SPORTS IMAGE RIGHTS IN SWITZERLAND
Image rights are not legally recognised as such in all countries around the world, for example, in the United Kingdom, where they are only recognised for tax purposes. In the United States, image rights, known, as rights of publicity, are not recognised in all the States of the Union.
In Switzerland, an individual’s image right is legally recognised as part of his or her personality rights and is primarily protected by the Swiss Federal Constitution and the Swiss Federal Civil Code.
There is no register of image rights in Switzerland, as there is, for example, in Guernsey in the English Channel Islands.
Where image rights are legally recognised, they confer on the individual the legal right to control the commercial exploitation of their identity, and all that that entails, and prevent its unauthorised appropriate for commercial purposes. In other words, without their consent.
Image rights encompass, amongst other things, an individual’s name and nickname, likeness, voice and other personal characteristics, including their life story.
In sport, image rights are a very valuable asset. For example, Cristiano Ronaldo, the world’s highest paid sportsperson, reputedly earns around $US 60 million (around Sw.Frs. 52 million) a year from the exploitation of his image rights.
Accordingly, the commercialisation and legal protection of sports image rights is very important indeed and requires expert professional advice and assistance.
As mentioned, any commercialisation of an individual’s image rights requires consent. And, without consent, entitles him or her to seek legal protection, including a cease-and-desist order, damages and an information disclosure order against the infringing party.
In practice, sportspersons, such as footballers, usually grant their clubs a licence to commercialise their image rights, including a right to sublicense these rights to other organisations, including partners and sponsors. It is common for clubs and other organisations to utilise the image rights of sportspersons for marketing, promotional and merchandise purposes, including branded products.
The extent of the commercialisation of an athlete’s image right thus depends upon the agreements between (i) the athlete and his or her club and (ii) the athlete’s club and any other organisation.
In addition, some athletes have their own direct licence agreements with organisations, and these may clash with arrangements that their clubs may already have made. The club and the other organisation will then have to settle any conflicting interests.
Often direct licence agreements include sporting performance criteria required of the sportsperson, to ensure that his or her brand remains valuable, with corresponding termination provisions if such criteria are not met.
Likewise, it is prudent to include in these agreements so-called ‘morality clauses’ if the sportsperson tarnishes his or her brand with criminal or other socially unacceptable behaviour, including extra-marital affairs, which again can have an impact on the value of the sportspersons’ brand. These clauses, to be legally effective, need to be drafted very carefully and objectively.
Sportspersons can and should protect their brands by various legal means possible. For example, by registering their names and/or nicknames as trademarks in respect of appropriate goods and services. Also, for example, footballers can register their shirt numbers. For example, Cristiano Ronaldo has registered ‘CR7’ for a number of products, including a clothing line and fragrances. Infringements of registered trademarks may result in civil remedies and criminal sanctions.
Sportspersons should also, in this digital age, register domain names. Again, Cristiano Ronaldo has registered the domain name <cristianoronaldo.com>. Such domains may be protected against so-called ‘cybersquatters’, who without authority register identical or confusingly similar domains, under a WIPO (World Intellectual Property Organization) ICANN (Internet Corporation for Assigned Names and Numbers) complaints procedure, which is effective and inexpensive. Under this procedure, the disputed domain name may be cancelled or transferred to the complainant.
As will be appreciated, the commercialisation and legal protection of sports image rights, although very lucrative, is also very complex and we are able to provide the necessary professional advice and assistance, including the handling of legal infringement and enforcement proceedings, for clients.
We also advise clients on the structuring and drafting of sports image rights arrangements, for tax sheltering purposes, as far as may be legally possible, on an individual case by case basis.
For further information, please email ‘info@valloni.ch’