Zlatan fires shots at EA Games and FIFAPro drawing attention to the world of image rights once more

Footballers have drawn attention to the often complicated world of image rights, with two of the game’s most prominent players questioning EA Games’ right to use their name, image and likeness in the latest FIFA computer game.

EA Games licences the right to use official players, clubs, brands, stadium and competition names within its FIFA games, which to date it is estimated to have sold more than 300 million copies of. It is reported to feature more than 7,000 players, 700 teams, 90 stadiums and 30 leagues.However, Zlatan Ibrahimović recently tweeted: “Who gave FIFA EA Sport permission to use my name and face? @FIFPro?” adding “Somebody making profit on my name and face without any agreement all these years”Gareth Bale replied to Zlatan’s tweet with: “Interesting, what is FIFAPro? #TimeToInvestigate” with both players’ agents also wading in and adding further comments.FIFAPro is a global players' union, consisting of 65 national member associations across the world. Football players are not directly members of FIFAPro, instead they are members of their national associations. FIFAPro then have a mandate to sell name and likeness rights on behalf of every player from a member nation, unless it has a special arrangement in place with a particular member nation.Interestingly, in responding to the players’ tweets, EA Games have seemingly confirmed that the English premier league is one such association that does not assign its associated rights to FIFAPro: “In these instances, our rights to player likenesses are granted through our club agreement with AC Milan and our long-standing exclusive partnership with the Premier League, which includes all players for Tottenham Hotspur."

Instead, it is understood that the Premier League obtains image rights of players through agreements with its affiliated clubs and the Premier League sells their licensing rights for video games collectively. From this statement, we can infer that this is not the case in Italy where EA Games appear to have obtained the right to use Zlatan’s image through an agreement directly with his club, AC Milan and not Serie A or FIFAPro.

What’s the position in the UK?

As well as the fact that the Premier league is the most successful league in the word and its associated rights being far more valuable than a number of the other member associations, one reason the Premier League manages its rights in this way may be due to the UK’s unconventional position in relation to image rights.In the UK, there is no specific legal concept of ‘image rights’ per se and there is no explicit codified laws governing the ownership and use of such.  Instead, the UK relies on a variety of IP rights to protect an individual’s name, image and likeness, including trade marks, copyright, passing off as well as a number of laws relating to privacy.This means that an individual within the UK wanting to protect or prevent the use of their image by a third party will need to rely on a number of different statutory and common law rights, none of which are the perfect fit.What has likely stirred-up this outcry from Zlatan and Gareth Bale is the news that David Beckham has signed a multi-million pound deal (with some reports rumouring the value to be in excess of £40 million, although EA Games have denied it is as much as this) to feature as a special edition player in the new FIFA game.Importantly however, David Beckham is no longer a professional footballer and so is not a member of any club, competition, football association or indeed FIFAPro and so he seemingly retains all rights in his image and has been able to negotiate with EA Games independently.In the case of professional football players playing in the Premier League, they are required to sign the standard FA Premier League contract which contains a mandatory clause under which they grant their club the right to use their image in both a personal and club capacity. The club and the Premier league then have the right to sell these rights to EA Games for use in their game.These clauses are however, often accompanied by further terms set out in separate image rights contracts, especially in the case of top players whose image is of particular value.It is also not uncommon for top players to assign the rights to their image to a company set up to specifically manage and monetise their image and so clubs are then required to contract with those image right companies directly.A similar situation to this was rumoured to be behind the collapse of a deal to bring Juventus player Paulo Dybala to Spurs in 2019. It was reported that Dybala had sold his image rights to a third party company based in Malta, owned by his former agent and the amounts they were seeking to charge Tottenham for use of Dybala’s image ultimately made the deal unviable. This is an unusual case however, as often, players will own the company that controls their image rights and so they will have more control.

Takeaways 

This twitter outcry brings into focus that with the law being somewhat uncertain in the UK, there is a greater need for UK collaborators to ensure that they obtain the relevant permissions to use an individual’s image and for the individual to be clear on the extent to which and to whom they are granting such permissions.The terms of these agreements are key and should be considered carefully by both sides to ensure they are fit for purpose. For instance, from a commercial perspective, a business may not only want obtain the right to use an individual’s image but it may also want to impose some form of exclusivity or restriction so as to prevent the individual’s image from being used by a competitor brand.Equally, from an individual’s perspective, they will want to ensure that they understand the terms of any licence to use their image, which they are giving so that, amongst other things, they do not inadvertently restrict their ability to use/sell their image elsewhere.This again can cause issue in the footballing world.. Indeed this was reported to have been at the centre of Jose Mourinho’s negotiations to become manager of Manchester United with him having existing individual commercial deals with competitors of Manchester United’s main sponsor, Chevrolet.These types of commercial conflicts are only likely become more frequent, as players increasingly seek to monetise their image with various brand partners.Whilst the noise around this particular issue has gone quiet since EA Sports’ statement, with this public outcry from Zlatan and Gareth Bale rumoured to be orchestrated by their prominent and influential agents, and with the sport’s top players finding more and more value in their image rights, we may see further escalations in due course.What this episode highlights however, is how complicated the current world of image rights is, particularly when projects and parties are cross border and it is a timely reminder of the importance for all collaborators to be clear on what permissions they have given/been granted and to have the necessary contracts in place so that they don’t get caught out.

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