After this year’s release of the video game FIFA 2021, Ibrahimovic took his anger to social, writing: ‘Who gave FIFA EA Sport permission to use my name and face? @FIFPro? I’m not aware to be a member of FIFPro and if I am I was put there without any real knowledge through some weird maneuver. And for sure I never allowed or FIFPro to make money using me.”
Tottenham star Gareth Bale, on loan from Real Madrid, also weighed in on Ibrahimovic’s comments and suggested that a thorough investigation into FIFPRO was needed.
The case is one among many touching on the legal issue of commercial exploitation of the public image and lack of consent.
Football has become more than just a sport, it has become commercial product, with fans and supporters turning into consumers. Most of the money pumping through the football ecosystem comes from broadcasters, TV rights and social media activities and clubs looking to increase their revenue and looking to acquire highly-marketable players to boost their image.
When Paris Saint-Germain (PSG) introduced football player Neymar, the club earned 1 million euros solely by selling jerseys with players name. It is evident that football players are selling their off-field activities such as their name, personal life, privacy, daily activities which all constitute their image. Their image is part of power and needs to be protected by limits and obligations through contractual clauses guaranteed and consented by the owner of this personal right. Public ‘image’ (nickname, likeness, photograph, voice, initials, signatures, autograph, …) can be exploited collectively or individually. Collectively as part of the football team, or the player could have their image exploited through sports events, championships and matches, by the broadcasters and the club.
On the other hand, the player could have their image exploited through specific commercial projects off the field of play, by sponsors, third parties, and also the club. The athlete needs to define the limits and conditions, distinguishing uses from commercial deals. It is a non-exhaustive list of possibilities that can be negotiated as the parties see fit. The principle of the contractual freedom of parties needs to be respected, as well as the jurisdiction.
The exploitation of the public image for market purposes has further gained momentum with the flourishing of e-sport and videogames.
One of the earliest, and most high-profile case, of a footballer suing a video game company for image rights was Oliver Kahn’s in 2003. The legendary German goalkeeper won a lawsuit against EA Sports for featuring him in the FIFA World Cup 2002 video game. While the makers had obtained the license to use real players from both FIFPro and the Bundesliga, Kahn wasn’t part of the collective deal
In order to license and exploit athletes’ images in FIFA, EA Sports has to negotiate image rights contracts that allow it to reproduce them in the game. Usually, most of those negotiations are carried out with FIFPro, the global representative for professional football players. This allowes EA Sports to exploit thousands of football players’ images in a very effective way, as the negotiations were much less expensive and simpler. However, in 2020 the EA Sports was convicted in a class action lawsuit filed by the Union of Athletes of Santa Catarina and will have to pay image rights to players present in publisher games between 2005 and 2014, more precisely the games of the FIFA and FIFA Manager franchise. The company will have to pay R $ 5,000 to each athlete per edition of each game mentioned in the process, which add up to just over 450 names. This represents R $ 3.7 million – with interest and corrections, this amount rises to R $ 6.5 million. The court in Sao Paulo ruled according to »les Pele« right by which public image is exclusive property of athletes who are the only ones who could transfer the use of their name and image for commercial purpose to EA. Contract between FifPro and EA Sports for Brazilian players is null and void.
AC Milan has signed an exclusive contract with EA, under which EA has the right to use the public image of AC Milan players. Similarly, Tottenham transferred the right to use the public image of its players to the latter under a collective agreement between Premiere League and EA. Whether Ibrahimovic and Bale transferred their own image to their club or whether they kept them to themselves is not known. However, if they didn’t it is really unusual that club could transfer them to EA. However, if AC Milan and Tottenham guaranteed to EA and received payment for the transfer of image rights for all their players and this turns out not to be true, then this is a violation of recourse claim.
So, the lesson is-alwyas make sure when using a person for your commercial purpose, to have all rights obtained and transfered.