Crossed Wires: Image Rights in WI Cricket

A sportsperson playing a team sport can exploit his image rights in different capacities. For example, an international footballer can exploit his rights as an individual in their own name, as a member of his club and also as a member of the national team.

The term 'image rights' denotes the commercial use of a person?s name, image, voice, signature, nickname and other personal attributes in advertisements, marketing and all other forms of promotion.

The fact that a sportsperson can exploit his image rights in different capacities gives rise to potential conflicts between the different parties wishing to exploit the rights in each context. It also presents a unique opportunity for parties to engage in ambush marketing. If a company?s main competitor is sponsoring the national team with the effect that that market is foreclosed, the company can instead endorse a prominent member of the national team in their individual capacity to try to ensure that the public associates the company or its products and services with that particular team.

This article investigates a recent example of a high profile conflict that arose in the world of cricket, and assesses what can be done to try to avoid such conflicts in future.

BACKGROUND:

The problem of being able to exploit image rights in different capacities, and having different sponsors associated with those capacities, caused problems during the Cricket World Cup in 2003. Although the issue has reared its head in the context of both rugby and football, it has recently caused controversy in the cricket world again.

Cable & Wireless (C&W) had been a major sponsor of West Indies cricket for nearly 20 years. In March 2004, C&W notified the West Indies Cricket Board (WICB) that it would not be renewing its sponsorship of the West Indies cricket team. Around that time C&W entered into individual endorsement deals with a number of the players of the West Indies team in their individual capacities.

There was already talk at that stage that Digicel (a direct competitor of C&W in the region) was the favourite to replace C&W as the sponsor of West Indies cricket. The WICB did in fact conclude a sponsorship agreement with Digicel in July 2004, pursuant to which Digicel became the main sponsor of the WICB.

In November 2004, the WICB was faced with leaving several of the leading players out of the West Indies? tour to Australia because of the sponsorship clash between Digicel, the main sponsor of the WICB, and the players? individual endorsement deals with C&W. The players who had concluded individual endorsement agreements with C&W refused to sign the WICB?s player contracts for the tour in protest at its policy over personal endorsement deals. The WICB was not prepared to select players who had concluded personal sponsorship agreements with a competitor of the main sponsor of the national team. The players felt that the player contracts compromised their ability to exploit their own commercial rights.

RESOLVING THE DISPUTE:

An independent adjudicator, Justice Adrian Saunders, was appointed to help resolve the dispute between the players and the WICB. The WICB?s player contracts precluded individual players, after their selection and during the series for which they were contracted, from undertaking, participating in or endorsing any advertising ?as a member of the team? without the permission of the WICB.

However, when the WICB entered into its sponsorship agreement with Digicel it undertook to use its best endeavours to ensure that none of the players entered into contracts with a competitor of Digicel pursuant to which such competitor could use their image rights in any promotional, marketing or advertising activity. Accordingly, the WICB was obliged to provide Digicel with a ?clean team?, a team in which no player was endorsing a competitor?s product or services, whether in an individual or in a team capacity.

The Digicel sponsorship agreement did not distinguish between the players concluding endorsement agreements with competitors of Digicel in their individual capacity and in their team capacity.

The players entered into their personal endorsement agreements with C&W without securing the permission of the WICB as they believed that they only needed to obtain its approval if they undertook such sponsorship in their capacity as members of the West Indies cricket team, as opposed to in their personal capacities. The players acted on the basis of what the WICB player contracts had allowed for the past couple of years.

The WICB contended that any attempt to create a distinction between an individual player and the player as a member of the team was wholly artificial and that whatever attributes the individual player had for the purpose of endorsements, he derived them purely from his capacity as a member of the team.

MEANING OF ?AS A MEMBER OF THE TEAM?

The issue that needed to be determined was the meaning of the phrase ?as a member of the team? in the WICB player contracts and the consequences of that meaning. The adjudicator found that cricket players could undertake endorsements in several different capacities. The fact that the player was, without prior approval, prevented from concluding endorsement agreements as a member of the team implied that otherwise than as a member of the team the player was free to conclude endorsement agreements.

He also found that although the distinction between endorsing products by the player as a member of the team and by him in his own individual capacity was very subtle, there was indeed a distinction. He accepted that the phrase ?as a member of the team? connoted some passing off by the player of his connection with the West Indies team, either by defining himself as a member of the team or by using the intellectual property of the team (such as its logos or team clothing). The decision recognised the players? right to endorse products in their individual capacities under the terms of the WICB player contracts.

AVOIDING CONFLICT:

It appears that the WICB promised Digicel more than it could deliver. The WICB had not secured the necessary restrictions on the players? ability to exploit their image rights in their own individual capacity that they needed to pass on to Digicel.

The WICB could have avoided the problem if it had made it clear in its player contracts that players could not enter into sponsorship agreements with competitors of the main sponsor of the WICB, whether in their individual capacity or as a member of the West Indies cricket team. The WICB would have been able to give its main sponsor some protection against ambush marketing in this way.

It could also have provided exclusivity to its main sponsor by including in the player contracts the following restrictions:

• That the players were not able to use the logos of the WICB or the team in their personal sponsorship arrangements without the WICB?s consent; and

• Further, that a sponsor of an individual player could not imply that it was a sponsor of the team.

The players would have had to ensure that they reflected these restrictions in their individual endorsement agreements.

From the players? point of view, when they enter into endorsement agreements with sponsors it is important to ensure that the provisions of such agreements do not conflict with their player contracts. Accordingly, the sponsors of the players should be made fully aware of the restrictions imposed on the players that they are sponsoring, and that their exclusivity is reserved only for the players in their individual capacity and not in their team capacity.

COMMENT:

Although lawyers and most of the sports industry (including, somewhat reluctantly, the sports? governing bodies) now seem to accept that sportspersons can exercise their image rights in different capacities, the problem is that the public do not necessarily neatly distinguish between the different capacities of a sportsperson. Marketing executives know this and exploit the public?s ignorance by engaging in ambush marketing.

The issue will not go away easily or quickly, and it will necessitate all interested parties, including governing bodies, players, player associations and sponsors, to sit down together and clearly define the boundaries of who can exercise what rights and in what context.

The challenge that faces sports? governing bodies is trying to balance the interests of the players, the club and the national team and their respective sponsors to ensure that the pool of sponsorship money is shared fairly and equally between them for the benefit of the particular sport in question.

The only way to control the problem of conflicting sponsors effectively is to do so contractually. If this is done properly the respective parties? expectations will be managed and all participants will know the boundaries of their rights.

* Dalton Odendaal is a member of the sports group of Harbottle & Lewis, a legal firm that provides services to organisations and individuals working in the media and entertainment industries. This article first appeared in the May edition of The In-House Lawyer. It is republished with permission from the author.