Image Rights In Football

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The commercialization and rampant growth of football over the past few decades has drastically changed the manner and quantum of revenue earned by professional footballers. Today, football transcends sport and has become a global phenomenon converting the traditional football spectator into a consumer, who supports his/ her their favourite club and players by purchasing their merchandise. Traditionally, footballers would receive a fixed fee for playing/representing their football club and at most, such fixed fee would be accompanied by certain performance-based bonuses. However, the steady increase in the popularity of football globally has resulted in new avenues of earning for professional footballers.

What Are Image Rights?

In the context of football, the expression ‘image rights’ refers to the proprietary rights of footballer’s personality which includes the footballer’s name, likeness, image, nickname, voice, squad number, social media handles, signature and all other characteristics that are unique to the footballer. The expression ‘image’ is not used in the narrow sense but in a wider all-encompassing sense and ‘image rights’ refer to the right to control, licence, exploit and prevent third parties from making use of attributes related to the footballer’s ‘image’.

The High Court of England & Wales has, in Proactive Sports Management Ltd v. Wayne Rooney, defined ‘image rights’ as “…the right for any commercial or promotional purpose to use the Player’s name, nickname, slogan and signatures developed from time to time, image, likeness, voice, logos, get-ups, initials, team or squad number (as may be allocated to the Player from time to time), reputation, video or film portrayal, biographical information, graphical representation, electronic, animated or computer-generated representation and/ or any other representation and/or right of association and/or any other right or quasi-right anywhere in the World of the Player in relation to his name, reputation, image, promotional services, and/ or his performances together with the right to apply for registration of any such rights…”

Image rights may be exploited in a myriad of ways including by way of sponsorships, endorsement/ influencer deals, merchandising, exclusive access/ photoshoots etc.

Clause 4 of the Standard Player Contracts for the English Premier League (“Premier League”), the most popular and highest revenue generating football league in the world, grants the club the rights of use of the footballer’s image in respect of promotional, community and public relations activities of the club, its commercial partners, the Premier League and the Premier League’s main sponsors. In fact, Clause 4.6.1 of the Standard Player Contract provides that the club’s use of the player’s image “…shall be limited to no greater usage than the average for all players regularly in the club’s first team…”. It is pertinent to note that typically, image rights granted to football clubs by a footballer are for the limited purposes set out above. However, in certain circumstances, the club would enter into more comprehensive image rights agreements with the footballer with the intent to exploit the ‘image’ of more recognizable/ influential footballers and greater strengthen the club’s commercial value in certain markets. Illustratively, if Tottenham Hotspur FC were desirous of using the image rights of Heung-Min Son (captain of the South Korea men’s national team) to promote the club in South Korea, they would have to enter into a separate image rights agreement with the Heung-Min Son, to secure the same.

It is also pertinent that footballers, especially more recognizable/ influential footballers, would also have their own personal sponsorships. This would therefore potentially result in a conflict of interest in the event the footballer is sponsoring (in his personal capacity) a competitor of the club’s sponsor. This poses another obstacle for clubs when trying to sign a new player as all contracts relating to image rights must negotiated very carefully, as, there have been instances where a transfer deal has been held up or even collapsed due to the issue of image rights, as was reportedly the case in 2019 when Paulo Dybala’s negotiations with Tottenham Hotspur FC fell through.

Image Rights Company

Today, most recognizable/ influential footballers have their own personal brand and often set up an image rights company (“IRC”), for which they are the sole shareholder/ beneficiary. Footballers set up such IRCs and assign their image rights in favour of the IRC to hold and license the image rights to the relevant football club, brand/ sponsor etc. This enables the footballer to create, enhance and commercially exploit his/ her ‘brand’. IRC’s also offer significant tax advantages for footballers as their total remuneration (paid by the football club) would be divided into two components. One amount would be paid directly to the footballer, attributable to his playing services while a separate amount would be paid to the footballer’s IRC (which is typically taxed at a rate lower than the footballer’s income tax), attributable towards the license to use the footballer’s image.

Image Rights In Video Games

Typically, the licensing of image rights of footballers in video games are negotiated either by football leagues (such as the Premier League) on behalf of all their players or by player unions such as ‘FIFPro’. As per reports, it is understood that the Premier League has agreed a 6 (six) year deal with Electronic Arts (“EA”) for feature the leagues footballers in the video game ‘EA Sports FC’.

In rare cases, footballers and their representatives may directly negotiate with game developers for the licensing of their image rights. The growth of football video games in the past decade has resulted in the image rights of footballers gaining more prominence and footballers are now more aware of the commercial value their image rights possess. This is evident from tweets by popular footballer, Zlatan Ibrahimovic, where he questioned who had given EA Sports the licence to use his likeness in the latest version of its game, adding that neither FIFA (football’s governing body) nor FIFPro (global players’ union) had permission to “make money” through the licensing of his personal image rights. It is important to note that while video game developers would prefer to avoid direct negotiations with each footballer, we may start to see more individual negotiations taking place.

Conclusion

As the value of footballer’s image rights increases day by day, footballers, especially those with leverage, may require that their image rights are not automatically licensed in their current form.

The use of blockchain technology and non-fungible tokens may revolutionise the management of image rights. Footballers may tokenise their digital likenesses insuring more control and additional revenue streams through the sale of virtual collectibles and merchandise.

It is therefore crucial that footballers seek expert tax and legal advice prior to entering into any agreements that permit the exploitation of their image rights in order to mitigate any potential issues they may exposed to due to inadequate legal and contractual provisions to safeguard their interests.

Authors: Aneesh Tendolkar & Malabika Baruah

Lawyers.

Interns and Paralegals.

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