Asser International Sports Law Blog

The newly launched ‘Global Sport and Human Rights Research Network’, an initiative jointly hosted by the T.M.C. Asser Instituut and the Centre for Sport and Human Rights, together with the European Union-funded project ‘Human Rights Empowered Through Athletes Rights (H.E.R.O.)' is organising an in-person conference on October 23 at the Asser Institute in The Hague, to map the field of athletes' rights and engage in critical discussions on protection of these rights and how to prevent rights violations.

The one-day conference will kick off with a presentation by the H.E.R.O. team on their research results, followed by a short panel discussion. The rest of the day will be filled with four panels on different aspects related to the topic of athletes’ human rights, with speakers from academic institutions around the world.

Check out the full programme HERE and register for free HERE.

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Editor's note: Saverio P. Spera is an Italian qualified attorney-at-law. He has practiced civil and employment law in Italy and briefly worked at the Asser International Sports Law Centre before joining FIFA in 2017. Until May 2024, he has worked within the FIFA legal division - Litigation Department, and lectured in several FIFA sports law programmes. In the spring of 2024 he has co-founded SP.IN Law, a Zurich based international sports law firm.

On 21 December 2023 a judicial hat-trick stormed the scene of EU sports law. That day, the European Court of Justice (the “ECJ”) issued three decisions: (i) European Superleague Company, SL v FIFA and UEFA (Case C-333/21); (ii) UL and SA Royal Antwerp Football Club v Union royale belge des sociétés de football association ASBL (Case C-680/21)and (iii) International Skating Union (ISU) v. European Commission – Case C-124/21.

These judgments were much scrutinised (see here, here and here) in the past 6 months. For the reader’s relief, this paper will not venture into adding another opinion on whether this was a fatal blow to the foundation of EU sports law or if, after all, the substantive change is minimal (as persuasively argued here). It will analyse, instead, UEFA’s recent amendments of its Statutes and Authorisation Rules governing International Club Competitions (the “Authorisation Rules”) and whether these amendments, clearly responding to the concerns raised in the ISU judgment with respect to the sports arbitration system,[1] might pave the way for other Sports Governing Bodies (SGBs) to follow suit and what the implications for CAS arbitration might be. More...

Editor's note: Ella Limbach is currently completing her master’s degree in International Sport Development and Politics at the German Sport University Cologne. Her interests include human rights of athletes, labour rights in sport, the intersection of gender, human rights and sport and the working conditions in women’s football. Previously, she graduated from Utrecht University with a LL.M in Public International Law with a specialization in International Human Rights Law. This blog was written during Ella's internship at the Asser Institute where she conducted research for the H.E.R.O. project. The topic of this blog is also the subject of her master's thesis.

Women’s football has experienced exponential growth over the past decade, though the professionalization of the women’s game continues to face barriers that can be tied to the historical exclusion of women from football and insufficient investment on many levels. While attendance records have been broken and media coverage has increased, the rise in attention also highlighted the need for special accommodations for female footballers regarding health and safety at the workplace. Female footballers face gender specific circumstances which can have an impact on their health such as menstruation, anterior cruciate ligament (ACL) injuries and the impact of maternity. As the recent ILO Brief on ‘Professional athletes and the fundamental principles and rights at work' states “gender issues related to [occupational health and safety] risks are often neglected (p. 23).” While it could be argued that from a human rights point of view article 13(c) of the Convention on the Elimination of Discrimination of Women stipulates “the right to participate in […] sports [on an equal basis to men],” reality shows that so far practices of men’s football were simply applied to women’s football without taking into consideration the physiological differences between male and female players and the implications that can have for female players’ health. The ILO Declaration on Fundamental Principles and Rights at Work(ILO Declaration, amended in 2022) includes “a safe and healthy working environment” as one of the fundamental rights at work (Art. 2e). This begs the question whether the scope of the right to occupational health and safety at the workplace includes the consideration of female specific health issues in women’s football. More...

Editor's note: Dr Rishi Gulati is Associate Professor in International Law at the University of East Anglia (UK) and Barrister in Law. He has a PhD from King’s College London, Advanced Masters in Public International Law from Leiden University, and a Bachelor of Laws from the Australian National University. Amongst other publications, he is the author of Access to Justice and International Organisations (Cambridge University Press, 2022). He has previously worked for the Australian Government, has consulted for various international organizations, and regularly appears as counsel in transnational cases.

On 1 December 2024, Jay Shah, the son of India’s powerful Home Minister and Modi confidante Amit Shah, will take over the role of the Independent Chair of the International Cricket Council (ICC). This appointment reflects the influence India now has on the governance of cricket globally. A key test Jay Shah will face is whether or not the ICC should suspend the Afghanistan Cricket Board (ACB) from its membership as Afghanistan no longer maintains a women’s cricket team contrary to the organization’s own rules, as well as its human rights responsibilities. More...

The Editors of the International Sports Law Journal (ISLJ) invite you to submit abstracts for the next edition of the ISLJ Conference on International Sports Law, which will take place on 24 and 25 October 2024 at the Asser Institute in The Hague. The ISLJ, published by Springer and TMC Asser Press, is the leading academic publication in the field of international sports law and the conference is a unique occasion to discuss the main legal issues affecting international sports and its governance with renowned academic experts.

We welcome abstracts from academics and practitioners on all issues related to international and transnational sports law and their impact on the governance of sport. We also welcome panel proposals (including a minimum of three presenters) on specific issues of interest to the Journal and its readers. For this year’s edition, we specifically invite submissions on the following themes and subthemes:

Reformism in transnational sports governance: Drivers and impacts

Legal and social drivers of reforms in transnational sports governance
The role of strategic litigation (before the EU/ECtHR/National courts) as a driver of reform;
The role of public/fan pressure groups on clubs, competition organisers and governments as a driver of change.
The impact of internal reforms in transnational sports governance: Cosmetic or real change? (e.g. IOC Agenda 2020+5, FIFA governance reforms, CAS post-Pechstein changes, WADA sfter the Russian doping scandal)
Emerging alternatives to private sports governance – the UK’s Independent Football Regulator.

The organization and regulation of mega sporting events: Current and future challenges

Mega-sporting events as legalized sites of digital surveillance
Greening mega-sporting events (e.g. carbon neutral pledges, environmental footprints of events, the impact of multiple hosting sites)
Mega-sporting events and the protection of human rights and labour rights (e.g. Paris 2024 Social Charter, Euro 2024 human rights commitments)
The Olympic Games and athletes’ economic rights (remuneration/advertisement)
Reviews of the legal issues raised at Euro 2024 in Germany and the Paris 2024 Olympic Games
Previews of the legal issues likely to have an impact on the FIFA 2026 World Cup and the Milano-Cortina 2026 Winter Olympic Games

Please send your abstract of 300 words and CV no later than 15 July 2024 to a.duval@asser.nl. Selected speakers will be informed by 30 July.

The selected participants will be expected to submit a draft of their paper by 1 October 2024. Papers accepted and presented at the conference are eligible for publication in a special issue of the ISLJ, subject to peer-review.

The Asser Institute will provide a limited number of travel & accommodation grants (max. 300€). If you wish to be considered for a grant, please explain why in your submission.

This seminar is part of the Asser International Sports Law Centre's event series on the intersection between transnational sports law and governance and gender. Dr Pavlidis will present her take on feminist theories and sport governance by exploring sports and in particular Australian rules football and roller derby as sites of cultural transformation.

Register HERE

Australian rules football is Australia's most popular spectator sport and for most of its history it has been a men's-only sport, including in its governance and leadership. This is slowly changing. Roller derby on the other hand has been reinvented with an explicitly DIY (Do It Yourself) governance structure that resists formal incorporation by 'outsiders'. This paper provides an overview of sport governance in the Australian context before focusing in on these two seemingly disparate sport contexts to explore the challenges of gender inclusive governance in sport.

Dr Adele Pavlidis is an Associate Professor in Sociology with the School of Humanities, Languages and Social Science at Griffith University in Australia. She has published widely on a range of sociocultural issues in sport and leisure, with a focus on gender and power relations. Theoretically her work traverses contemporary scholarship on affect, power and organisations, and she is deeply interested in social, cultural and personal transformation and the entanglements between people, organisations, and wellbeing.

We look forward to hearing Dr Pavlidis present on this topic, followed by reflections and comments by Dr Åsa Ekvall from the Erasmus Center for Sport Integrity & Transition, and Dr Antoine Duval from the T.M.C. Asser Institute. There will also be a Q&A with the audience.

Download the latest programme here

Register HERE

Reformism in transnational sports governance: Drivers and impacts

Legal and social drivers of reforms in transnational sports governance
The role of strategic litigation (before the EU/ECtHR/National courts) as a driver of reform;
The role of public/fan pressure groups on clubs, competition organisers and governments as a driver of change.
The impact of internal reforms in transnational sports governance: Cosmetic or real change? (e.g. IOC Agenda 2020+5, FIFA governance reforms, CAS post-Pechstein changes, WADA sfter the Russian doping scandal)
Emerging alternatives to private sports governance – the UK’s Independent Football Regulator.

The organization and regulation of mega sporting events: Current and future challenges

Mega-sporting events as legalized sites of digital surveillance
Greening mega-sporting events (e.g. carbon neutral pledges, environmental footprints of events, the impact of multiple hosting sites)
Mega-sporting events and the protection of human rights and labour rights (e.g. Paris 2024 Social Charter, Euro 2024 human rights commitments)
The Olympic Games and athletes’ economic rights (remuneration/advertisement)
Reviews of the legal issues raised at Euro 2024 in Germany and the Paris 2024 Olympic Games
Previews of the legal issues likely to have an impact on the FIFA 2026 World Cup and the Milano-Cortina 2026 Winter Olympic Games

Please send your abstract of 300 words and CV no later than 15 July 2024 to a.duval@asser.nl. Selected speakers will be informed by 30 July.

The Asser Institute will provide a limited number of travel & accommodation grants (max. 300€). If you wish to be considered for a grant, please explain why in your submission.

Join us for the first online version of our unique training programme on ‘Sport and human rights’ jointly organised by the Centre for Sport and Human Rights and the Asser Institute taking place on May 22-24 & May 27-29.

After the success of the first editions in 2022 and 2023 the programme returns, focusing on the link between the sport and human rights and zooming in on a number of topics, such as the UN Guiding Principles for Business and Human Rights and their application in sports. We will also adopt a human rights lens to sport governance and address freedom of speech, the rights of athletes, and access to remedy.

Tackling contemporary human rights challenges in sport

The programme brings together the latest in academic research with practical experiences from working in the field in an interactive package, fostering productive exchanges between the speakers and participants. Theoretical knowledge will be complemented by exposure to hands-on know-how.

Participants will have the opportunity to learn from experts from the Asser Institute, the Centre for Sport and Human Rights, and high-profile external speakers from both academia and practice.

What will you gain?

An extensive introduction to the emergence of the sport and human rights movement
A greater understanding of the normative framework for human rights standards in sport
A comprehensive overview of the latest developments in the interplay between gender and sports
Practical know-how to govern human rights in the context of sporting organisations
Practical know-how to address human rights risks in the context of day-to-day sports, including safeguarding
Practical know-how to access remedy in human rights disputes
The opportunity to engage in discussions and network with leading academics and professionals

Topics addressed in this summer programme include:

The emergence of the sport and human rights discussion/movement
The integration of human rights in the governance of sport
The protection of athletes’ rights
Access to remedy for sport-related human rights harms

Read the full programme.

Register HERE

In partnership with:

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Editor's note: This is a call for papers for a workshop inviting sports lawyers and historians to reflect on how the lex olympica developed within the last 128 years through the prism of challenges and disruptions to the Olympic Games and the sharp and incremental changes they provoked.

Background

The lex olympica are legal rules the International Olympic Committee created to govern the Olympic Movement. Since the revival of the Olympic Games in 1896, the lex olympica, with the Olympic Charter taking its central place, has undergone tremendous changes. It has increased not only in volume but also in complexity and reach.

While some changes were designed to give further detail to the Olympic values, others seem to serve as responses to numerous disruptions and challenges that the Olympic Games experienced on their way. History shows that the Olympic Games faced boycotts, apartheid, armed conflicts, wars, propelled commercialisation, corruption, critique based on human rights and sustainability, pandemics, and many other obstacles.

One can see triggers for changes in specific incidents, broader societal changes, external political interests, long-term internal processes, etc., or further differentiate them according to relevant stakeholders impacting the change, such as IOC, NOCs, IFs, NFs, athletes, commercial partners, television, activist groups, NGOs, governments, host countries, etc. Regardless of their taxonomies, all these challenges met different reactions and affected the Olympic regulation in various ways. The IOC chose to distance the Olympic Games from some challenges and fully embrace others.

Keynote speakers

Jörg Krieger, Associate Professor, Department of Public Health and Sport Science, Aarhus University; co-leader of the Lillehammer Olympic and Paralympic Studies Center; Associate Professor II Inland Norway University of Applied Sciences.

Mark James, Professor of Sports Law and Director of Research in the Manchester Law School at Manchester Metropolitan University, Editor-in-Chief of the International Sports Law Journal.

Deadline for abstract submission: 15 June 2024

Confirmation of participation: 30 June 2024

Publication: Selected contributions will be considered for a special issue at International Sports Law Journal

Contact information

Yuliya Chernykh (Associate Professor)

yuliya.chernykh@inn.no

Organizer

Lillehammer Olympic and Paralympic Studies Center (LOSC), Inland School of Business and Social Sciences and Legal development research group at INN University

Dear readers,

I have the pleasure to inform you that our (with Prof. Johan Lindholm and Alexander Kruger from Umeå University) edited volume entitled 'The European Roots of the Lex Sportiva: How Europe Rules Global Sport' has been published Open Access by Hart Publishing.

You can freely access the volume at: https://www.bloomsburycollections.com/monograph?docid=b-9781509971473

Abstract:

This open access book explores the complexity of the lex sportiva, the transnational legal regime governing international sports. Pioneering in its approach, it maps out the many entanglements of the transnational governance of sports with European legal processes and norms. The contributors trace the embeddedness of the lex sportiva within national law, European Union law and the European Convention on Human Rights. While the volume emphasizes the capacity of sports governing bodies to leverage the resources of national law to spread the lex sportiva globally, it also points at the fact that European legal processes are central when challenging the status quo as illustrated recently in the Semenya and Superleague cases. Ultimately, the book is also a vantage point to start critically investigating the Eurocentricity and the complex materiality underpinning the lex sportiva.

Table of contents:

1. Made in Europe: Lex Sportiva as Embedded Transnational Law - 1–14 - Antoine Duval , Alexander Krüger and Johan Lindholm

I. The European Roots of Lex Sportiva

2. Embedded Lex Sportiva: The Swiss Roots of Transnational Sports Law and Governance - 17–40 - Antoine Duval

3. Putting the Lex into Lex Sportiva: The Principle of Legality in Sports - 41–68 - Johan Lindholm

4. Europeanisation of the Olympic Host (City) Contracts - 69–92 - Yuliya Chernykh

5. The Influence of European Legal Culture on the Evolution of Lex Olympica and Olympic Law - 93–118 - Mark James and Guy Osborn

6. Who Regulates the Regulators? How European Union Regulation and Regulatory Institutions May Shape the Regulation of the Football Industry Globally - 119–152 - Christopher A Flanagan

7. The Europeanisation of Clean Sport: How the Council of Europe and the European Union Shape the Proportionality of Ineligibility in the World Anti-Doping Code - 153–188 - Jan Exner

II. The Integration of European Checks into the Lex Sportiva

8. False Friends: Proportionality and Good Governance in Sports Regulation - 191–210 - Mislav Mataija

9. Sport Beyond the Market? Sport, Law and Society in the European Union - 211–228 - Aurélie Villanueva

10. EU Competition Law and Sport: Checks and Balances ‘à l’européenne’ - 229–256 - Rusa Agafonova

11. Is the Lex Sportiva on Track for Intersex Person’s Rights? The World Athletics’ Regulations Concerning Female Athletes with Differences of Sex Development in the Light of the ECHR - 257–282 - Audrey Boisgontier

III. Engaging Critically with a Eurocentric Lex Sportiva

12. Lex Sportiva and New Materialism: Towards Investigations into Sports Law’s Dark Materials? 285–308 - Alexander Krüger

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

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the

Conference - Empowering athletes’ human rights: Global research conference on athletes’ rights - Asser Institute - 23 October

Luxembourg calls…is the answer from Nyon the way forward? Assessing UEFA’s response to the ECJ’s ISU judgment - By Saverio Spera

Women’s Football and the Fundamental Right to Occupational Health and Safety: FIFA’s Responsibility to Regulate Female Specific Health Issues - By Ella Limbach

The International Cricket Council and its human rights responsibilities to the Afghanistan women's cricket team - By Rishi Gulati

[Call for Papers] - International Sports Law Journal - Annual Conference - Asser Institute, The Hague - 24-25 October 2024 - Reminder!

[New Event] Feminist theory and sport governance: exploring sports as sites of cultural transformation - 9 July -15:00-17:00 - Asser Institute

[Call for papers] - International Sports Law Journal - Annual Conference - Asser Institute, The Hague - 24-25 October 2024

[Online Summer Programme] - International sports and human rights - 22 - 29 May 2024 - Last spots!

[Call for Papers] Through Challenges and Disruptions: Evolution of the Lex Olympica - 20 September 2024 - Inland School of Business and Social Sciences

[New Publication] - The European Roots of the Lex Sportiva: How Europe Rules Global Sport - Antoine Duval , Alexander Krüger and Johan Lindholm (eds) - Open Access

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