Athlete's Image
This month Forbes published the ranking of the highest-earning athletes. In the ranking, the incomes of athletes were divided into those received in connection with their sports achievements and those that came from advertising contracts. Interestingly, fifth on this list, tennis player Roger Federer, earned 67 million dollars last year, of which only 9 million was from tournament winnings. The remaining 57 million came from advertising contracts, which are agreements related to the rights to use the athlete's image. In this article, I will focus on the regulations concerning the right to image, in the context of athletes' images.
The image is one of the personal rights of a person. The concept of personal rights has not received a legal definition. The definition developed and accepted in case law assumes that personal rights are non-material values related to a person's personality, universally recognized in society. Article 23 of the Civil Code contains a non-exhaustive list of personal rights, where alongside the image, health, freedom, name, scientific, and artistic creativity are also mentioned.
Personal rights are protected, and the person whose personal rights have been violated may demand the cessation of this action, unless it is unlawful, as well as actions necessary to remove the effects of the violation, and compensation and damages if the violation resulted in harm. The concept of the image itself has also not been defined by the legislator, but it is assumed that the image is a set of external characteristics allowing for the identification of a person.
Since the image constitutes a person's personal right, the person is the controller of their own image, so it depends on them whether they grant permission for its dissemination. However, there are certain exceptions to this rule. The Copyright and Related Rights Act provides that the dissemination of a person's image does not require permission in the case of:
• a person widely known, if the image was made in connection with their performance of public functions, especially political, social, and professional functions,
• a person who is only a detail of a whole such as an assembly, landscape, public event.
Moreover, in the absence of explicit reservation, permission is not required if the person has received remuneration for posing.
In the context of professional athletes, the most important of the exceptions mentioned above concerns widely known individuals. The image of an athlete can be captured, for example, in a photograph and disseminated under two conditions. Firstly, the image must be made in connection with the performed function. In the case of an athlete, this will certainly be an image taken during sports competitions, training, or other forms of preparation for sports events. Secondly, the dissemination of the image must be related to the presentation (reporting) of the functions performed by the person whose image was taken.
To illustrate this, the image of a sportsman can be used in connection with reporting on a sports event, but not for commercial purposes. It is obvious that advertising a product using a photograph of an athlete without obtaining separate consent is unlawful and constitutes a violation of their personal rights, including the right to their image.
In connection with the above, a professional athlete participating in team sports usually enters into an agreement with the club allowing the employing club to use their image. This can be a separate agreement or a commitment included in the contract for professional sports, which is standard in the case of football. The sports club wants to ensure the right to use the player's image for marketing purposes, including promoting matches or selling club merchandise. Granting permission to use the image is usually linked to the player's commitment to participate in any promotional activities organized by the club or its sponsors. The player thus undertakes to participate in marketing events if the club informs them of such a need in a timely manner. In standard player contracts, clubs stipulate that the compensation specified in the contract also includes payment for the use of the athlete's image.
However, there are no legal obstacles to separating these two issues. One of the clubs in the football premier league decided to make such a separation some time ago, aiming to circumvent sanctions imposed by the licensing committee. The club was fined, prohibiting it from paying newly contracted players compensation exceeding 5,000 Polish zlotys per month. In this regard, the player was offered a contract within the range defined by the sanction, while the remaining part of the compensation was paid by an external sponsor as remuneration for the permission to use the player's image.
Just as the rights to the athlete's image in the relationship between the club and the player are regulated by the appropriate agreement, the issue of the rights to the athlete's image as a member of the national team in the national team uniform has been regulated by law in Article 14(1) of the Sports Act, which states:
A member of the national team grants, on an exclusive basis, their image in the national team's uniform to the Polish sports association authorized to use this image for its economic purposes within the scope defined by the regulations of this association or the international sports organization operating in that sport.
Article 14(2) concerns a member of the Olympic team and states:
A member of the Olympic team grants, on an exclusive basis, from the moment of being called up to the Olympic team, their image in the uniform of the Polish Olympic team to the Polish Olympic Committee, which is authorized to use this image for its economic purposes within the scope defined by its regulations or the regulations of the International Olympic Committee.
The Sports Act provides for a special regulation that allows sports associations and the Polish Olympic Committee to use the athlete's image. It should be noted that the rights granted to these entities are limited only to the image in the uniforms of the national team and the Olympic team.
Therefore, the athlete remains the sole owner of their rights to the image in uniforms other than those mentioned above. The national team uniforms include not only the uniforms worn by athletes during competitions but also the attire used during preparations for sports competitions, such as tracksuits, sweatshirts, jackets, etc. The discussed provision thus grants separate rights to Polish sports associations and the Polish Olympic Committee. Consequently, a player cannot dispose of their image in the national team uniform without the consent of the association or committee.
This raises the question of whether consent to use the image is granted automatically through participation in the national team training camp or requires a separate agreement, as suggested by the wording of Article 14(3) of the Act 1)Before being qualified for the national team or the Olympic team, the player consents to the dissemination of their image in the uniform of the national team within the meaning of Article 81(1) of the Act of February 4, 1994, on copyright and related rights (Journal of Laws of 2006, No. 90, item 631, as amended).. Without delving into detailed legal considerations here, it is accepted 2)by the Supreme Court that the player's desire to represent the country and belong to the national team is equivalent to granting consent.
In this context, we can recall the most publicized dispute regarding the right to the image of an athlete, between a player of the Polish national team and the sponsor of the national team, i.e., the proceedings brought by Maciej Żurawski against Telekomunikacja Polska S.A., the then main sponsor of the national football team. This dispute took place during the period of the previous Sports Act (the qualified one), which was almost entirely transferred to the currently applicable Act 3)the Sports Act expands, among other things, the circle of entities entitled to use the athlete's image to include the Polish Olympic Committee, hence there is no need to separately discuss these changes.
The player demanded the cessation of the dissemination of his image and requested a ban on its future infringement in the materials used by the defendant for advertising and marketing, especially those broadcasted on television, as well as those used in leaflets, posters, magazines, banners on websites, and company stationery. Additionally, he requested the defendant to undertake the necessary actions to remove the effects of the infringement of his personal rights by submitting an appropriate statement.
The player's argument, which was shared by the court of first instance, aimed to demonstrate that the law grants the sports association the right to use the player's image in the team's uniform, but this right does not include the right to transfer the consent for the use of the image to other entities. However, the Appellate Court did not share this argument, changing the contested judgment and dismissing the lawsuit. As a result of the cassation appeal lodged by the plaintiff, the Supreme Court issued a decision 4)case no. I CSK 160/09, stating that the provisions of the Sports Act 5)the qualified Sports Act, Art. 33(1) establish, for the benefit of the Polish sports association, a specific subjective right to use the athlete's image, which means that without the association's consent, the player cannot authorize third parties to use the athlete's image in the team's uniform.
It also recognized that the use of the image for economic purposes also means a profit-oriented purpose, and therefore the provision authorizes the association to enter into mutual agreements with sponsors, under which it undertakes, in exchange for monetary consideration, to make the player's image available. A similar decision was also made in the case brought by Kamil Kosowski. From both of these judgments, it can be concluded that the Polish association (and the Polish Olympic Committee) does not need to obtain a separate written consent from the athlete to use the image in the team's uniform, and that the association is entitled to remunerated provision of this image to other entities for the purposes of using the image for its economic purposes within the scope defined by the regulations of this association or the international sports organization operating in that sport.
The commercialization of personal assets and the extraordinary popularity of professional athletes mean that revenues from the use of their image can constitute a significant percentage of their income. Therefore, when entering into contracts for professional sports activities, athletes should pay attention to the content of the contract regarding limitations on the rights to dispose of their image. Entities such as clubs or sports organizations should ensure the right to use the athlete's image to the extent necessary to achieve the goals related to their own activities.
Foto: Grzegorz Jereczek / Foter / CC BY-SA
1. The player, before being qualified for the national team or Olympic team, consents to the dissemination of his image in the national team's attire within the meaning of Article 81(1) of the Act of February 4, 1994, on Copyright and Related Rights (Journal of Laws of 2006, No. 90, item 631, as amended).
2. According to the Supreme Court (SN)
3. The Sports Act expands, among others, the circle of entities authorized to use the athlete's image to include the Polish Olympic Committee.
4. Case No. I CSK 160/09
5. Sports Act on qualified sports, Article 33(1)