Thursday, May 21, 2009

London 2012: athlete image rights

 Top British athletes are to meet with UK Sport and the British Olympic Association (BOA) to try to settle a potential dispute over the use of their valuable image rights. UK Sport wants athletes to sign a contract to be part of a sponsorship scheme to cover a £50 million shortfall in the government's £300 million funding package in connection with the London Olympics in 2012.
The scheme is designed to bring in private investment and would require athletes to promote its commercial partners. But athletes are concerned that the deal could affect their exploitation of their individual image rights with other companies and firms.
UK Sport has responded to these concerns by claiming that any work required will not compromise private deals; and is hoping to discuss the matter with the athletes and their agents as soon as possible, to put a stop to any potential row breaking out between them. All 1,400 publicly-funded athletes must agree to the terms to qualify for UK Lottery Grants, but there are believed to be around 80 athletes who are opposing the proposed scheme.
A UK Sport representative has remarked in general:
"The majority of athletes have not had any questions over this, and we are committed to finding resolution with those that have".  
Currently, athletes who receive Lottery Funding, are required to give up three days each year for promotional activities, and UK Sport insists that the new arrangements will not significantly increase those demands.
"The three days we are asking for is on the back of the very substantial public funding being invested in the athletes already, and we would not want to have to consider that investment," he added.
BBC sports news correspondent, Gordon Farquhar, has explained that the deal has been put together to try to fill a shortfall in funding ahead of London 2012 and adds:
"The Team 2012 initiative is designed to bring in private sector investment to plug a £50 million funding hole. It's hoped that it will develop into a significant funding stream in the future for elite sport."
But private companies are concerned that the new sponsorship scheme could devalue their deals with the individual athletes that they are sponsoring by putting conflicting pressures on them. In other words, diluting their valuable image rights for which not insignificant sponsorship fees have been paid.
UK Sport hopes that the situation can be clarified and any misunderstandings ironed out in an explanatory meeting with the athletes concerned. Furthermore, UK Sport justifies its plan in the following terms:
'Team 2012 is a crucial part of the fundraising for elite sport and it needs everyone involved to get behind it. It is a new approach, and it is not surprising that some higher-profile athletes want a better understanding about what it means for them. But it also offers a real opportunity for sponsors to help support the whole mission through to 2012. It would be disappointing therefore if that meant we did not have a positive response from athletes, and we believe that once the issues about it have been fully discussed there will be a much better understanding.'
This spat between top athletes and UK Sport is a classic clash that crops up, from time to time, between the commercialisation and exploitation of individual athletes' image rights and the use of them to promote wider group interests - in other words, collective exploitation of their image rights. As usual, it is a balancing act between competing interests and a fair compromise, therefore, needs to be found. It is, in certain respects, analogous to the exploitation of footballers' image rights on an individual basis compared with their exploitation on a team or collective basis. So, perhaps a compromise in the athletes' case can be reached along the lines of clause 4 of the standard English Football Association Premier League Contract of Employment (FAPL Contract), which was introduced at the start of the 2003/04 season to deal with this kind of potential conflicting situation and seems to be providing, in practice, a suitable and workable sharing of the image rights of players in a so-called 'Club Context' (as defined in the clause) and in their individual context. Apart from all these arrangements, footballers are allowed to have their own boot sponsorship agreements and goalkeepers their own glove deals with sponsors who are not team sponsors and to wear the corresponding branding, which would otherwise conflict with the team branding.

Ian Blackshaw Sports Lawyer
TMC Asser Instituut International Sports Law Centre, The Hague

For further information and comment on the detailed provisions of clause 4 of the FAPL Contract and their application, and, in particular, sub-clause 5, which deals with a player's general freedom to conclude individual image rights deals outside the scope of clause 4 generally, see 'Sports Image Rights in Europe', Ian S Blackshaw & Robert C R Siekmann (Eds), 2005 T M C Asser Press, The Hague, The Netherlands, ISBN 90-6704-195-5, at pp 338 - 343.


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