Sponsorship and broadcasting rights are very a significant source of income in many cases the most significant source of revenue in some professional sports. The question of ownership of sport rights, images of sports people is difficult. It is not a distinctly recognised property as such and is accordingly capable of indirect protection only.
Many aspects of sporting rights will qualify as intellectual property rights. This may include trademarks and copyright in certain contexts. The common law of passing off prevents appropriation of a reputation which has commercial value.
Image rights, broadcasting rights, promotional rights, may be provided for through contract arrangements.
Professional sports people may be in an employment relationship with their club or body. They will enjoy a wide range of statutory rights in addition to their contractual rights.
Some professional sports people may be employees whereas others are independent contractor. This will depend on the degree of their independence.
Some professional sports people may employ a manager to act as an agent in dealing with their contract terms. The manager may act exclusively or for one sports person or more commonly for numerous sportspeople.
The employment relationship will create duties of good faith and fidelity. It will impose an obligation to act with reasonable care, skill, and honesty. On the employer’s part, it will impose an obligation to pay the relevant salary.
Contract law will be central to many disputes between players and clubs, players and managers. Many firing of managers may constitute a fundamental breach of contract creating an immediate right to damages.
Contract law will be central to many disputes between players and clubs, players and managers. Many firing of managers may constitute a fundamental breach of contract creating an immediate right to compensation for damages. Classically, many high-profile managers are fired peremptorily following disappointing results.
Many disputes under businesses in sports are in effect contractual disputes. There may be disputes as to whether a contract has come into being, its terms and conditions etc. This emphasises the importance of written contracts.
Generally, sponsorship contracts and other such important contracts with significant financial implications will be expected to be reduced to writing, dealing with the range of complex issues that are likely to arise. A number of cases which have involved relatively informal discussions were held to be subject to contract and not sufficiently precise and finalised to be in final contractual form.
Image and Reputation
Image rights can be valuable assets in the case of high-profile sportsmen and women. The use of image rights should be the subject of detailed contractual provisions. There may be restrictions in relation to the medium, location, context in which an image may be used.
There are likely to be obligations to protect his moral and reputational rights in its image and in particular, not do anything which would tarnish the image. Correspondingly, the player will be likely to behave in a way that does not damage the reputation of the sponsor. Clauses may be provided which terminate rights if this player does something in a sporting or non-sporting context which might affect the sponsor’s legitimate concerns.
It appears clear that there is no established property in an image right as such. Some continental jurisdictions have recognised image rights. Some common law jurisdictions have held that player’s image may be the subject of a passing off by way of protection of reputation.
The question of ownership of sport rights, images of sports people may raise difficult issues. It is not distinctly recognised property as such and is accordingly capable of indirect protection only.
Many aspects of sporting rights will qualify as intellectual property rights. This may include trademarks and copyright in certain context. The common law about passing off prevents appropriation of a reputation which has commercial value.
Image rights, broadcasting rights, promotional rights, may be provided for through contract arrangements. Some well-known sports persons have registered their names as trademarks. This also covers nicknames and derivatives.
Third Party Breach
This goes beyond the traditional concept of passing off as recognised in the United Kingdom and Ireland. However, the common law courts have begun to recognise image rights where a misuse of a particular image is equated to misuse of a brand or reputation. In particular, the courts have been willing in principle to restrain implied misrepresentation of endorsement.
In Irvine v. Talksport, misuse of an image by a well-known racing driver, appearing by doctoring, that it appeared he was endorsing a product, was restrained as passing off. There was a false representation of endorsement and the goodwill in his name and image had been infringed. He need not have necessarily have suffered economic loss as such. The key issue was the false representation of endorsement.
Such cases may in other circumstances be based on breach of privacy. There is a growing human rights law and constitutional based civil wrong of breach of privacy. Certain aspects of privacy may be infringed by misuse of the image.
Some misuses of image may constitute defamation. In one famous defamation case, the defamatory imputation was the implication that an amateur had endorsed the product concerned.
Advertising Standards Authority of Ireland have codes of practice which have a bearing on issues regarding use of images. See the separate section in this regard.
Clubs have their own brands, emblems which may be protected by passing off and copyright or trademark. The unauthorised sale of merchandising may constitute passing off or trademark infringement, particularly so in the case of jerseys and other kit associated with a particular club.
Collective & Club Rights
The organising body of a sport may state to maintain control over certain intellectual property aspects. It is likely to have a distinctive brand logo protected by trademarks, copyright or law of passing off. Production of national jerseys may breach the national body’s intellectual property.
Fixtures have been held to be protected by copyright in some context. Database rights may apply to such compilations and lists. Failures to share fixtures may constitute uncompetitive practices.
Sponsorship of sporting events is of immense financial significance. There is no property right as such in the event or holding of the event. However, an event may be protected by copyright.
Trademarks may be indirectly protected by the operation of the copyright, trademarks passing off. Effective control over the site of the event may enable the sponsor to provide the organiser to sell sponsorship and promotional advertising rights.
Sports teams are commonly sponsored with logos and brands. Sponsorship is usually the subject of detailed contractual arrangements, ensuring the exclusivity and delivery of the desired publicity.
Sporting events and competitions are commonly sponsored. The description of the event may promote and propagate the sponsor’s name. As with sponsorship of individual sports persons, contracts are likely to provide for protection of reputation through rights to terminate in the event of adverse publicity.
The sponsor will wish to prevent adverse marketing from rivals in a way that undermines the marketing campaign. It may seek to limit risk of rival sponsorship, undermining its marketing effort.
Broadcasting of Major Events
The Broadcasting (Major Events Television Coverage) Act 1999 seeks to preserve certain sporting events on a to free-to-air basis. The Minister may designate additional events having regard to whether it has a special general resonance for the Irish people and whether it has a generally recognised distinct cultural importance.
The list is to be drawn up in consultation with broadcasters and organisers of sports event. A broadcaster who requires exclusive rights of a protected event, may not broadcast it unless it makes available to qualifying broadcasters who request the right to relay it, on payment of a reasonable market rate. In the event of a dispute, the matter is to be determined by the High Court. The event may be restrained from being broadcasted.
The High Court may adjust an agreement for this purpose. In determining the reasonable market rates, the arbitrator or where it applies, the High Court is to have regard to:
- previous fees for similar events, time of the day at which the event will be covered live;
- the period for which the rights are offered, the revenue potential of live or deferred coverage of the event;
- purpose and spirit of the “Television Without Frontiers” Directive,
- other relevant matters.
The following have been initially designated:
- All-Ireland Senior Football & Hurling Finals;
- Ireland’s home and away matches in the European and World Championships and World Cup including the opening game, semi finals and finals of these tournaments;
- Rugby World Cup finals;
- Irish Grand National and Derby;
- Nations Cup at the Dublin Horse Show.