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. 

Part 1. EU free movement and the internal market

The EU internal market and its free movement of people declination was at the centre of the Brexit referendum. The potential consequences for the Premier League and professional footballers have been commented upon thoroughly elsewhere. Yet, Brexit’s impact is not restricted to British sport’s leading product, such as the Premier League, nor solely the freedom of movement provisions.

The controversy: free movement of sportspeople

The right to free movement is one of the fundamental freedoms guaranteed by the EU to its citizens and it is at the core of EU treaties. It means that any direct or indirect discrimination based on nationality is prohibited (article 18 TFEU), leaving EU citizens free to exercise their right to move freely and reside within the territories of the 28 EU Members States (article 21 TFEU). These rights apply to both professional and amateur sportspeople, and Brexit will have consequences for them whether they are British citizens or from other Members States.

First, in relation to professional and semi-professional sportspeople, when looking for example at consequences of Brexit on the Premier League, it is the principle of free movement of workers (article 45 TFEU) that is at stake. It should be noted that Brexit will impact not only footballers but also all professional athletes that are considered as “workers” within the meaning of the Treaty. In this context, “workers” means those who are gainfully employed (as stated in 1976 by the European Court of Justice - ECJ - in the Donà and Mantero case, 13/76). These athletes might be rugby or basketball players in a professional clubs or cyclists in a team to give a few examples. Also, other individuals associated with sportspeople may rely on the provisions of free movement of workers, such as doctors, physiotherapists, stable staff, coaches or administrative staff. 

Free movement also currently applies to professional and semi-professional sportspeople that are not “workers”. Freedoms of establishment (article 49 TFEU) and provision of services (article 56 TFEU) apply to athletes that are self-employed (for example tennis players, sailors or horse riders) or to instructors, coaches, or physical trainers. Sports agents may also rely on both freedoms if they are established in another of the EU’s Members States and/or if they are providing their services during a player transfer for example. To illustrate these provisions with genuine practical cases, you may want to think of a UK tennis player that has established himself in France for training purposes for a long period, or of Italian professional horse rider coming to the UK to provide a couple of hours of training for a master class. These situations are much more common than one believes and Brexit might have an important impact on significant number of people working in the sport sector.

At the time of writing it is impossible to know (or even guess) how events will unfold or what the future position of the UK toward the EU will be after Brexit negotiations. The impact will have to be assessed depending on whether and, if so, how the UK will have access to the internal market. A few UK sports officials have raised their voices to recall, for example, the strong position of British football in Europe and asked for exception regimes for their players. Without intending to sound pessimistic, EU officials have already made it very clear that the UK may not pick and choose how they access the internal market and it is difficult to see how a “sport exemption” regarding free movement of athletes may be granted against any other sectors. A solution might be to implement national UK legislation giving free access to professional players to the UK labour market. A problem will however remain regarding free access to the EU market for UK players as, in that case, there is no obligation for the EU to grant reciprocity. If the professional and semi-professional sport sector in the UK (and in the EU as well for UK players) wishes to still be able to recruit athletes that are EU citizens after the exit as easily as it was before Brexit, it should advocate for an EEA agreement (“EEA type” - which seems inconsistent with the intended aims of the referendum as, in this situation, the UK would retain its access to the internal market but would give up its voting rights). 

In the worst case scenario of a complete exit from the EU, is there any good news for UK sport? British sports federations will be able to implement rules entailing direct discrimination, including introducing quotas of players based on nationality or favouring their own athletes which is, for now, completely forbidden under EU law. On the other hand, the return of visas and work permits between the UK and the EU might lessen the level of competition in national championships as it will hinder exchanges of athletes on both sides. It is quite unsure that this is the best option for British sport. Moreover, one should remember that non-discrimination is also granted to sportspeople coming from non-EU countries under the terms of agreements between the EU and third countries (Igor Simutenkov C-265/03). For example, under the terms of the Cotonou Agreements, it is impossible to impose nationality based quotas for sportsmen from Africa, the Caribbean and the Pacific Group of States provided the player entered the territory of one of the Member States legally, which is a strict condition. This principle implies that a player coming from one of the countries covered by that agreement is not considered as a “foreign” player if quotas for such players are in force in that sport (this is the case for Rugby Union for example). It also means that the UK not only has to renegotiate its relationship with the EU but with all other non-EU countries that are, for now, covered by these association or partnership agreements. British sport will need to be cautious about it.

It should also be noted that Brexit will lead to the end of the mutual recognition of professional qualifications (see directive 2005/36). This principle applies in the sport sector as well whenever the possession of a diploma is legally required; Member States cannot refuse to permit EU citizens from other Member States to participate in a profession if they hold a recognised qualification from their country for working in that profession unless there are substantial differences in the level of qualification or duration of training. This applies to coaches (i.e. ski instructors) or doctors in the sport sector for example. Another very specific example is the European professional card (directive 2013/55/EU, applicable from 18 January 2016) that has been implemented for mountain guides (and physiotherapists) and allows for a simple and rapid recognition of professional qualifications. Consequences might be less important where an international sports governing body sets up its own set of qualifications (think about the UEFA Pro Licence for football coaches).

Free movement provisions likewise apply to amateur athletes. Based on a combined reading of articles 18, 21 and 165 TFEU, EU citizens who participate in an amateur sporting activity by using their right to free movement should not be discriminated on grounds of nationality. It is, once more, nearly impossible to currently illustrate the impact of Brexit with tangible facts but it means that free movement of EU citizens who are amateur athletes will be affected while coming to or from the UK for competition or training purposes. Furthermore, in terms of injuries or accidents while training or competing, it should be recalled that Brexit may affect the European health insurance system. This system gives every EU citizens access to state-provided healthcare during a stay in any of the EU countries under the same conditions as people insured in that country.

Finally, it should be mentioned that Brexit may impact upon the sport sector as it has links to EU citizenship. A complete Brexit will entail that sports supporters cannot travel as freely between the UK and the EU as they used to. Again, a return to a strict visa policy seems unlikely but giving up EU citizenship will have consequences on border and passport controls and on the organisation of sport events in the UK. The UK and the EU will also no longer be entitled to the cooperation organised against violence and hooliganism within the EU (Council Decision 2002/348/JHA, security at international football matches), or, at least, not in the same terms.

The underlying problem: free movement of goods

Free movement of goods is an essential element of the single market (articles 30, 34 and 35 TFEU) and it provides for the prohibition of measures that restrict trade between Member States, including not only customs duties and quantitative restrictions on imports and exports but all equivalent measures. Sports clothing and materials are covered by these provisions. We shall probably enter a period of uncertainty but the future of trade relations between the UK and the EU will be at the top of the agenda as soon as the negotiations start. Also, in order to facilitate free movement, European standards for sporting purposes goods have been set up by the European Committee for Standardization – n°136 - (full list of standards here). This probably exposes the EU to the bureaucratic suspicion but these harmonisations are necessary to facilitate trade between the EU and to ensure a common level of consumer safety. UK/EU negotiations on Brexit will surely and primarily focus on trade agreements which hopefully will lower the risk of a return to full quotas and tariffs obligations. Nonetheless, trade between the UK and the EU will suffer as much in the sport sector as for other sectors and, again, an EEA type agreement would be welcome for both parties. 

One specific category of goods is important for the sport sector, namely the circulation of civil firearms. EU sport shooters have access to a European firearms pass under directive 91/477/EEC on the control of the acquisition and possession of weapons. This means that they can cross EU internal market borders without prior authorisation in order to attend competitions and trainings. Brexit will withdraw the possibility of obtaining that pass which may result in more red tape for sportspeople at the borders.

Finally, free movement also concerns horses which under EU law are qualified of “goods intended for sporting purposes”. This term is used to refer to the set of directives regulating the movement of and trade in equidae at the EU level. Three different directives are in force and may be impacted by Brexit. In turn, this will have severe consequences for the UK as the horse sector, whether for competition or horseracing, is really strong. Identification requirements – name, genealogy and victories – are established by EU law (directive 90/427/EEC and regulation 504/2008/EC) under strict animal health conditions and “regional” quarantine principles in case of disease (directive 2009/156/EEC). Trade of horses and participation in competitions within the EU is subject to non-discrimination and equal treatment principles between horses without distinction based on the Member States of origin (directive 90/428/EEC). This principle applies to the rules of competition, the judging and the prizes awarded for that competition. Some exceptions regarding specific stud-book, regional or traditional competition are possible. Finally, it should also be noted that a European Community code relating to veterinary medicinal products exists to implement the free movement of veterinary products and to prevent animal doping. Re-entry of registered horses for racing, competition and cultural events after temporary export to non-EU countries is also regulated (directive 93/195/EEC). The UK horse sector will have to change its habits (see, for example the reaction of British horseracing authority to the Brexit vote) after Brexit and the movement of horses with the EU will be more difficult as a consequence. However, as a former EU Member State, the UK will certainly negotiate a favourable agreement with the EU even though obligations concerning the arrival from and return to their home countries outside the EU of sport horses is already regulated. Additionally, it will be possible to negotiate bilateral agreements.[1]

The impact of Brexit regarding the rules of the internal market is important and goes further than just football and the Premier League. The push for a trade agreement with access to the EU internal market here has a special importance for UK sport as for the EU. Otherwise, a complete Brexit will surely end up in a difficult step backward alongside a complete reorganisation of national rules.  

[1] Such an agreement – Tripartite Agreement (TPA) – already exists between France, the United Kingdom and Ireland.

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