Case review: US Soccer Federation v National Players Association (use of player likenesses)

Published 02 February 2017 | Authored by: Jake Cohen, Carol Couse

 “Soccer is called ‘the beautiful game,’ but the collective bargaining process behind the sport can be ugly.

The above quote, from Pelé’s autobiography, is the first line in United States Court of Appeals (Seventh Circuit) decision in the case, United States Soccer Federation, Inc. v. United States National Soccer Team Players Association, issued in September 2016.[1]

It is an apt quote, as true now as when it was first written in 1977. From recent disputes and contentious negotiations in both the men’s and women’s game in the United States[2] and Australia,[3] to industrial action by Spanish footballers,[4] and a revolving door of contract disputes between players and clubs at all manner of domestic and international dispute resolution forums, the sun never sets on labour issues in football. Increasingly, negotiations and disputes involve the use of player images by sponsors of the national associations.

The Seventh Circuit decision held that the USSF, the national governing body for soccer in the United States, does not require approval from the U.S. Men’s National Soccer Team Players Association (“USMNT”)[5] for the use of player likenesses in USSF-sponsor advertisements, as long as six or more players are featured in that advertisement. This practice continues to be controversial and is currently under challenge by the U.S. Women’s National Team.

This article provides a review of the case, focusing specifically on the image rights component of the decision. Additionally, the author provides commentary on status of image rights for the US women’s national team, and provides a brief comparative perspective on the degree to which England international footballers’ image rights are controlled by The Football Association (The FA).

 

CASE SUMMARY

Since 1997, the USSF and the USMNT have negotiated and executed four separate collective bargaining agreements (CBAs).[6] The CBA governs the terms and conditions under which the national team players compete for the United States.

In US soccer, both at the club and international level, and indeed in all major professional sport leagues in the United States, the CBA is the foundation upon which not only the employer-employee relationship is built, but is, by far, the single most important document in each of the respective leagues.[7]

The CBA at issue in this case was established in 2011, revised in 2013, and expires in 2018.[8]

The dispute arose over Section 6 of the Uniform Player Agreement (UPA), which forms part of the CBA. Under Section 6(b), the USSF is not permitted to use, or allow others to use the player’s likeness without the agreement of the player.

However, there are exceptions to this general rule, and in particular, the exception contained in Section 6(f)(i), “which governs sponsor use of player likenesses for groups of six or more players,”[9] states as follows:

Six or More Players – Use by Federation Sponsor. If Player’s Likeness is used by a “Partner” of the Federation (as defined in 6(h)[10]) for any Non-commercial Use or in a Partner’s advertising or promotions, and if the advertising, promotion, or Non-commercial Use includes six (6) or more members of any Federation national team (e.g. team poster or collage), Federation will request, but not require, the Partner to make a contribution in an amount to be determined in the Partner’s sole and absolute discretion to their applicable Player Pool(s), provided however, with respect to any use by a Partner in a “Spot” (as defined in 6(h)[11]), prior to such use, Federation shall provide a copy of such Spot to the Players Association for its approval, which approval shall be considered in good faith.[12]

It is this clause from which the dispute arose.

From 2001 until 2013, prior to authorising sponsor use, the USSF voluntarily submitted print creatives to the USMNT for review.[13] In 2013, the USMNT rejected a proposed advertisement by the USSF’s tequila sponsor, el Jimador. The USSF then stated that it had “no contractual obligation to submit print/digital creative pieces containing the likeness of six (6) or more national team players to the USMNT for its advance approval” and would no longer be doing so in the future.[14]

The USMNT argued that the CBA/UPA requires the USSF to get approval from the USMNT before using players likenesses in print creative advertisements from sponsors which include six or more players. The USSF pointed out that the CBA/UPA does not require any approval from the USMNT.

The USMNT’s argument rested upon the past practice of the USSF, as it had voluntarily submitted these print creatives for review since 2001.

In the first instance, the arbitrator agreed with the USMNT and granted summary judgment. The District Court confirmed the arbitrator’s award.[15]

However, the Court of Appeals reversed the District Court, finding that the arbitrator exceeded his authority by looking at past practice, given that the terms of the CBA/UPA are “clear and unambiguous.”[16]

While much of the substantive legal discussion in this case focuses on the scope of an arbitrator’s authority to interpret a collective bargaining agreement, in the context of image rights, it is important to note the current legal position of the USSF’s ability to freely exploit players’ likenesses under the conditions provided for in the CBA/UPA.

Neither the USSF nor its sponsors are obligated to pay the USMNT when six or more players’ likenesses are used in these advertisements. The USSF must simply request that the sponsor make a contribution to the Player Pool, but the sponsor is free to decline this request.

In practical terms, it does not appear particularly likely that sponsors will freely donate to the Player Pool. Additionally, the players have seemingly little recourse to regain some control over their image rights until the next round of negotiations in advance of the current CBA expiring on 31 December 2018.

 

COMMENTARY – A BRIEF COMPARASION TO US WOMEN’S SOCCER TEAM AND THE ENGLISH NATIONAL TEAMS

The current CBA between the USSF and the United States Women’s National Soccer Team Players Association (“USWNT”), agreed to in 2005, was originally set to expire on 31 December 2012. A subsequent memorandum of understanding (“MOU”) extended the CBA through 31 December 2016, with some modifications.[17]

A new CBA has yet to be agreed, but the recently expired CBA/UPA also contained the “Section 6(f)(i) exception,” which permitted USSF sponsors to use players’ likenesses in certain advertising materials without being required to compensate the players, so long as six or more players were featured in that advertising.

As relates to the England national teams, while the England men’s team do not have a central contract with the FA, an association called Team England acts for the team collectively with respect to its commercial relationship with The FA.[18]

The England women footballers do have Central Contracts with the FA. The Central Contract provides that, unless otherwise negotiated as part of a separate image rights deal, the player consents to having her likeness used for advertising campaigns with sponsors of The FA, provided that the campaigns involve three or more players. However, The FA must work with the players to resolve any conflicts arising out of commitments made to sponsors as part of the players’ individual endorsement contracts with sponsors.

This “three or more players” requirement is half as many as that required under the CBAs/UPAs between the USSF and the USMNT / USWNT, and it does not apply to The FA’s official kit supplier, Nike. Nike is permitted to feature individual players in its advertising campaigns, even if the player has a personal endorsement deal with a competitor (i.e. adidas, Puma, Under Armour). However, The FA must work with Nike and the player to ensure that the player’s image is not used to suggest that the player is giving a direct personal endorsement to Nike.[19]

In both England and in the United States, the national associations exercise a significant degree of control over the image rights of the footballers selected to the national teams.

All international athletes, not just footballers, should pay close attention to the image rights clauses in the contracts with their sport’s national association. National associations regularly enter into lucrative commercial deals, and much of the value of these deals is derived from the players themselves, be it their likenesses or their on-pitch performances.[20] The entity representing the players in contract negotiations with the national associations should prioritise seeing this value reflected in the monetary terms of the contract while also ensuring that the players are free to exploit their own likenesses as well and enter into individual deals.

In other sports, the contracts between the players and the national associations can severely restrict the player’s ability to enter into individual endorsement and sponsorship deals.

Image rights are increasingly a crucial aspect of negotiations and with the USWNT currently negotiating with the USSF over new CBA/UPA, it will be very interesting to see 1. what, if any changes are made relating to the control the USSF has over players’ images and likenesses.

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About the Author

Jake Cohen

Jake Cohen

Jake is a Consultant Mills & Reeve and an attorney working on both sides of the pond.

He has worked in the sports team at Mills & Reeve, and also writes about legal, economic, and financial issues in European sport for the Wall Street Journal, ESPN, and other publications. He has been cited as an authority by media outlets all over the world.

At one time, he was a serviceable fly-half.

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Carol Couse

Carol Couse

Carol is a consultant in the sports team at Mills & Reeve LLP and has over thirteen years of experience in sports law, both in-house and in private practice.

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