Introduction
In the context of modern sports, athletes’ image rights are becoming essential and are increasingly being included in contracts alongside sports performance rights. There is no single way in which the exploitation of image rights is regulated, and things vary greatly from sector to sector and country to country. Before addressing our analysis, we want to mention two recent episodes that have made quite a noise and that make us understand how the issue is not simply legal, but invests the relations between companies, federations, teams and and athletes.
The first case concerns the Norwegian skier Lucas Braathen, winner of the Special Slalom World Cup in the season that just ended. An absolute talent, who shocked the sky world by announcing a few months ago his retirement, at just 23 years old. The reasons were not related to serious injuries or the announcement of health issues, but to the Norwegian ski Federation’s ban on signing agreements with sponsors other than those identified by the Federation itself. This was a very strict choice, which in the past had also caused tensions with other major champions such as Henrik Kristoffersen to Johannes Hoesflot Klaebo. Braathen therefore felt profoundly restricted in his freedom to manage his image and therefore – in addition to possible other unstated reasons – decided to retire.
Changing sports and moving from skiing to football, some clubs are more careful than others in managing these rights. Indeed, if it is quite common in the world of Formula 1 or even in the world of entertainment to assign or licence individual image rights to one’s employer, in football this happens less often. A typical example of systematic acquisition and management we find at the club SSC Napoli, which requires its footballers to assign their image rights in full with rare exceptions, as in the case of its most important player Victor Osimhen, who is linked to the Nike brand by a pre-existing agreement. This is an approach that, again, has had very concrete repercussions both in the positive, with projects related to exploiting the notoriety of its athletes even off the field, and in the negative when the request led to the end of some football market negotiations precisely because of the failure to reach an agreement on the issue.
Image and sport have therefore become so inseparable over the years that it is impossible to think about sports law matters without including athletes’ image rights.
Indeed, sport is not simply a physical activity in which athlete or teams compete to win events; it is also since ancient times, but especially nowadays, a type of entertainment which generates massive amounts of spectators live, via old or new platforms or even in the metaverse.
The globalisation of sport, in particular through its broadcasting and marketing campaigns beyond the sports venues, has simply accentuated this phenomenon. It has enabled athletes to acquire a significant recognition at all levels that some of them have decided to market in order to procure additional financial benefits.
Starting from these insights, we decided to develop a post that tells the legal nature of athletes’ image rights and how athletes’ images can be exploited. As always, we will approach the topic from a transnational perspective, exploring the current legislation in Switzerland Spain, France and Italy.
The concept of image
Before getting to the heart of the matter, it is first necessary to delimit what the term “image” means and covers.
The image refers to the physical representation of a person but also more broadly to everything that makes this person identifiable.As Professor Kamen Troller rightly wrote, a person can be identifiable through their name (“written verbal identification”), their voice (“acoustic identification”) and their picture (“physical bodily identification”).[1]
The concept of image thus includes, for example: the pictures, the features, the figures, the appearance, the name, the voice, or the signature, among others.
This individual image that everyone has is then combined, for athletes and sportspeople of a certain level, with their performances as they are perceived by the public to create a “commercial asset”.[2]
The nature of “image rights”
The image right has a dual and hybrid character.
On the one hand, image is above all an attribute of personality and thus falls within the scope of personality rights, inherent in human nature.
In this respect, the Swiss jurisprudence deems that image rights are in fact a subcategory of personality rights[3] which benefit from the protection of article 28.1[4] of the Swiss Civil Code (“any person whose personality rights are unlawfully infringed may petition the court for protection against all those causing the infringement”).
Likewise, in French and Italian law, the image right is based on articles 9[5] and 10[6] of their respective civil codes which protect the right to privacy.
In Spain, under this first scenario, the self-image right (“derecho a la propia imagen”) is deemed as a fundamental right guaranteed under article 18.1 of the Spanish Constitution, and further developed through the Organic Law 1/82 of 5 May (LO 1/1982), protecting the facet of this right as a very personal right, linked to the right to privacy.
On the other hand, in addition to its extra-patrimonial nature, the image has also acquired a patrimonial aspect: it may be seen as an asset or an object of property, which most often results from the notoriety of the person concerned.
In this sense, the French judges ruled in particular that “image rights, which include attributes of a proprietary nature, may validly give rise to contracts that are subject to the general system of obligations and are not governed by specific provisions of the Intellectual Property Code governing copyright“.[7]
More recently too, the Swiss Federal Tribunal accepted that right to one’s own image can be the subject of contractual commitments,[8] thereby authorising his assignment.
Italian law goes further because, unlike French law for example, it gives images protection under the aegis of copyright through articles 96 and 97 of the law N. 633/41 related to the “Protection of copyright and other rights related to its exercise”.
In Spain, the animus lucrandi of a person towards his image is not protected as a constitutional or fundamental right, but protected under the ordinary legal ambit as a “publicity right”, which means the right of each person to control the commercial exploitation of his or her own identity.
The Spanish legislators deemed the self-image as a creation of the owner himself, so an illegal use of someone´s image could be treated as an attack at the author´s intellectual property[9], trademark[10] or patent[11].
The consent: an essential condition for the exploitation and use of images, but with some limits
As it is an attribute of personality, the image may only be used and exploited with the consent of the person concerned.
This is clear from article 28.2 of the Swiss Civil Code, which states that an infringement of personality rights is unlawful unless it is justified by the victim’s consent. This is the case in particular if a “person is photographed (or represented in any other way) for themselves without their consent, or if an existing image is published without their consent”.[12]
French law also follows the same logic:[13] “Everyone has an absolute and exclusive right to his or her image and to the use made of it”[14], any use, even repeated use, of the person’s image is therefore subject to the person’s consent[15], including famous people and therefore athletes.
Similarly, Italian law considers that “a portrait of a person may not be exhibited, reproduced or marketed without that person’s consent”.[16]
Spanish legislation follows the same line as the one of its neighbours’, as in article 2.2. of LO 1/1982 it states that “the existence of unlawful intromission in the protected area will not be considered when it is expressly authorized by law or when the owner of the right has given his express consent to that effect.” Moreover,article 7 of LO 1/1982 confers on everyone the right to prevent third parties from reproducing by any means his physical image without authorisation subject to certain exceptions, which are established in the following article 8, as explained below.
However, although athletes normally retain their personal rights and the right to their privacy, they must accept certain limitations to their consent linked to their activities and exploitation of their image rights.
These limits may take the form of publishing the athlete’s name in the results or taking a photo or even a video of the athlete at a certain event.
More generally, these limits will be reflected in the public’s right to information. This exception is expressly provided for in article 28.2 of the Swiss Civil Code.
In this sense, French law considers that by entering a competition each athlete gives his or her de facto consent to the broadcasting of the image of his or her sporting performance, the rights to which are legally allocated to the event organiser[17].
Nevertheless, this right to information is not absolute. If the publication is made by the press, its interest in informing the general public, which also involves illustrating the verbal report with images, will have to be carefully balanced against the individual’s interest in guaranteeing the integrity of his or her person[18].
On this matter, Italian law is particularly precise as it establishes a list of cases in which the consent of the individual is not required by putting in the same time safeguards in place:[19] “The consent of the person portrayed is not required when the reproduction of the image is justified by the notoriety or public office covered, by the need for justice or the police, by scientific, educational or cultural purposes, or when the reproduction is related to facts, events, ceremonies of public interest or held in public. The portrait may not, however, be exhibited or put on the market if such exhibition or putting on the market would be detrimental to the honour, reputation or even decorum of the person portrayed.”
This basically means that for famous persons as athletes, the absence of consent will be valid but subject to two conditions: the reproduction must be linked to facts of public interest or must take place in public.
In turn, the Spanish legislation as well provides at article 20 of the Spanish Constitution some of these cases where the consent of the right holder is not needed, which is when generally linked to the rights of information and freedom of speech. Also, as stated above, Article 8 of the LO 1/1982 establishes as well some exceptions in which someone cannot prevent the reproduction of its physical image: a) reproductions that possess the support of the authorities, or where there is an historical, scientific or cultural interest, b) if the image captured corresponds to a public figure when they are in a public act or space, c) caricatures, or d) images where the figure of the person appears in an incidental or secondary form.
Notwithstanding the foregoing, whatever the applicable law, the athletes may always object to the use of their image for commercial purposes where they have not consented to such use and seek compensation to obtain damages.[20]
This goes hand in hand with the legal concepts whereby, as the image is a specific attribute, the athlete’s consent to the assign and use of the image must be special. This means that it must have a specific purpose.
The image may not be used in a context for a purpose other than that for which the consent was given. In this respect, French jurisprudence requires that the duration of the exploitation/assignment, its geographical scope, the nature and type of media/supports, and the excluded contexts be clearly specified[21], as global and absolute assignment agreements of one’s image are null and void.[22]
In the same way and more globally, the athlete’s commitments must not be excessive, as per article 27 of Swiss the Civil Code.
Which and how athletes’ images can be exploited and used
Images of athletes can be used and exploited by a whole range of natural and legal person, either directly or indirectly: the athlete himself, the sports agents, clubs – teams – sports companies and associations, sports federations, image rights companies, sports event organizers, sports equipment manufacturers, manufacturer of goods and provider of services, film producers, advertising or public relations entities etc.
It is not rare that athletes, at the moment of signing their contracts with their clubs or teams, define the use of their image rights or grant the rights of exploitation of their self-image, be it alone or with the ones of other teammates.
The use of a sportsperson’s image can be made under various types of contracts which normally do not fall into any particular legal category, as they include some features of named contracts and some elements of so-called unnamed contracts (such as licences).[23] That is why these contracts are most often governed by contractual freedom.
For instance, if done through the athlete’s employment contract signed with the club or team, the exploitation of the image of the sportsperson is often divided into two categories:[24]
- The associated image, which is defined as the image of the sportsperson associated with the distinctive signs of the club or team. In turn, it contains the collective and individual associated image.
The associated image is said to be collective image when the number of athletes whose image is reproduced exceeds a certain threshold, which is often defined by a collective agreement.[25] In such case, this type of image normally belongs to the employer, which decides whether to use the collective associated image on any medium or by any means, for its own benefit or that of its partners. Next to such image, we find also the individual associated image when the number of persons granting the use of their associated image does not reach the aforementioned threshold.
As to Spain, it is interesting to note that, inclusively in situations where players have not granted the right of exploitation of their image to the club, repeated jurisprudence admits that when a worker integrates into a business organization, he/she can find their fundamental rights modulated if the object of the work contract requires it. The object of the work contract, in the case of athletes, is none other than to participate in the sport events as members of their team, so that, in this case, it is understood that the use of their image during the course of such an event is an inherent part of their labour contract.
- The individual non-associated image, i.e. the image of the athlete that in no way refers to the distinctive signs of the club or team (such as its logo, colours, trademarks, emblems etc.).
This type of image may, however, be subject to certain restrictions, such as an obligation on the sportsperson to provide information to the club about the type of partnership the athlete is going to enter and a ban on contracting with companies that may be competitors with the club’s or team’s sponsors and partners.
The athletes’ image may be also used or exploited through sponsorship contracts, which are agreements where one party (the sponsor) pays the other party to the agreement (the party being sponsored, the athlete) a sum of money or something of value to finance the latter’s activities and the sponsored party, in turn, carries out its activity using the name, brand or symbol referring to the sponsor.
The use of a sportsperson’s image can take the form of a licensing or merchandising agreement where the fame of a sports personality is exploited to sell products and services.
It can also take the form of an endorsement agreement whereby the athlete undertakes to use and wear certain sports equipment during his professional activity or any activity that may be linked to his status of an athlete.
The use and exploitation of image rights by contracts, under Swiss case law, allows for the insertion of compensation clauses in the event of early termination due to just cause.[26] These are usually cases where the behaviour of the athlete legitimates the sponsor to terminate the contract and vice versa (e.g. doping, sports betting, criminal offences, violation to the name or reputation of the athlete or of the brand etc.).
Freedom of the parties in setting their commercial arrangements normally allows the contracts to have different types of remuneration for the athletes: flat rate remunerations, a proportional remuneration based on the proceeds from the commercial exploitation of the image, usually in the form of royalties, bonuses for certain achievements that may give the counterparty higher visibility etc.
Conclusions
We have come to the end of this post devoted to athletes’ image rights, a crucial aspect of contemporary sports law that requires careful and specialized handling.
Through our practical experience we have assisted athletes, clubs and specialized companies in negotiating agreements related to image rights as well as in the eventual pathological phase that follows.
This field requires not only an in-depth understanding of national legislation, but also special attention to the specificity of each athlete and strategic assessment of market opportunities.
For more information or personalized advice on these issues, please do not hesitate to contact us.
[1] Sports Image Rights in Europe, TMC Asser Press La Haye 2005, and the chapter concerning Switzerland appearing in this book written by TROLLER KAMEN, Chapter XVII: Switzerland, p. 301 ss.
[2] Idem.
[3] ATF 136 III 401.
[4] The name is specifically protected under article 29 of the Swiss Civil Code.
[5] Article 9 of the French Civil Code : “Everyone has the right to privacy. The judges may, without prejudice to compensation for the damage suffered, prescribe any measures, such as receivership, seizure and other measures, which may prevent or put an end to an infringement of privacy: these measures may, if there is an emergency, be ordered in summary proceedings. »
[6] Article 10 of the Italian Civil Code : « Where the image of a person or of the parents, spouse or children has been displayed or published outside the circumstances in which exposure or publication is permitted by law, or to the detriment of the dignity or reputation of the person or of those relatives, the court may, at the request of the person concerned, order that the abuse cease, subject to compensation for damages. »
[7] CA Paris, 10 Sept. 2008, D. 2008, p. 2985; see also Cass. 1 civ. 11 Dec. 2008, no. 07-19.494 & Cass. 1 civ. 4 Nov. 2011, no. 10-24.761, J).
[8] Already quoted ATF 136 III 401.
[9] Regulated under Real Decreto Legislativo Nº 1/1996 de 12 de abril de 1996, y modificado por el Real Decreto-ley Nº 6/2022, de 29 de marzo de 2022
[10] Regulated under Trademark Law of 17/2021 of 7 December.
[11] Regulated under Patents Law of 24/2015 of 24 July.
[12] ATF 147 III 185
[13] “An infringement is unlawful unless it is justified by the consent of the person whose rights are infringed or by an overriding private or public interest or by law”.
[14] CA Paris, 1re ch., sect. A, 14 juin 1983, SARL Sipa Press c/ Smet et autres.
[15] TGI Paris, 1re ch., 1re sect., 28 juin 2000, D. 2001, p. 2077.
[16] Article 96 of the law N. 633/41: “A portrait of a person may not be exhibited, reproduced or marketed without that person’s consent, subject to the provisions of the following article”.
[17] Article L. 333-1 of the French Sport Code.
[18] ATF 127 III 481
[19] Article 97 of the law N. 633/41.
[20] Cassazione Civile, Sez. I, 2 mai 1991, N°4785 and See for example in Italian law article 96 of the of the law N. 633/41.
[21] Cass. 1re civ., 11 déc. 2008, n° 07-19.494 ; CA Paris, 1re ch., 8 nov. 1993, Légipresse 1993, n° 107, III, p. 160 ; TGI Marseille, 1re ch., 6 juin 1984, Izzo c/ Société Seppim, D. 1985, I.R., p. 323.
[22] Cass. 1 civ., 20 mars 2007, n° 06-10.305, n° 417 F – P + B).
[23] Swiss Tribunal Federal Jugement 4A_559/2021, consid 2.2
[24] Article 12.11 of the French national collective agreement for sport.
[25] To illustrate this approach, we can quote article 280b of the French Professional Football Charter (the collective agreement applicable to professional footballers in France) which requires players to concede the right to use their image when it is collective: “By signing his employment contract and by means of a specific amendment, the player gives his club authorisation to use his image and/or name reproduced collectively and individually for its own benefit, provided that at least five players in the squad are used in a strictly identical manner. Below this limit, the individual use of each player must have obtained a specific agreement for each operation”. Likewise, we can also mention article 7.1.3 of the French professional rugby collective agreement: “The image is considered “associated” when it combines both the image of the Club and the image of one or more player(s) and/or trainer(s) and/or physical trainer(s). This associated image can be “collective” or “individual”. “Collective associated image” means the use or reproduction on the same medium in an identical or similar manner of the image of at least 3 players and/or coaches and/or physical trainer(s). of the workforce, carried out or captured in the normal exercise of their professional activities Below this threshold, it is an exploitation of the individual image of the player or the coach or the physical trainer associated with that of the Club (hereinafter “associated image individual”).”
[26] Already quoted ATF 136 III 401
