Image rights and international footballers: the curious case of Mohamed Salah and the Egypt Football Association

Published 09 April 2019 By: Jake Cohen

Background to image rights

In a football context, image rights are simply the right a player possesses to control, sell, license and otherwise monetise his or her likeness – that is, his or her image, name, nickname, voice, signature and all other characteristics unique to the player.

By way of very brief background, players whose images have independent commercial value will often seek to create image rights companies and then assign those rights to these companies. This is done for tax purposes, as the revenue generated from the exploitation of the player’s image rights will be taxed at corporate tax rates, which are typically substantially lower than personal income tax rates. Non-UK players who are playing football in the UK will often set up both UK and offshore image rights companies. In these situations, the player’s UK image rights will be assigned to the UK image rights company, and his global image rights will be assigned to the offshore image rights companies. For in-depth articles relating to image rights issues in football, please see here1.

Typically, when a player is called up to represent his or her country in senior international competition, that player will sign a contract with his or her respective national association. Alongside relevant FIFA regulations (namely, Annexe 1 of the Regulations on the Status and Transfer of Players), these contracts govern the relationship between the players and their national associations in respect of participation in international football.

These contracts will often contain an image rights component, which address the rights and obligations of both the player and the national association as relates to the use of the player’s image.

The central contract between the England women’s national team and The FA, for example, provides that, unless otherwise negotiated as part of a separate image rights deal, the player consents to having her image used by The FA. In signing the central contract, the player also consents to having her image used and exploited by The FA’s commercial partners in marketing and advertising materials, with the following caveats:

• the campaigns involve three or more players, and

• these materials do not provide the commercial partner with a personal endorsement by an individual player of the products or services offered by the commercial partner.2

In cases where a player has an existing individual sponsorship deal with a competitor of an FA partner seeking to use that player’s image, The FA is required to work with the player to resolve any conflicts arising out of commitments previously made by the player to her individual sponsor pursuant to the individual endorsement contract.

There is only one exception to the “three or more players” rule – where Nike, the official kit sponsor of The FA is concerned. 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.3

Similarly, in the collective bargaining agreement between the United States men’s national team (USMNT) and its national association, the United States Soccer Federation (USSF), the USSF is not permitted to use, or allow others to use an individual player’s likeness without the player first agreeing to this. However, there is also an exception, which allows USSF sponsors and partners to use the images of USMNT players, so long as a number of requirements are met, most notably that advertising and promotions need to feature six or more players together.4

However, not every national association will have a detailed contract with their players which address the issue of image rights. As will be discussed in the context of Mr Salah’s dispute with the EFA, the lack of detailed contractual provisions addressing how national associations may or may not use their players’ images can lead to contentious disputes.

Mohamed Salah’s image rights

Mr Salah has licensed his worldwide image rights to an image rights company (IRC) named “MS Commercial (Cayman)” (MSCC)5. The sole director of MSCC is Ramy Abbas Issa, Mr Salah’s lawyer and representative. In line with HMRC, it appears that Mr Salah has also licensed his UK image rights to a UK IRC called Salah UK Commercial Limited. In the author’s view, Mr Salah’s IRCs will very likely have entered into separate agreements with Liverpool FC for the club to license his image (MSCC for worldwide use and Salah UK Commercial Limited for UK use) in a “club context.” A club context refers to the use of the player’s image in conjunction with the club’s name, colours, crest, logo, trademark and/or other identifying characteristics of the club. Clause 4 of the Standard Premier League Contract provides clubs with limited use of the players image in a club capacity, but clubs will often wish to contract with the player’s image rights company / companies in order to further exploit the player’s image.

Mr Salah’s IRCs will also very likely have entered into agreements with Adidas relating to Mr Salah’s boot deal with the brand. In this situation, Mr Salah’s IRCs will have almost certainly granted Adidas a license in a “personal context.” Personal context refers to the use of the player’s image outside of his role as a member of his club, i.e. where Mr Salah is represented as an individual, rather than a Liverpool player.

Where the player is an international footballer and has further image rights agreements with his national association, this is often referred to as an “international context,” or “international capacity”). However, it does not appear that the Egyptian FA had established image rights agreements with Mr Salah or the Egyptian team collectively, and this is from which the dispute ultimately flows.

Mr Salah, through MSCC, has an individual endorsement and brand ambassador deal with mobile company, Vodafone Egypt. As part of the ambassador deal, Vodafone publicised a “Salah World Rate” phone tariff giving subscribers eleven free minutes of talking time for each time he scores a goal. It is typical for these deals to contain exclusivity clauses and it is on this basis that the author believes that it is very likely that the Vodafone deal would have been an exclusive deal, which would preclude Mr Salah from entering into any further endorsement deal with a competitor of Vodafone.

In last year’s saga, Salah’s image was allegedly used without his authorisation by the EFA to endorse a competitor of Vodafone, namely the telecommunication firm ‘WE’, who are an official team sponsor of the EFA. This naturally created a significant problem for Salah, MSCC, Vodafone, WE, the EFA, and a company hired by the EFA called Presentation.

Mohamed Salah and the Egypt Football Association

The dispute between Mohamed Salah and the EFA was made public in the latter half of April 2018 after many of the parties involved, including EFA chairman Hany Abou-Rida, Mr Salah’s representative Mr Abbas, and Mr Salah himself made public statements6 about the dispute on Twitter7 and other social media platforms. However, the dispute appears to have began in late 2017 with its origins even earlier.

In late 2017, Mr Abou-Rida, acting in his capacity as EFA chairman, apparently made a phone call to Mr Salah and “encouraged [Mr Salah] to give preference to the sponsors of the Egyptian Football Association”8 in relation to the licencing of Salah’s worldwide image rights, which are controlled by MSCC.

In the days following, Mr Abou-Rida’s request to Mr Salah, Mr Abbas received an unsolicited letter from a company called “Presentation”, which held itself out to “be the main and only sponsor of the Egyptian Football Association.”9 Presentation signed a deal with the EFA for the exclusive sponsorship and commercial rights surrounding the national team.10 Presentation requested that Mr Abbas provide information relating to ongoing negotiations for the use of Mr Salah’s image rights as well as guidance on what the EFA would have to do in order to purchase the rights to a photo shoot featuring Mr Salah.

Mr Abbas queried Presentation as to why it would require this information but did not receive a response. Mr Abbas also noted that he and Mr Salah had previously attempted to contact Presentation to object to Mr Salah’s image being used by Telecom Egypt, as they believed Presentation to be the representatives of Telecom Egypt.11

Presentation apparently did not respond to these objections and according to Mr Salah and Mr Abbas, Presentation continued to offer the use of Mr Salah’s image as well as access to interviews and personal appearances, despite not having any authority or capacity to do so.

Furthermore, Mr Salah and Mr Abbas objected to the use of Mr Salah’s image alongside the logos of EFA’s sponsors on an aeroplane owned and operated by Egypt Air12. As can be seen in the photo, Mr Salah’s image is featured much more prominently than those of his teammates or manager. Mr Abbas contended that Egypt Air had no right to use Mr Salah’s image, as they had not contracted with MSCC. Additionally, Mr Abbas alleged that Egypt Air had breached aviation and privacy rules during the summer of 2017 by publicising that Mr Salah was en route to Liverpool during a critical stage in negotiations between Mr Salah and Liverpool FC relating to his transfer to the club.

Mr Abbas also requested to Mr Abou-Rida that the EFA, Presentation and Egypt Air, and any and all other relevant commercial partners cease and desist using or authorising the use of Mr Salah’s image without express written consent from MSCC.

Mr Abbas did not receive a response from Mr Abou-Rida, nor did the Swiss lawyers retained by MSCC to protect Mr Salah’s image rights under Article 28 of the Swiss Commercial Code.

On 2 April 2018, Mr Abbas sent another letter to Mr Abou-Rida, who allegedly spoke to Mr Salah directly to inform Mr Salah that FIFA regulations dictate the EFA is free to use Mr Salah’s image as long as his image is featured in equal prominence alongside four teammates.13

Mr Abbas contended that there is no such right held by a national association relating to the exploitation of a player’s image contained in any FIFA regulations, and alleged that Mr Abou-Rida and the EFA were in breach of Article 2 of the FIFA Disciplinary Code, which states:

“This code applies to every match and competition organised by FIFA. Beyond this scope, it also applies if a match official is harmed and, more generally, if the statutory objectives of FIFA are breached, especially with regard to forgery, corruption and doping. It also applies to any breach of FIFA regulations that does not fall under the jurisdiction of any other body.”14

Mr Abbas then stated his intention to bring a claim on Mr Salah’s behalf against the EFA before the FIFA Disciplinary Committee.

Mr Abbas apparently did not receive a response to his 2 April letter, and on 20 April, he sent two tweets, stating “We are having a very serious issue with the Egyptian Football Association.” On 21 April, Mr Salah tweeted a photo of himself and Mr Abbas, with the caption “Full support.” Apparently, it was only after Mr Salah and Mr Abbas spoke publicly, albeit very briefly, on this matter did Mr Abou-Rida respond to these claims.

Mr Abou-Rida and the EFA initially asserted that they had the right to use Mr Salah’s image, but shortly thereafter, announced that the EFA would remove Mr Salah’s image from its promotional materials and cease the use of his image alongside the WE logo on the Egypt Air aeroplane.15

On 29 April, Mr Salah tweeted that the matter would be resolved, and on 30 April, the EFA posted a statement from Mr Abou-Rida on its official Facebook page, also indicating that the matter would be resolved.

However, it appears that these issues were merely tabled in light of the upcoming World Cup. Following the World Cup – in which Egypt underperformed, losing all three matches in a group stage featuring Uruguay, Russia and Saudi Arabia, and in which Mr Salah scored both of Egypt’s only two goals of the tournament – this matter was once again in the public spotlight.

On 11 August, Mr Abbas wrote to Mr Abou-Rida, reiterating that MSCC’s written approval would be required for any use of the player’s image by the EFA or its sponsors. Mr Abbas indicated that this would also apply to personal appearances, signings, or photo sessions that the EFA wished for Mr Salah to undertake.16 Mr Abbas also requested that the EFA undertake necessary travel, logistical and security measures to protect Mr Salah from intrusions.

On 16 August, the EFA requested that all correspondence be sent to the EFA’s official email address rather than Mr Abou-Rida’s personal email address.

On 23 August, Mr Abbas sent the correspondence to the EFA’s official email address.

On 26 August, Mr Abbas and Mr Salah both expressed their dissatisfaction with the EFA’s lack of response.

Shortly after these tweets, the EFA made a public statement stating that it would assess the requests and respond accordingly. The EFA also stated that it found Mr Abbas’ language to be inappropriate, that some of the demands were unreasonable, and that Mr Salah would not be given special treatment.

On 27 August, Mr Salah posted a series of videos on his official Facebook page in which he addressed the EFA’s statement, which both he and Mr Abbas believed to contain falsehoods. On the same date, Mr Abbas sent a series of tweets clarifying his and Mr Salah’s position in light of the EFA’s statement, particularly as relates to the fact that Mr Abbas did not demand that Mr Salah be given special treatment.

Since then, the relevant parties have been silent on this issue and it remains to be seen what the final outcome will be. Additionally, it is unclear as to Vodafone’s position on the use of Salah’s image by one of its competitors or whether MSCC will seek monetary damages from the EFA for infringing upon Mr Salah’s image.

Takeaway points and best practices

The public dispute between Mohamed Salah and the EFA appears to be an excellent case study for why it is crucial for international footballers and their national associations to have settled contractual provisions relating to the use of players’ images by their respective national associations.

However, it should also be mentioned that there were some very unique aspects about this dispute that are unlikely to be repeated in the future, namely: a substantial part of the dispute played out in public, with many of the relevant parties commenting on social media; the dispute was close to the start of the World Cup and Egypt were about to participate in the tournament for the first time since 1990 (and only for the third time in history); and Mr Salah had just completed a historic club season for Liverpool, becoming one of the most popular footballers in the world and one of Egypt’s most famous and influential citizens.

In the absence of an express written agreement with individual players’ IRCs or an express written agreement with the entity collectively representing the players granting the national association a licence to do so, national associations should not be exploiting the images of their international players.

Footballers and their advisors 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 through their likenesses or their on-pitch performances.

The entities collectively representing the players in contract negotiations with the national associations should prioritise seeing that the players not only receive an equitable share of revenues earned by the national associations exploiting their images, but also that the players are free to exploit their own images and enter into individual deals as they see fit.

The author would like to extend his thanks to Daniel Geey whose ideas helped to guide this piece.

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• Tags: Commercial | Contract | Egypt | Egyptian Football Association | Employment | Football | Image Rights | The FA | United States Soccer Federation (USSF)

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Author

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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