Ally Burr

The FIFA World Cup is one of the most watched sporting events in the world. From sticker books, video games, posters and advertisements, the commercial opportunities of being associated with the tournament are colossal. Most top club teams are entering numerous commercial partnerships, which allow brands to be associated with not only the clubs but also, perhaps more importantly, their high-profile players. There is, undoubtedly, huge commercial value in the image of high-profile players.

In this context, “image” refers to a person’s name, likeness, personality, signature, statements, biographies, caricature, personal appearance and even their shirt number (think, “Ronaldo 7”, or “Messi 10”). Fundamentally, we are concerned with any legal and beneficial rights and goodwill that subsist in relation to the use, exploitation, reproduction of, or association with, the personal attributes of an individual.

But what does this mean for the players themselves? Their personal image and brand are now inextricably linked to their team. So, what are their legal rights regarding the use of their personal image? That is something with which UK law has struggled to grapple for some time. 

Under UK law, there is no such thing as an “image right” – as has been made unequivocal in numerous high-profile cases, involving the likes of Rihanna (Fenty v Arcadia Group Brands Ltd [2015] EWCA Civ 3), Michael Douglas and Catherine Zeta-Jones (Douglas and Anor v Hello! Ltd and others [2007] UKHL 21). Instead, we rely on traditional privacy/breach of confidence and intellectual property rights (e.g. copyright, trademarks and passing-off). This contrasts with most EU countries, including France and Germany, which have established laws relating to one’s image and personality. 

In most circumstances, the rights and limits connected to the use and exploitation of a person’s image will need to be carefully considered and negotiated in a contract. Typically, football clubs will contract with and pay their players to endorse and promote a number of specific commercial deals (e.g. with the club’s sponsors), which will often restrict the player in how they may use their image in certain circumstances. For example, such contracts will often include a restrictive covenant stopping the player from endorsing a rival brand. If the player is transferred to another club, there will likely be both an employment contract and image rights agreement negotiation.

Players, unsurprisingly, are starting to take a stand. Sweden’s Zlatan Ibrahimovic and Wales’ superstar captain, Gareth Bale, recently took to social media regarding EA Sports’ use of their likeness in their hugely popular FIFA video games without their express permission. France’s 2022 star, Kylian Mbappe, refused to take part in squad photographs for certain brands with whom he didn’t want to associate himself or his name, spurring the French Football Federation (FFF) to announce that they will review their agreement on players’ image rights.

However, players should be aware that it is possible to legally lose the rights to use one’s own name in a commercial setting. This famously happened to fashion designer Karen Millen, after she sold her stake in her eponymous business in 2004 to Aurora Fashions. The terms of the deal prevented her from using her name in connection with any similar or competing businesses in the future, anywhere in the world, and were upheld in the High Court when Ms Millen attempted to apply for negative declarations from the court to enable her to use her own name to launch a new homeware and lifestyle business, due to the confusion and likelihood of association that such use would have caused with the original Karen Millen brand.

As the personal brands of our highest-profile footballers become more and more valuable, will UK legislators rethink the long-established reluctance to recognising specific image and personality rights, and look to follow places such as Guernsey, which in the last decade has created a statutory regime under which image rights can be registered? Although the Three Lions were unable to bring football home this year, their raised profile and valiant effort in Qatar might increase the chances of this happening…but don’t hold your breath.

Ally Burr is an associate at Dentons