Image rights

Fraser Reid - Couchmans LLP

Fraser is a commercial sports law specialist focusing on the core areas of sports marketing, notably client representation, event management and sponsorship, where he has advised a number of sports agencies and brands (including Nike and sponsors of the Rugby World Cup, Olympics, FIFA World Cup and Euro Championships).

Q. What are image rights?

Whilst everyone has “image rights”, some are more valuable than others. Image rights are essentially the right to use a player's name, nicknames, likeness, image, autograph, endorsement, reputation, physical appearance, voice, film and other personal characteristics. Frequently, they also include the right to call upon the player to make “appearances” for third parties (e.g. a club or sponsor), usually to promote or endorse a product or service. Appearances can range from personal attendance at charitable or marketing events, to photographic sessions and television interviews.

Q. How does a player benefit from them?

The exploitation of image rights can create an additional revenue stream outside of the normal salary payments from the club. This usually starts with a sports apparel deal with brands such as Nike and adidas who will pay to use the player's image rights to endorse their products. For higher profile players, other brands may seek to do the same (e.g. Lucozade, Marks & Spencer). In certain cases, the player’s club will pay an additional fee for the use of the player’s image rights to reflect the value to the club’s commercial programme. Tax advantages can also result from entering into image rights arrangements.

Q. How do they differ from, say, pictures which appear in newspapers every day?

The difference lies in the actual use of the image rights. Anyone can use a player's image rights for reporting and general information purposes in newspapers etc. However, where a player’s image is used for commercial purposes, e.g. to promote a product or service, then the person using the image rights must obtain the player’s consent (usually in return for money or other benefits).

Q. Will a player’s image rights increase in value if his club is successful?

Yes, because his profile will undoubtedly rise if he is playing for a successful club. Similarly, if a player is a star player for a less successful club, his image rights will be more valuable than if he is a squad player. On the flip side, if he is not playing regularly and is out of the media glare then the value of his image rights will not necessarily increase and indeed could depreciate.

Q. How often are they negotiated?

Every time a player signs a playing contract or enters into any commercial arrangement where his "image" is being used, promoted or portrayed (typically in his professional capacity as a footballer), the use of his image rights will inevitably be included, even in a standard playing contract.

Q. Does it stop a player agreeing to other sponsorship deals?

Not necessarily, but players must be careful not to give away rights unnecessarily when entering into contracts with clubs or third party brands. Sponsors will often want exclusivity which stops the player from entering into deals with competing brands. In most cases, clubs will also seek to restrict a player’s commercial activities to protect their own sponsors.

Q. Should an image rights clause always be included in contract deals?

Yes – clause 4 of the standard Premier League playing contracts sets out certain standard provisions concerning the club's use of a player's image rights. Less detailed provisions appear in the standard Football League contract. A commercial contract will usually contain image rights provisions, and it is in the player's interest to ensure that this is the case, both to protect the value of the image rights and ensure that he is able to conclude deals with a variety or sponsors.

Q. What happens if a club does not or cannot pay them, as Portsmouth appear to have done with Sol Campbell?

Whilst you hope that it never has to get to this situation, either the player or his image rights company will have a right of action against the club to recover the moneys in the civil courts. Disputes between clubs and players in this area are now unfortunately not uncommon, so care must be taken.

Q. What are image rights companies?

Image rights companies are limited liability corporate vehicles that are commonly used to hold a sportsman's image rights, predominantly for tax purposes. Once the player’s image rights are transferred to the image rights company, then all third parties (including football clubs) who wish to use the player's image rights must contract with the image rights company rather than the player.

Q. When should you set up an image rights company?

It depends on the player's circumstances. It is usually preferable to set it up early in a player’s career (as there could be capital gains tax implications), but this can be risky if the player’s career does not take off, as he will have incurred some wasted costs. It is best to wait until one is confident that the player will make it, i.e. about to sign his first professional deal with a Premiership club, attaining his first international cap (including at under-21 level) or being approached to sign a fairly significant commercial deal. If the player is moving to the UK from overseas, it is often best to set up the image rights structure before the player arrives in the UK.