Apart from a player’s salary, personal endorsements and a player’s image itself have become a pivotal part of a player’s income. A player’s image can be posted across a wide variety of commercial spheres and it is vital that this valuable asset is sufficiently protected.
As seen from the recent controversies involving Lionel Messi and Cristiano Ronaldo and the reports emerging of the central role played by image rights played in the Mesut Ozil contract negotiations, the extent and scope of these rights have come under considerable scrutiny.
A Web of Rights and Protections
The first point to note is that a player’s image is not protected as proprietary right but across a web of different rights and protections. These protections include:
- Passing Off.
- Trade Marks.
In an era where social media or general media plays such a large influence on people’s opinions, it is vital that players have sufficient protection to make sure that any false reporting or story does not affect any current sponsorship deals or any in the future.
The Defamation Act was commenced in 2009 in Ireland in order to avail of such protection. (The UK equivalent is the Defamation Act 2013). In order for an action to arise under the act, the following must take place:
- There must be publication to a third party.
- The statement made must also have effected the persons reputation as seen through the eyes of a reasonable member of society.
- The player must also be able to be identified from any statement that has been published. (A person does not need to be named to be identified.
For any player who has suffered any possible infringements to their good name, a wide variety of remedies may be available including an injunction to stop publication, a declaration to state that statement was false and defamatory and damages for any harm that has arisen.
A player’s ability to showcase their image allows him/her to receive considerable remuneration by way of endorsing a product or brand. Unfortunately, there are occasions when a player is wrongly shown as endorsing a being associated with a business or brand. The player such a case could rely upon the economic tort of passing off.
As per McCambridge Ltd V Joseph Brennan Bakeries (2012) IESC 46, in order for an action of passing off to arise the following must be present:
- Existence of a reputation or goodwill.
- A misrepresentation leading to confusion.
- The complainant has suffered damages as result of this confusion.
In the case of Irvine V Talksport (2002) 2 ALL E.R. 414, the Court acknowledged the right of a celebrity to exploit their name and image by way of endorsements. Irvine’s original image of him holding a mobile phone had been manipulated to show him holding a radio bearing the name of the defendant’s radio station.
Fenty V Arcadia Group Brands (2013) EWHC 2310, presents a similar issue. Here the singer Rihanna had her image put on t-shirts sold by the Defendant and this was viewed by the Court as amounting to a loss of control of her image. Remedies such as damages and/or injunctions could be obtained for any possible violation of a player’s image rights.
An athlete image is also protected by way of copyright which is established under the Copyright and Related Acts Rights 2000. Copyright is an automatic right and does not need to be registered. An athlete who has suffered as a result of violation of this act may avail of damages or injunctive relief depending on the situation.
Many athletes have also gone down the route of setting up their own brand and protecting it by way of registering a trademark. Examples of well-known sporting Trademarks include Michael Jordan Basketball and Tiger Woods Golf. Trademarks are protected domestically by the Trademarks Act 1996 and also on an EU level by way of Trade Mark Regulations. An athlete should be advised to register a trademark with the domestic register or the European Register. However should a trademark not be registered, an athlete should take comfort in that they can still avail of the protection of passing off.
If you have found yourself in any of the above mentioned situations or need extensive advice on how to structure an image rights deal, please contact any member of the KPOS team and will be happy to arrange a consultation and assist you.
Social Media Influencers and Influencer Endorsements in Amateur and Semi-Professional Sports in Ireland: Potential and Pitfalls
Influencer marketing, simply put, is the phenomenon whereby brands of any description pay people with large social media followings to plug their products for anything from a few hundred euro per post up. Ireland has seen an explosion in the number of influencers in the areas of fashion food and travel, creating content across various social media channels and attracting a huge army of followers and subscribers.
A study by Salesforce found that 70 percent of brands planned to increase their social media spend in 2016 while a Google Trends search revealed that searches for the term “influencer marketing” had climbed by over 5,000 per cent, making it a “breakout” trend.
In the sporting world established and emerging global professional sports players have earn their livelihoods from more traditional endorsement deals, there has always been an uncomfortable clash of principals when it comes to talking about sponsorship of emerging amateur and semi-professional players.
Amateur associations such as the GAA and semi-professional sports clubs have many very lucrative commercial sponsorship contracts. Amateur and semi-professional players on the other hand, have struggled in the main to endorse products on a wide-spread commercial basis despite the fact that they are ideally placed to capitalise on the rise of influencer marketing. As the market develops, it is quite likely that amateur and semi-professional players may be approached with a view to endorsing or supporting products connected with their chosen field.
If you or a family member are an amateur a semi-professional player and have been approached to become a social media influencer or if you plan on seeking influencer endorsements there are a number of general tips that you need to bear in mind
It is open to any private individual, whether they are a sports person, or not to enter a contract for any lawful purpose including entering into formal endorsement contracts. These endorsement contracts may come in a variety of forms ranging from short-term contracts making once off or periodical public appearances to exclusive brand endorsement agreements.
While these contracts are often standard form they are not always be drafted in a clear and understandable and may contain some disadvantageous terms. For example some contracts will contain specific restrictive covenants which tie you to using a particular product only or preclude you from negotiating other similar deals with different companies.
Further, there may be some form of sanctioning clause included for a failure to abide by certain conditions of the contract which, although required to be proportionate and lawful, may prove very costly to you. Make sure that this is fully explained to you before signing and consider seek independent legal or commercial advise.
High profile social media inevitably receiving money from them their advertising agency. If you receive payment of money for promoting a product or a service then this must be accounted for as part of your income.
The Finance Act 2002, (as amended by the Finance no 2 Act 2013) enacted Section 480A of the Taxes Consolidation Act 1997, and introduced a tax relief for certain classes of professional sportspersons on their retirement. Under this scheme, certain sports professionals engaged in certain specified professional sporting occupations listed under Schedule 23A of the Tax Consolidation Act can, on their permanent retirement, claim certain income tax reliefs even where they have forged careers elsewhere in the EEA. Importantly this relief does not extend to semi-professional or amateur sportspeople.
Just because your endorser has given you something for free does not mean that you are unaccountable either. Any sports person in receipt of a service which is in receipt of monies or monies worth (such as a free car) must know that this will be treated as a benefit in kind and you are legally obliged to account for it. The receipt of free sporting equipment or goods for which you would have to pay for also constitutes benefit in kind.
Similarly as part of any deal you might be contractually required to make paid public appearances or product launches. Such personal appearances which money is paid is also deemed to be income and must be accounted to the Revenue Commissioners as income.
Code of Standards for Advertising and Marketing Communications:
It is also very important, particularly if you are dealing with foreign based endorsers, that you are aware of your obligations under the Code of Standards for Advertising and Marketing Communications. The Advertising Standards Authority of Ireland (ASAI) issued a reminder in 2015 noting that its Code of Standards for Advertising and Marketing Communications, a self-regulatory code, applies to bloggers and social media influencers.
It issued another note entitled the “Recognisability of Marketing Communication” to make those guidelines clearer. “Where celebrities are sponsored by brands or paid directly to promote a brand’s products, it must be clear that their posts are marketing communications,” the note states. “The context of the post or accompanying # may make it clear that it is a marketing communication.”
It further notes that where celebrities or influencers are sponsored by brands or paid directly to promote a product, it must be clear these posts are marketing communications. To achieve this, they are encouraging the use of a clearly identifiable hashtag such as #Ad or #SP to feature prominently on the promotion .
While it has yet to bring a case to the Complaints Committee, this is something that must clearly being taken seriously and, as such, is something that you and your chosen sponsor must be very conscious of.
A way forward?
If you do get an endorsement deal, then it will take the form of legal contracts which will have to be negotiated and it is always important that proper legal and commercial advice is taken if you find yourself in this situation. If you wish to proceed unrepresented, do so with the upmost caution and with due regard to your potential tax and legal liabilities. If you have found yourself in this situation or need advice, then at any stage we at KPOS will be happy to assist based on our experiences so far.
Please contact Stephen Kirwan of our team at firstname.lastname@example.org or 086-0870137 should you require any assistance