Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

International and European Sports Law – Monthly Report – January 2019 - By Tomáš Grell

 Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines

#Save(d)Hakeem

The plight of Hakeem al-Araibi – the 25-year-old refugee footballer who was arrested last November in Bangkok upon his arrival from Australia on the basis of a red notice issued by Interpol in contravention of its own policies which afford protection to refugees and asylum-seekers – continued throughout the month of January. Bahrain – the country Hakeem al-Araibi fled in 2014 due to a (well-founded) fear of persecution stemming from his previous experience when he was imprisoned and tortured as part of the crackdown on pro-democracy athletes who had protested against the royal family during the Arab spring – maintained a firm stance, demanding that Hakeem be extradited to serve a prison sentence over a conviction for vandalism charges, which was allegedly based on coerced confessions and ignored evidence.

While international sports governing bodies were critised from the very beginning for not using enough leverage with the governments of Bahrain and Thailand to ensure that Hakeem’s human rights are protected, they have gradually added their voice to the intense campaign for Hakeem’s release led by civil society groups. FIFA, for example, has sent a letter directly to the Prime Minister of Thailand, urging the Thai authorities ‘to take the necessary steps to ensure that Mr al-Araibi is allowed to return safely to Australia at the earliest possible moment, in accordance with the relevant international standards’. Yet many activists have found this action insufficient and called for sporting sanctions to be imposed on the national football associations of Bahrain and Thailand.      

When it looked like Hakeem will continue to be detained in Thailand at least until April this year, the news broke that the Thai authorities agreed to release Hakeem due to the fact that for now the Bahraini government had given up on the idea of bringing Hakeem ‘home’ – a moment that was praised as historic for the sport and human rights movement.

Russia avoids further sanctions from WADA despite missing the deadline for handing over doping data from the Moscow laboratory 

WADA has been back in turmoil ever since the new year began as the Russian authorities failed to provide it with access to crucial doping data from the former Moscow laboratory within the required deadline which expired on 31 December 2018, insisting that the equipment WADA intended to use for the data extraction was not certified under Russian law. The Russian Anti-Doping Agency thus failed to meet one of the two conditions under which its three-year suspension was controversially lifted in September 2018. The missed deadline sparked outrage among many athletes and national anti-doping organisations, who blamed WADA for not applying enough muscle against the Russian authorities.

Following the expiry of the respective deadline, it appeared that further sanctions could be imposed on the Russian Anti-Doping Agency, but such an option was on the table only until WADA finally managed to access the Moscow laboratory and retrieve the doping data on 17 January 2019. Shortly thereafter, WADA President Sir Craig Reedie hailed the progress as a major breakthrough for clean sport and members of the WADA Executive Committee agreed that no further sanctions were needed despite the missed deadline. However, doubts remain as to whether the data have not been manipulated. Before WADA delivers on its promise and builds strong cases against the athletes who doped – to be handled by international sports federations – it first needs to do its homework and verify whether the retrieved data are indeed genuine.  

British track cyclist Jessica Varnish not an employee according to UK employment tribunal

On 16 January 2019, an employment tribunal in Manchester rendered a judgment with wider implications for athletes and sports governing bodies in the United Kingdom, ruling that the female track cyclist Jessica Varnish was neither an employee nor a worker of the national governing body British Cycling and the funding agency UK Sport. The 28-year-old multiple medal winner from the world and European championships takes part in professional sport as an independent contractor but sought to establish before the tribunal that she was in fact an employee of the two organisations. This would enable her to sue either organisation for unfair dismissal as she was dropped from the British cycling squad for the 2016 Olympic Games in Rio de Janeiro and her funding agreement was not renewed, allegedly in response to her critical remarks about some of the previous coaching decisions.

The tribunal eventually dismissed her challenge, concluding that ‘she was not personally performing work provided by the respondent – rather she was personally performing a commitment to train in accordance with the individual rider agreement in the hope of achieving success at international competitions’. Despite the outcome of the dispute, Jessica Varnish has insisted that her legal challenge contributed to a positive change in the structure, policies and personnel of British Cycling and UK Sport, while both organisations have communicated they had already taken action to strengthen the duty of care and welfare provided to athletes.  

 

Sports Law Related Decisions


Official Documents and Press Releases

 

In the news

Doping

Football

Other


Academic Materials

International Sports Law Journal

Other


Blog

Law in Sport

Other

 

Upcoming Events

Overdue payables in action: Reviewing two years of FIFA jurisprudence on the 12bis procedure – Part 2. By Frans M. de Weger and Frank John Vrolijk.

Editor's Note: Frans M. de Weger is legal counsel for the Federation of Dutch Professional Football Clubs (FBO) and CAS arbitrator. De Weger is author of the book “The Jurisprudence of the FIFA Dispute Resolution Chamber”, 2nd edition, published by T.M.C. Asser Press in 2016. Frank John Vrolijk specialises in Sports, Labour and Company Law and is a former legal trainee of FBO and DRC Database.

This second blog will focus specifically on the sanctions available for FIFA under Article 12bis. It will provide explanatory guidelines covering the sanctions imposed during the period surveyed.


Introduction

The possibility to impose sanctions under article 12bis constitutes one of the pillars of the 12bis procedure. Pursuant to Article 12bis of the RSTP, edition 2016, the DRC and the PSC may impose a sanction on a club if the club is found to have delayed a due payment for more than 30 days without a prima facie contractual basis[1] and the creditor have put the debtor club in default in writing, granting a deadline of at least 10 days.[2] The jurisprudence in relation to Article 12bis also shows that sanctions are imposed ex officio by the DRC or the PSC and not per request of the claimant.More...





Exploring the Validity of Unilateral Extension Options in Football – Part 2: The view of the DRC and the CAS. By Saverio Spera

Editor’s Note: Saverio Spera is an Italian lawyer and LL.M. graduate in International Business Law at King’s College London. He is currently an intern at the ASSER International Sports Law Centre. 

This blog is a follow up to my previous contribution on the validity of Unilateral Extension Options (hereafter UEOs) under national and European law. It focuses on the different approaches taken to UEOs by the FIFA Dispute Resolution Chamber (DRC) and the Court of arbitration for sport (CAS). While in general the DRC has adopted a strict approach towards their validity, the CAS has followed a more liberal trend. Nonetheless, the two judicial bodies share a common conclusion: UEOs are not necessarily invalid. In this second blog I will provide an overview of the similarities and differences of the two judicial bodies in tackling UEOs. More...

The Validity of Unilateral Extension Options in Football – Part 1: A European Legal Mess. By Saverio Spera

Editor’s Note: Saverio Spera is an Italian lawyer and LL.M. graduate in International Business Law at King’s College London. He is currently an intern at the ASSER International Sports Law Centre.

                 

In the football world the use of unilateral extension options (hereafter UEOs) in favour of the clubs is common practice. Clubs in Europe and, especially, South America make extensive use of this type of contractual clauses, since it gives them the exclusive possibility to prolong the employment relationship with players whose contracts are about to come to an end. This option gives to a club the right to extend the duration of a player’s contract for a certain agreed period after its initial expiry, provided that some previously negotiated conditions are met. In particular, these clauses allow clubs to sign young promising players for short-term contracts, in order to ascertain their potential, and then extend the length of their contracts.[1] Here lies the great value of UEOs for clubs: they can let the player go if he is not performing as expected, or unilaterally retain him if he is deemed valuable. Although an indisputably beneficial contractual tool for any football club, these clauses are especially useful to clubs specialized in the development of young players.[2] After the Bosman case, clubs have increasingly used these clauses in order to prevent players from leaving their clubs for free at the end of their contracts.[3] The FIFA Regulations do not contain any provisions regulating this practice, consequently the duty of clarifying the scope and validity of the options lied with the national courts, the FIFA Dispute Resolution Chamber (DRC) and the CAS. This two-part blog will attempt to provide the first general overview on the issue.[4] My first blog will be dedicated to the validity of UEOs clauses in light of national laws and of the jurisprudence of numerous European jurisdictions. In a second blog, I will review the jurisprudence of the DRC and the CAS on this matter. More...

The legality of surety undertakings in relation to minor football players: the Lokilo case. By Adriaan Wijckmans

Editor's note: Adriaan Wijckmans is an associate specialized in sports law at the Belgium law firm Altius.

In a recent judgment, the Brussels Court of First Instance confirmed the legality of a so-called surety undertaking, i.e. an agreement in which the parents of a minor playing football guarantee that their child will sign a professional contract with a football club as soon as the child reaches the legal age of majority.

This long-awaited ruling was hailed, on the one hand, by clubs as a much needed and eagerly anticipated confirmation of a long-standing practice in Belgian football[1] and, on the other hand, criticised by FIFPro, the international player’s trade union, in a scathing press release. More...



FIFA's Responsibility for Human Rights Abuses in Qatar – Part II: The Zurich Court's Ruling - By Tomáš Grell

Editor’s note: Tomáš Grell comes from Slovakia and is currently an LL.M. student in Public International Law at Leiden University. He contributes also to the work of the ASSER International Sports Law Centre as a part-time intern.

This is a follow-up contribution to my previous blog on FIFA's responsibility for human rights abuses in Qatar published last week. Whereas the previous part has examined the lawsuit filed with the Commercial Court of the Canton of Zurich ('Court') jointly by the Dutch trade union FNV, the Bangladeshi Free Trade Union Congress, the Bangladesh Building and Wood Workers Federation and the Bangladeshi citizen Nadim Shariful Alam ('Plaintiffs') against FIFA, this second part will focus on the Court's ruling dated 3 January 2017 ('Ruling').[1]  More...



FIFA's Responsibility for Human Rights Abuses in Qatar - Part I: The Claims Against FIFA - By Tomáš Grell

Editor’s note: Tomáš Grell comes from Slovakia and is currently an LL.M. student in Public International Law at Leiden University. He contributes also to the work of the ASSER International Sports Law Centre as a part-time intern.

On 2 December 2010, the FIFA Executive Committee elected Qatar as host of the 2022 FIFA World Cup ('World Cup'), thereby triggering a wave of controversies which underlined, for the most part, the country's modest size, lack of football history, local climate, disproportionate costs or corruption that accompanied the selection procedure. Furthermore, opponents of the decision to award the World Cup to the tiny oil-rich Gulf country also emphasized the country's negative human rights record.

More than six years later, on 3 January 2017, the Commercial Court of the Canton of Zurich ('Court') dismissed the lawsuit filed against FIFA[1] jointly by the Dutch trade union FNV, the Bangladeshi Free Trade Union Congress, the Bangladesh Building and Wood Workers Federation and the Bangladeshi citizen Nadim Shariful Alam ('Plaintiffs').[2] The Plaintiffs requested the Court to find FIFA responsible for alleged human rights violations of migrant workers in connection with the World Cup in Qatar. Had the Plaintiffs' claims been upheld by the Court, such decision would have had far-reaching consequences on the fate of thousands of migrants, mostly from India, Nepal and Bangladesh, who are currently working on the construction of sporting facilities and other infrastructure associated with organization of the World Cup. More...

Introducing the new legal challenges of E-Sports. By N. Emre Bilginoglu

Editor’s Note: Emre Bilginoglu[1] is an attorney in Istanbul and the co-founder of the Turkish E-Sports Players Association, a non-profit based in Istanbul that aims to provide assistance to professional gamers and to work on the relevant laws affecting them. 


The world is witnessing the rise of a new sport that is growing at an incredible speed: E-Sports. We are only starting to understand its legal implications and challenges.

In recent years, E-Sports has managed to attract thousands of fans to arenas to see a group of people play a video game. These people are literally professional gamers (cyber athletes)[2] who make money by competing in tournaments. Not all video games have tournaments in which professional players compete against each other.

The most played games in E-Sports competitions are League of Legends (LoL), Defense of the Ancients 2 (DotA 2) and Counter-Strike: Global Offensive (CS:GO). LoL and DotA are both Multiplayer online battle arena (MOBA) games, a genre of strategy video games in which the player controls a single character in one of two teams. The goal of the game is to destroy the opponent’s main structure. CS:GO is a first-person shooter (FPS) game, a genre of video games where the player engages combat through a first-person perspective. The main objective in CS:GO is to eliminate the opposing team or to terrorize or counter-terrorize, planting bombs or rescuing hostages. Other games that have (popular) E-Sports competitions include Starcraft II (real time strategy), Hearthstone (collectible card video game), Call of Duty (FPS) and FIFA (football).

The gaming requires cooperation between team players, a high level of concentration, rapid reactions and some seriously fast clicking. E-Sports is a groovy term to describe organized competitive computer gaming. The E-Sports industry is exponentially growing, amounting to values expressed in billions of dollars. According to Newzoo, a website dedicated to the collection of E-Sports data, there are some 250 million occasional viewers of E-Sports with Asia-Pacific accounting for half of the total amount. The growth of the industry is indubitably supported by online streaming media platforms. This article aims to explain what E-Sports is and to give the readers an insight on the key legal questions raised by it. More...


Brexit and EU law: Beyond the Premier League (Part 1). By Marine Montejo

Editor's note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an intern at the ASSER International Sports Law Centre.

The result of the Brexit referendum on 23 June 2016 took the European Union (almost) by surprise. A lot has been said and written about the impact of the United Kingdom leaving the EU. As in all other areas, the British sport sector will also face the effects of the modification of the relationship between the EU and its (probable) former Member State, the UK. It is nearly impossible to foresee all consequences as the UK has not even triggered article 50 TFEU yet to officially start the exit negotiations. However, as the UK position toward the EU will change in any case, this two-part blog aims to examine the main practical implications of such an exit for the UK, but also for the EU, in relation to the actual application of EU law in sport and the EU sport policy.

Unless stated otherwise, the use of the terms Brexit in this blog should be understood as a complete exit of the UK from the European Union. This blog focus in particular on this worst case scenario and its consequences for UK sport. However, it is highly improbable that the future Brexit negotiations with the EU will end up without some kind of special agreement between the two parties the first of which being an EEA type of agreement with full access to the internal market and applicability of EU law. 

The first part of this blog will examined the consequences for UK sport in terms of access to the EU internal market and the applicability of free movement principles. The second part is focused on specific impacts with regard of others domain of EU law for professional and grassroots UK sport.  More...

Asser International Sports Law Blog | Image Rights in Professional Basketball (Part II): Lessons from the American College Athletes cases. By Thalia Diathesopoulou

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Image Rights in Professional Basketball (Part II): Lessons from the American College Athletes cases. By Thalia Diathesopoulou

In the wake of the French Labour Union of Basketball (Syndicat National du Basket, SNB) image rights dispute with Euroleague and EA Games, we threw the “jump ball” to start a series on players’ image rights in international professional basketball. In our first blogpost, we discussed why image rights contracts in professional basketball became a fertile ground for disputes when it comes to the enforcement of these contracts by the Basketball Arbitral Tribunal (BAT). Indeed, we pointed out that clubs might take advantage of the BAT’s inconsistent jurisprudence to escape obligations deriving from image rights contracts.

In this second limb, we will open a second field of legal battles “around the rim”: the unauthorized use of players’ image rights by third parties. We will use as a point of reference the US College Athletes image rights cases before US Courts and we will thereby examine the legal nature of image rights and the precise circumstances in which such rights may be infringed. Then, coming back to where we started, we will discuss the French case through the lens of US case law on players’ image rights. 


Source: http://philadelphia.cbslocal.com/2013/09/27/ea-sports-settles-college-likeness-case/ 


The American College Athletes image rights cases in a nutshell

The legal qualification of image rights varies in different jurisdictions. In the USA, image rights refer to the right of publicity: an intellectual property right, which gives the player an exclusive right on his image. The commercial exploitation of this image without permission constitutes an offence and practice of unfair competition.[1] Although the right of publicity is a creation of the common law not recognized under Federal law, many state courts and legislatures have embraced it.

The US legal system as a “true forerunner of marketing applied to sport”[2] considers, contrary to other legal systems, that image rights extends to the exploitation of players’ image rights linked to college championships. Indeed, the National Collegiate Athletic Association (NCAA) Basketball has acquired a monopoly power in the college sports entertainment market, with broadcast and cable television serving as powerful handmaidens.[3] This financially massive industry exploits the free labour of student-athletes’ due to their so-called amateur status.[4]  In fact, as a precondition to participate in NCAA Championships, student-athletes have to sign the ‘Form 08-3a’ authorizing NCAA to use their “name and picture to generally promote NCAA championships or other NCAA events, activities or programs”.[5]

The NCAA’s exploitation of players’ image rights generates millions of dollars of profits through licensing agreements for their use in e.g. television broadcasts, advertising, DVDs or video games. The fact that student-athletes are not compensated for the use of their rights has given rise to a wave of lawsuits filed by former student athletes against the NCAA and video game makers. O’Bannon’s, Sam Keller’s and other former student athletes’ image is still making money for the NCAA through licensed merchandizing.

As a result of the NCAA’s exploitation of players’ image rights, an unprecedented legal battle started in 2009 before the Federal Courts of the US. In May 2009, Sam Keller, a former football player of the Arizona University sued NCAA and EA Games for unlawfully using his image and likeness in a video game. The case continued before the 9th Circuit Court of Appeals in California which dismissed the appeal of EA Games on the grounds that EA was not protected by the First Amendment, which offers a shield to video games via freedom of speech. In fact, the Court concluded that the EA’s use of the player recreates him in the very setting in which he has achieved fame.[6] Similarly, in Ryan Hart’s case, a former Rutgers football player, the Federal Court of Appeals, overturning the district court’s ruling, concluded that players in video games are renditions of actual players who should be compensated.

Undoubtedly, the O’Bannon case is to be considered a milestone. It is the widest-ranging anti-trust lawsuit before US Courts with regards to college athletes’ image rights. On 21 July 2009, Ed O’Bannon, one of the most recognized collegiate basketball players of the last 30 years, along with another 19 former college athletes, filed a class action against EA Games, NCAA, and the Collegiate Licencing Company, the nation’s leading collegiate trademark licensing and marketing firm, seeking compensation from the unauthorized use of their image rights. Their claim implicated two core areas of law: (1) federal antitrust law and (2) intellectual property rights law. By requiring athletes to relinquish in perpetuity their image rights through the ‘Form 08-3a’ and fixing at zero the amount of compensation athletes could receive from the share of revenues, they contended that the NCAA has restrained trade and, thus, acted in violation of the Sherman Act, i.e. federal antitrust law. The athletes that signed this form had been deprived of their right to negotiate on their own with licensing firms after leaving college. Furthermore, they argued that they had been deprived of their right of publicity and their subsequent right to the commercial exploitation of their image, name, likeness or voice.

Following a contentious five years trial proceeding and thousands of pages of filings, on 8 August 2014, the US District Judge Claudia Wilken in a 99-page decision shook the basketball world by ruling in favour of O’Bannon and the other plaintiffs.[7] The injunction issued allows college athletes to get a share of the licensing revenues via the creation of a trust fund available to them once they leave college.


The O’Bannon landmark ruling: What the French (and Europe) can learn?

The O’Bannon ruling, while under appeal, has been ground-breaking in that it questions the ‘sacrosanct’ NCAA notion of amateurism. Judge Wilken was clear: maintaining amateurism is not legitimate sufficient justification for implementing anticompetitive labour rules, which bar players from being compensated for the use of their image rights. The collapse of NCAA’s amateurism defence and the resulting establishment of an equitable bargaining relationship between student-athletes and NCAA could blow up the entire college basketball system. Nonetheless, this not the only important lesson we can derive from the O’Bannon ruling and the American cases.

The link between amateurism and image rights, which deprives student-athletes from any compensation, is a unique phenomenon of US college sports system and lies at the heart of the American cases. In Europe, as we extensively explained in our fist blogpost, some professional basketball players assign to their clubs the commercial use of their image rights and they receive an adequate compensation through an image rights contract concluded with a third party, an image rights contract. However, this sum cannot be deemed as an actual compensation for the use of their image, but rather it constitutes a part of their remuneration under the employment contract. Therefore, at the European level, the question that could be raised is whether basketball players can request further compensation, i.e. a compensation proportionate to the revenues generated by the exploitation of their image rights. In this light, the O’Bannon ruling has the potential to create an important precedent for image rights disputes in European professional basketball as well:

(1) The license agreement of image rights between players and basketball associations

The issue at heart of the O’Bannon case regarding the ownership of the student-athletes image and likeness is the NCAA ‘Form 08-3a’. By means of this form, student-athletes authorize the NCAA to use their image rights for the promotion of its activities.[8] O’Bannon strongly argued that this form is illegal for the following reasons: First and foremost, the language of Part IV, which provides that the NCAA can use their “name and picture to generally promote NCAA championships or other NCAA events, activities or programs”, is vague and ambiguous. It does not define when, where, for how long, and how the NCAA may ‘generally’ promote events or activities. Secondly, as a result of student-athletes’ amateur status, this form is signed without representation. This can be considered as exploitative, since student-athletes’ are usually unaware of the legal consequences of signing such forms. Finally, this form is illegal, because it is coerced from student-athletes in exchange for their eligibility to play in the championship. Doug Szymul, former star football player at Northwestern University puts it clearly: “I had to sign it to be able to play, so it’s not like I’m going to argue about it”.[9]

Let’s transpose these arguments to the European professional basketball world and more particularly to the potential French case at hand. In fact, in the contracts between professional basketball players and National or European Basketball Associations, there is an image rights provision according to which players or their union agree, without further compensation, to the use of players’ image rights by the Club, the National or European League.[10] In this regard, the reference to the use of players’ image rights “in any manner” is quite ambiguous.[11]

In the French case, players transfer their image rights to the French Labour Union of Basketball (SNB). But, when players sign their contract with their club, they license the use of their image rights to their Club, French Basketball League and Euroleague, without further compensation. Can this agreement be interpreted as giving carte blanche to the Clubs, National Leagues or Euroleague to use basketball players’ image rights for an indefinite time period and indefinite manner, without further compensation? Well, if we follow the reasoning used in the O’Bannon ruling, this question should be answered in the negative: players and subsequently their labour union should have a share of licensing revenues. 

(2) The ‘without further compensation’ provision

A key issue raised during the O’Bannon trial was whether image rights (as well as name and likeness rights) even exist for the purposes of licencing agreements. The NCAA argued and provided supporting evidence[12] that although image rights are included in the contractual language, in practice, during the negotiation of broadcasting or licencing deals, they are not valued separately. The contractual provisions on image rights refer only to their use in event promotions and they play no further role during the licencing dealing.

Plaintiff’s witness, Edwin Desser, who was formerly the NBA head of broadcasting, disputed this argument by stating the ‘obvious’ from a commercial point of view: “ it’s simply impossible to conceive of sports telecast without being able to show the images of the participants”.[13] In other words, players’ image rights are a quid pro quo requirement of every broadcasting or licencing agreement.

This argument, which stems from commercial law practice, could serve as the perfect pick-n-roll in other image rights cases, including the French case. True, when, for example, EA Games negotiates with Euroleague for the conclusion of a licencing agreement, image rights are not separately calculated. However, in practice, the package of entitlements conveyed to video makers by the Clubs and Euroleague in exchange for exclusive licensing rights is essential for the deal. Realistically speaking, would it be possible for EA Games to create the NBA 2K 15 with Strasbourg and Nanterre playing, without including their players’ image rights? Clubs and Euroleague license players’ image rights and it goes without saying that they get significant revenues from the licencing agreement, while some players receive only a compensation which has been fixed in advance as part of their overall remuneration. It is this ‘without further compensation’ use of image rights provided by the contracts signed by players, therefore, that infringes their right to the commercial exploitation of their own image rights. 


Conclusive Remarks

In our previous blogpost, we cited the SNB’s president words: the SNB motion against EA Games is not about the money, but rather to defend basketball players’ rights.[14] Undoubtedly, image rights are also about the money, even if in the European context the monetary compensation is limited. We have shown that the unauthorized use of players’ image rights or the loss of their exclusive use may deprive them from a fair share of the club’s lucrative endorsement contracts. Furthermore, the existence of products bearing a player’s image without his authorization can in some cases seriously damage the value of his licensing rights.[15] Moreover, irrespectively of the legal qualification of image rights as ‘right of publicity’ or ‘right to personality’, this is a right gained through hard work on the basketball courts and the player should in any events get a share of the licensing revenues it generates.

The ‘David against Goliath’ American college sports crusade shows the way for European professional basketball players: a ‘without further compensation’ use of image rights or the denial of liability of the Clubs for non-payment of image rights contracts can be (and should be) successfully fought against.


[1] L Colantuoni and C Novazio, ‘Intellectual Property Righs in Basketball’ (2011) 1-2 International Sports Law Journal, 59.

[2] Ibid, 58.

[3] http://economics.stanford.edu/files/Theses/RobertLemonsHonorsThesis-May2014.pdf

[4] For an interesting insight on NCAA practice, see: B Starkey, ‘College Sports Aren't Like Slavery. They're Like Jim Crow’ where the author compares college athletes’ status to the status of “blacks after slavery”.

[5] Form 08-3a, Part Iv

[6] United States Courts of Appeals for the Ninth Circuit, NCAA Student-Athlete name & likeness litigation (No 10-15387)

[7] Edward O’Bannon et al v National Collegiate Athletics Association, Electronic Arts Inc and Collegiate Licensing Company (US District Court, 08.08.2014)

[8] M Zylstra, Ed. O’Bannon vs. NCAA: An examination of O’Bannon’s legal claim that the NCAA illegally uses the likeness and image of former student-athletes (2009) 205 Business Law, 5.

[9] Ibid, 6.

[10] See for example, Article 69  of the Euroleague Bylaws 2012-2013: “The Company and EP have the right to use the image of the club’s players, the players’ likeness (photograph, caricature, etc), name, number, or any combination thereof for any and all commercial and promotional purposes solely in connection with the Euroleague and provided that the image of the player appears linked to the club, the player wearing its apparel and footwear, or when the player participates in public events organised by the club or by the Company”.

[11] See, Standard Player Contract of SIG BASKET SAEMSL , Clause 9.1 :The Player agrees, without further compensation, to allow the Club or the National League or Euroleague Basketball and their respective sponsors to take pictures of the Player, during game action or posed, as necessary, alone or together with others, for still photographs, motion pictures, internet, TV or any other form of media whether presently known or unknown, at such times as the Club or the National League or Euroleague Basketball may designate. Such pictures may be used, without further compensation, in any manner desired by either the Club or the National League or Euroleague Basketball or their respective sponsors only for publicity or promotional purposes. The rights in any such pictures taken by the Club or by the National League or by Euroleague Basketball shall belong to the Club or to the National League or to Euroleague Basketball as their interests may appear.”

[12] Reporter’s Transcript of Proceedings, Testimony of the NCAA’s lead expert Neal Pilson (vol 4) 715-815

[13] Reporter’s Transcript of Proceedings, Testimony of Edwin Desser (vol 4), 618-708.

[14] Johan Passave-Ducteil, the president of SNB remarks in l’Equipe:"Ce n’est pas une histoire d’argent, on défend le droit des joueurs".

[15] L Colantuoni and C Novazio (n1), 60

Comments are closed