In exchange for payment, brands will seek high profile athletes to promote their products and brand to audiences, gaining exposure across networks, public appearances, social media platforms and television broadcasts.
Products vary from brand to brand and depend on the sport and its audience. The merchandise could be; boots, bags, hats, helmets, gloves, jackets, leisure wear, tracksuits, shin pads, watches or even equipment.
A common error when entering an endorsement agreement is to look only at how much and how often a brand will make payment and if enticing sign the contract. Being an Ambassador of a brand places specific duties (obligations and restrictive covenants) on an athlete, in the traditional sense of consideration to a contract.
Deliverables example:
The Athlete is required to wear the brands merchandise to a specified number of events and post a specified number of pictures on social media in exchange for being remunerated.
Jermaine Malcolm from our Sports Law team outlines some of the issues and queries to consider when entering endorsement and commercial sponsorship contracts.
Obligations and Restrictions
What are the obligations / work orders required from an athlete?
Brands will want as much exposure as possible and in a number of forms to reach different audiences. Obligations may include one of or a mixture of personal appearances, photoshoots, personalised video recordings, social media engagement or wearing brand products to particular events.
Brands will also seek the use of name and identity, image, video, statements, quotes, testimonials, interviews and use of voice.
What types of restrictions / covenants are placed on an athlete?
The athlete often agrees or warrants to:
Follow instructions, uphold the goodwill of the brand and not say or doing anything to cause detriment to the brands image, not to adversely affect the credibility or business of the brand and not to incur expenditure or bind the brand in anyway.
Any content through mass communication, Social media, newspapers, magazines, radio, television and internet must comply with the brands industry practices.
The athlete must be free to enter the contract, and hold no contractual obligation preventing them from performing their duties. The athlete must agree that their services will not infringe or violate any rights of a person, firm or corporation.
The athlete must also indemnify the brand for all losses caused by non-performance
Breaching an obligation or warranty can lead to termination of the contract, loss of income and even require the brand to be refunded or compensated entirely or on a pro rata basis.
Do I need to attend all personal appearances?
You should consider whether you can fit personal appearances around training, match days, and your personal life schedules.
The contract may or may not specify particular appearances. They could be at events, television broadcasts, and specific to parent club or international duties. Personal appearances can be time restrictive, specific to events or a number of appearances per month or against the duration of the contract.
Failure to attend an appearance can result in breach and or termination of the contract. You should consider what remedies are available for non-attendance.
If the appearance is specific, you should consider what remedies and limitation of liabilities are available should a specified event be cancelled and out of your control.
Potential Conflicts with a Brand
Should I agree to promote the brand at match days?
A request to promote the brand at training or match days is likely to give rise to a conflict of interest. An athlete will have obligations to club sponsors, unless the same brand or, in circumstances where the club and brand sponsors have accepted a high profile athletes separate or lifetime endorsement agreement.
Conflict Example:
If Adidas and Chevrolet sponsor the team kit and AON sponsor the training kit, there agreements with the club will specify that the respective brands are worn during the training and match days. As such, the Athlete is unlikely to be able to enter in a contract to promote Nike brands during these periods.
There are limited exemptions as seen with Ronaldo and, it is also widely accepted that boots differing to clubs sponsorship do not cause tension on agreements.
So can I promote the brand outside of training and match days?
Even when agreeing to wear or promote brands on non-official duty, the athlete should check their employment contract and the rules and regulations of their governing bodies for conflicts of interest and potential breaches that could bring the sport into disrepute.
In some circumstances a high profile athlete might have an images rights agreement directly with the club and therefore the athlete has to be mindful of whether they can enter a separate endorsement agreement.
What if the brand requests promotion during international duty?
As with parent clubs, international teams have sponsors too, although not seen on the front of international football kits, because FIFA prohibits sponsor endorsement on the front of football shirts, save for the manufactures themselves.
You should consider any commitment to the international teams sponsors, governing bodies regulations, image rights agreement and appearances already required whilst on duty.
Photoshoots and Video Recordings
Who owns the copyright?
Inherently copyright is vested in the creator, often being the photographer or videographer, unless an employee and the employer retains its rights of work or the photographer is contracted otherwise.
Without protecting your image rights or retaining copyright, the photographer or company will be free to use the image as they please, particularly if you have contracted for them to do so.
Seeking legal advice can help you to retain image rights and license your rights under your own terms.
What rights do I have to remove images?
This will depend on the copyright of the image and any agreement or waivers signed. In the absence of copyright or image rights, there may be provisions for removal within an agreement.
An image is also personal data and you may have rights under the General Data Protection Regulation (GDPR) to remove an image.
Dependant on the content and use, you may have rights to a claim in libel or online harassment to remove publications.
Where will it be published?
Once an image is published it is to the world at large and more often than not copied and spread around various hosts. Notably, the copyright remains with the original creator and not with the creator of the copied image.
Retaining your image and copyright can help with damage limitation and control over image distribution and sharing.
Social Media Engagement
Will I offend the public?
Carrying out due diligence by researching the brand and its products is pivotal to prevent negative associations. A storm of social media backlash is never inspiring.
How often will it published?
This will depend on the contract terms. It could be open ended or throughout the duration of the contract.
Generally, copyright in images lasts for the life time of the creator plus 70 years.
Am I prohibited by the platform?
Most platforms allow for paid promotional content. However, consideration should be given to events out of the athlete’s control, like the platform removing a post and whether that could constitute a breach of the endorsement agreement.
Personal Rights
What rights am I giving up?
The brand will seek use of your identity. The Brand is contracting the use of your name and status to promote its goods to an audience or following. To not identify the athlete would be of little value to the brand. However, standard contracts are often broad and request use of identity without specifying what the particular use would be. It is important that your legal experts clarify and set out the terms in which the use of your identity is permitted.
Brands may also seek exclusivity, thereby prevent you from entering into another endorsement deal with other brands. You should consider If the brands is requesting exclusivity with regards to its competitors or against all brands whatsoever.
Match rights are often in agreements allow the brand to re-sign the athlete or have first refusal on matching any subsequent deals.
What part of my identity is the brand seeking to use?
Identity usually covers a wide range of personally identifiable characteristics such as; name, voice, testimonials, interviews, still images, photographs, recorded images, video medium, statements, quotes, appearances and other indicia.
Where will my identity be used?
Brands will often seek unrestrictive use to allow them to promote across different forms of medium.
Brand Obligations
What are the brands obligations?
Notwithstanding payment, brands will inherently provide a work order specifying the deliverable required of an athlete.
The brand will also provide a non-exclusive right and worldwide license of its trademark.
Who pays the expenses?
The brand will often cover expenses on proof of receipt.
The brand will also cover expenses associated with appearances such a bill boards, banners etc.
Brands will also supply promotional material periodically, usually free of charge or at a discounted price. You will likely get to keep the product/s but a brand can retain title in the product should it wish to do so.
Does the brand have any restrictive use or covenants?
Whilst the athlete is required to uphold the goodwill of the company, its image and reputation, it is often overlooked that the athlete themselves have goodwill, image and a reputation to protect.
A brands standard terms agreement will unlikely restrict itself and you should seek legal advice on how to protect your own image and reputation.
Contact Blaser Mills Law
At Blaser Mills Law, we act for athletes, sponsors and clubs on endorsement and sponsorship agreements.
Contact our specialist sport lawyers for any queries you have regarding image rights, copyright, endorsement and sponsorship agreements on 0203 814 2020 or email enquiries@blasermills.co.uk.