My Take on the Contract Quarrel

In a time when professional athletes are earning millions through endorsements, the WICB and WIPA are locked in a struggle over the rights to control player images. On one side is the WICB, which contend that they have a right to indefinite ownership of a player's image and by extension his endorsement rights, and on the other WIPA, which thinks that players should retain such rights.

After a marathon fourteen hour negotiating session, neither side is any closer to a solution, and with the WICB threatening not to select players who have not signed the offered contract, WIPA are accusing the WICB of acting in bad faith. At a time when the team seemed to be on an upswing after winning the ICC Champions Trophy for the first time, fans are left to wonder if our cricket really needs this type of animus between the two camps.

Let's take a closer look at the contentious 'clause 5' of the WICB proposed contract which states:

(a) The player acknowledges that the WICB has the sole and exclusive right to permit any person to represent that they, or their goods or services, have the sponsorship or approval of, or are in any way endorsed with the WICB or any WICB team.

(b) Without limiting clause 5.2, the Player agrees that at all times whilst representing the WICB (including whilst playing, training, attending official functions, attending media conferences and being present at a match venue) he will not do anything that constitutes a Player Endorsement in relation to a competitor of a WICB Major Sponsor unless he has a preexisting agreement with such a competitor that has been approved in writing by the WICB under this Contract or the Player's previous player contract with the WICB or the Player's agreement with such a competitor pre-dates any contract he has had with the WICB.

At a glance, this clause seems to be taking away, in one stroke, all the players rights to his own image, and worse, could possibly be seeking to reach into the past to bring that player who may have signed a personal agreement with some sponsor into direct conflict with this clause, in the eventuality that the WICB would enter into an endorsement deal with a company that produces a competing product.

Further, with no central contracts offered, aren't players, once they are not currently engaged in a tour, free to make money off their image or in any other way that they see fit? I decided to do some research on this issue and was lucky enough to get my hands on a professional team contract and I will share a few relevant clauses of that document. The first clause that leaps out of a contract (not the WICB) in my possession is the conciliatory tone that is taken in the preamble:

Fortunately, over the past few years, athletes have had increased opportunities to partner with the corporate sector for "commercial endorsements" and sponsorships. These opportunities are extremely valuable both to the athlete and to the national sport organization as a result of the indirect exposure afforded the sport in general and the financial stability for the athlete. The requires clear guidelines in the area of individual athlete sponsorship to ensure that the interests of all parties are protected to the greatest degree possible.

Here, this organization clearly recognizes the need for its athletes to maximize their income for the betterment of self and family. Further, the controlling organization also recognizes the ancillary benefits derived by the sport in general through such ?private? endorsements. The contract goes on to state in exquisite detail, the terms by which any athlete under their control may enter into a private endorsement contract:

The following principles shall govern all individual athlete sponsorships or endorsements:

3.1 must approve and sign all personal endorsements and has the right to disapprove any which may not be in the best interests of the Association, team or athlete. Such approval shall not be unreasonably withheld.

3.2 recognizes the rights of individual athletes to secure their futures through the use of personal endorsements and shall make all reasonable efforts to promote the endorsement potential of athletes within existing international and regulations.

3.3 The eligibility of the athlete must never be jeopardized by any commercial involvement.

3.4 The properties of the may not be used in any form of athlete personal endorsement without the prior approval of the .

3.5 The has the right to define full or limited sponsor exclusivity and various rights of refusal associated with such agreements. This includes the right to reasonably assign such limitations to personal endorsement agreements.

3.6 has the unconditional and exclusive right to enter into overall sponsor, supplier or commercial agreements on behalf of Association teams, groups, events or programs.

3.7 Athletes under the jurisdiction are required to abide by all overall Association or Team agreements, and may be prohibited or restricted from entering into private agreements with other commercial sponsors who may be deemed to be competitors with these Association sponsors.

Clauses 3.1 and 3.7 are the most important of this section. Here the governing body spells out in clear language that they have right of first refusal or in other words, the right to disapprove of any endorsement that may not be in the best interest of the Association, team or athlete. Again in a conciliatory note they note that such approval shall not be unreasonably withheld?.

In clause 3.7 we see clearly that this association and the WICB are on the same page as far as seeking to ensure that athletes do not sign with sponsors of competing products. Further, section 4 goes on to point out precisely when the athlete is governed by the terms of the contract:

4.2 Association, Team or Event Properties:

4.2.1 A specific photograph, sketch, likeness, signature or other similar individual or group athlete image identified by uniform, clothing, equipment or activity as part of the or National Team is property and belongs solely to the Association.

4.2.2 An athlete under the jurisdiction of the is considered to be engaged in Association or team activity under the following circumstances:

4.2.2.1 when wearing any item of supplied team clothing or equipment

4.2.2.2 when engaged in training or competition activity which is sanctioned, funded or part of approved Association development activities

4.2.2.3 when appearing in single or group photos of teams or competition activities

4.2.2.4 when traveling as a team or while in vehicles identified as team equipment

4.2.2.5 when identified in advertising and promotion together with team or logos, insignia, official phrases or other merchandising properties

4.2.2.6 while engaged in promotion on behalf of the , team and/or Official Sponsor/Suppliers such as fundraising, book promotions etc.

4.2.2.7 when appearing or identified in advertising of Team goods, products or services provided to athletes by official suppliers

In the event that there is a conflict between some pre-existing endorsement contracts that a player may have signed prior to signing this contract, clause 6.2.4 addresses such an eventuality:

6.2.4 If an athlete or crew has an existing or pending agreement with a sponsor or supplier in the same industry category and or in conflict with an existing or pending corporate partner, corporate identification cannot be displayed on the athlete's equipment when the athlete is under the jurisdiction of the as previously defined. In the instance that the athlete has a signed endorsement/sponsor contract with a sponsor or supplier in an industry category in conflict with a pending corporate partner, the may negotiate compensation for the athlete for the remainder of the term of the contract prior to finalizing an agreement with the corporate partner. The , on annual basis, will publish a list of all existing and pending corporate partners in sufficient time as to not impinge the athlete's ability to secure individual sponsorship.

In every instance we can see that every attempt is being made for both the athlete and the governing body to benefit from what should be essentially a symbiotic relationship. In fact, the governing body spells out in the contract exactly what the rights of the athlete are when NOT associated with the team in the following paragraph:

4.1.2 The properties which are the exclusive right of an individual athlete, when not associated with the team under the circumstances noted include:
name
image
photograph
likeness
autograph or signature
verbal or written endorsement
voice
film or video image
personal appearances

As can be seen from the terms of the sample contract, the WICB offering is not that far off from the norm in what they are asking of the selected players, except in the important area of offering to compensate or buy out the endorsement contracts of the players who had pre-existing agreements with Cable and Wireless.

On the other hand, before seeking any endorsements or sponsorships, the cricketers or their proxies should be familiar with team and WICB endorsement guidelines, e.g. conflict of interest rules. In this instance it appears that on both sides, these guidelines were ignored or never clarified. Yet, there is still ample common ground for both WIPA and WICB to find themselves on if they acknowledge that both parties have made mistakes and the bigger picture should be both organizations working for the betterment of West Indies cricket.