties. In the game of football, selling a player's image rights to a third-party business is not wholly rare, although it is still not particularly popular[4].
In 2019, Argentine Football star Paulo Dybala was approached by Premier League clubs, namely Manchester United and Tottenham Hotspurs for an apparent transfer. The deal fell out and couldn’t happen because the player’s agent requested a 13.7-million-pound payment for the purchase of image rights from a third party, who owned his image rights.
It would be challenging for a club to utilize, for example, Harry Kane's picture with the bulk of the club's commercial partners without a separate image rights deal in place because it is typically not authorized under a player's standard employment contract. Furthermore, since Harry Kane is more recognizable in foreign markets than, say, a member of the first-team squad, the club's corporate partners are likely to want to exploit his image more.
Therefore, it is essential for Spurs to enter into a separate agreement with the player through an image rights arrangement in order to control the rights to endorse specific products and services if they wish to use the player's image across a variety of sponsorship opportunities. According to reports, there is a problem with the Dybala case since typically a player controls his image through a company, and the club enters into a contract with the player's firm. With the transfer of Dybala, it doesn't seem that was the case[5].
Conclusion
In the past ten or two years, the sports sector has experienced a significant commercial boom. An athlete has the chance to profit financially from their name, image, likeness, autographs, logos, etc. by licensing their image rights. Although it is a threat and needs to be addressed, unauthorized use of picture rights. Other than the United States and a small number of European nations, no other nation has a system in place that can offer relief to its athletes. The rights to images from sports are extremely lucrative. Due to the high stakes involved in both the financial and sporting arenas, they require specialized care to assure their legal protection.
*The author is a law scholar from Symbiosis Law School, Noida.
(The image used here is for representative purposes only)
References:
[1] https://www.wipo.int/ip-outreach/en/ipday/2019/understanding_sports_image_rights.html [2] https://www.jessieengelhart.com/post/publicity-rights-of-an-athlete-a-paradigm-shift [3] [2011] EWCA Civ 1444 [4] https://www.qualityoracle.com/juventus-striker-paulo-dybala-resolves-image-rights-dispute/ [5]https://www.goal.com/en-gb/news/what-are-image-rights-in-football-how-did-they-affect/1drdzc2ljhxhyz7goamk1q01l