PROTECTING SPORTS IMAGE RIGHTS IN FRANCE

The image rights of sportspersons are a very valuable marketing and promotional tool, not least for football players and their clubs. As pointed out in a previous NEWS item, sports image rights are not universally recognised legally. However, in France, such rights are legally recognised and protected, based on the fundamental right to privacy which is enshrined in Article 9 of the French Civil Code.

In fact, these rights are so basic and important, which led to the French Football Federation agreeing to revise the terms of their players’ image rights standard agreement, after the well-known French football player, Kylian Mbappé, refused to take part in a French National Team photo shoot and other sponsors’ promotional activities prior to the 2022 FIFA World Cup, on the grounds that he did not wish to be associated with companies whose products and services conflict with his personal convictions and values.

Under French Law, sportspersons enjoy the right to control their image and any use of it, without their prior consent, constitutes an invasion of their privacy and can lead to injunctions and the payment of substantial damages.

However, football clubs are legally permitted, in France, to use their players’ images to promote club activities, without obtaining any consents each time, provided that such uses fall within the club’s current activities. This is a grey area of the Law, and it is advisable, therefore, for clubs not to rely on implied consents, but only on express consents, to avoid any adverse legal consequences.

Again, there are so-called ‘collective image rights’ arrangements, whereby clubs use the images of several members of the same team, for joint advertising and merchandising purposes. These also need to be carefully defined and managed for legal purposes, and, to be on the safe side of the law, there remains the basic need for actual rather than any kind of presumed consent.

Also, to avoid any Mbappé type situation arising, conflicts between individual players’ image rights and their use for club purposes, should be anticipated and covered by appropriate contractual arrangements.

Apart from these legal aspects, there are also some important tax aspects to be considered.

For instance, the so-called ‘Braillard Law’ of 2017. Under this Law, French football clubs may enter into agreements for the exploitation of players’ image rights, with significant tax benefits. These include the exemption of royalties, that are received under these agreements, from social security contributions, provided certain conditions are satisfied. Such exemptions, in the case of well-known players, can result in substantial tax savings.

In any case, as far as may be legally possible, other arrangements should be put in place to mitigate other tax effects from the commercial exploitation of football players’ image rights. However, before entering into any elaborate tax savings schemes, such as forming an image rights management company in an overseas tax friendly jurisdiction, expert legal and tax advice should be sought, and a cost/benefit analysis also made.

Whatever tax arrangements may be made, income derived from playing should always be kept separate from income derived from the commercial exploitation of players’ image rights. Also, the image rights should always be professionally and independently valued, rather than using a figure plucked from the air! See the English tax case of Hull City AFC (Tigers) Limited v HMRC [2019] UKFTT 227.

As will be appreciated, the commercialisation and protection of the image rights of professional football players and their clubs, as well as other elite sportspersons in France, is a complex affair requiring expert legal and tax advice and assistance.

For further information and advice on sports image rights in France, please email Dr Estelle Ivanova, the Head of our French Law Practice Group, at ‘ivanova@valloni.ch’.