What are the obligations on footballers to conduct media activities? Comparing the rules in UK, USA, Spain, Belgium & ItalyAlistair McHenry, Michael Rueda , Josep F. Vandellos Alamilla, Gauthier Bouchat, Stella Riberti, Tommaso Soragni
Following this summer’s news of Newcastle United footballers going on “media strike”1 as part of a dispute with the club over bonuses, this article compares and contrasts the legal obligations on footballers to conduct media activities in the UK, USA, Spain and Belgium.
Whilst there was only one goal separating the teams in Manchester City's 2-1 Premier League victory over Newcastle United on 1 September, the story of the game was that the gulf in class was far greater than the scoreline suggested. Nine points already separate the two teams going into the international break, and it would not be difficult to envisage the gap at the end of this season being as huge as the 56-point chasm it was last season.
Of course, the contrast in the two clubs' fortunes extends beyond the pitch and, as has been well documented, the respective ownerships are currently being portrayed as the perfect examples of "how to" and "how not to" run a football club. You can only imagine how galling this is for fans of Newcastle United, especially when you consider the clubs are more or less of equal size, fanbase and history. But perhaps a more striking comparison between the two clubs, which may have gone under the radar, came with recent media reports that Newcastle United players were refusing to fulfil their media commitments in a dispute with the Club's hierarchy over bonus payments, coinciding in the same month with the release on Amazon of an eight-part documentary series entitled All or Nothing: Manchester City1 .
The comparison is so striking simply because it contrasts one set of players refusing to honour their duty as Club employees to grant obligatory access to broadcasters with another set of players who have (voluntarily?) participated in a "warts and all" style documentary, with the filmmakers enjoying unfettered access not only to players' family homes but also to the team's dressing room at half-time during high profile matches. It is a case of two extremes; on the one hand you have a team publicly refusing to honour2 contractual media obligations with the intent of gaining the upper hand in an internal dispute; and on the other a team have who have gone so far as potentially revealing to the watching world the coaching and other trade secrets of what became a record setting season of 100 points. In the case of their performances on the pitch (so far), it cannot be said that Manchester City's approach has been anything other than positive. And it will be interesting to see whether it means that through their precedent we will become accustomed to watching half-time team talks live from the dressing rooms of all Premier League teams, like we have in rugby's Super League.
In the case of Newcastle United's players refusing to provide camera footage to SKY over a dispute about contractual bonuses, whilst not quite as extreme as refusing to play, it is a well-pitched negotiating ploy aimed at striking where they know their employer is vulnerable. Players know that clubs are beholden to the Premier League, who in turn rely heavily on the income streams flowing so lavishly from the broadcasters (and from sponsors who themselves rely on broadcasting). If the players cut off the supply at source, they know it has the potential to damage both club and Premier League. That gives them a degree of bargaining power. It is therefore understandable and should come as no surprise that the Premier League would wish to seek to impose specific media obligations on its clubs and players, and indeed does so expressly through its Rules.
Employment law and the Premier League's Handbook
It is well established that a footballer's media commitments have their roots in employment law; as part of a player's contract of employment with a club, a player is obliged to undertake certain duties for which he or she is remunerated. This is enshrined in the Premier League Handbook, which contains a pro-forma employment contract to be used for all Premier League players. The duties and obligations of players are set out in clause 3, where amongst other requirements the player agrees (at clause 3.1.6)
"to comply with and act in accordance with all lawful instructions of any authorised official of the Club and (at clause 3.2.5) not to knowingly or recklessly do … or omit to do anything which is likely to … cause damage to the Club ."
The media duties imposed are set out in clause 4 entitled "Community, Public Relations and Marketing". The obligations owed are couched in unexpectedly expansive terms and, further, are owed to a seemingly limitless list of stakeholders:
" For the purposes of the promotional, community and public relations activities of the Club and / or (at the request of the Club) of any sponsors or commercial partners of the Club and/or of the League and/or of any main sponsors of the League… "
Similarly all-encompassing is the type of activity required to be attended by players, such activity defined in the loosest of terms as
" such events as may reasonably be required by the Club, including but not limited to, appearances and the granting of interviews and photographic opportunities as authorised by the Club ".
Clause 4.1 goes on to stipulate that players must make themselves available for " up to six hours per week ".
Clause 4.6 states that the
" Player hereby grants to the Club the right to photograph the Player both individually and as a member of a squad and to use such photographs and the Player’s Image in a Club Context in connection with the promotion of the Club and its playing activities and the promotion of the League and the manufacture sale distribution licensing advertising marketing and promotion of the Club’s club branded and football related products (including the Strip) or services (including such products or services which are endorsed by or produced under licence from the Club) and in relation to the League’s licensed products, services and sponsors in such manner as the Club may reasonably think fit…" .
The definition of Player's Image means the Player’s name, nickname, fame, image, signature, voice and film and photographic portrayal, virtual and/or electronic representation, reputation, replica and all other characteristics of the Player including his shirt number.
Therefore, by refusing to fulfil the club's contractual media requirements the players are potentially in breach of a number of clauses of their playing contracts, as well as potentially breaching their internal code of conduct/club rules which no doubt will reiterate their obligations to the media on behalf of the club and the Premier League.
For as long as the Premier League has contractual rights with its broadcast rights holders, it will seek to pass down and prescribe media commitments to the players via their employment contracts with the clubs. Those obligations are there for a good reason: they are required to give fans greater access to the players, which in turn helps to sell the Premier League product to global television companies. The more accessible the product, the more human the face, the higher the price television companies may be willing to pay.
The significant television revenues which are now driving the game and, in fact, paying the players' wages, mean that players will have more and more difficulty striking or reneging on their media commitments to force the hand of the clubs. Players will not only be expected to toe the line but, in all likelihood, will have to permit greater and greater exposure to their lives, such as Manchester City have done. Other teams may soon have no option but to follow their lead.
Generally, major U.S. sports leagues and their clubs contract with athletes regarding compliance by the athletes with television, radio, newspaper and other media requests. Collective bargaining agreements between players associations and leagues generally provide that such activities must be reasonable and also provide mechanisms through which players and the league and/or clubs can address grievances resulting therefrom.
For example, each Major League Soccer ( MLS ) player signs the same Standard Player Agreement ( SPA ) with MLS. The SPA is subject to the terms of the Collective Bargaining Agreement3 (the CBA ) between MLS and the Major League Soccer Players Union (the MLSPU) . The SPA and the CBA collectively set forth the requirements of a player to provide media, promotional and commercial appearances, among other things. Generally, the terms of the SPA and the CBA are non-negotiable as they were negotiated by the MLSPU on behalf of all MLS players. The current CBA took effect on February 1, 2015 and expires on January 31, 2020.
The current CBA requires that MLS players cooperate with reasonable requests of television, radio, newspaper, magazine and other news media representatives and cooperate with MLS and the player's team, separately and together, to be available for and participate in such news media photo sessions and interviews and other media appearances as may be reasonably be required.
If a player decides not to participate in a media session without breaching the SPA and the CBA, the player would likely have to claim that the requests for media appearances were unreasonable. To do so the MLSPU would likely initiate a grievance procedure and provide notice to MLS that a provision of the CBA was violated. MLS would have to respond to the claim. If the grievance is not resolved between the parties, the grievance is referred to a grievance committee, consisting of a representative of MLS and a representative of the MLSPU. If the grievance committee fails to resolve the grievance, the parties could then elect to arbitrate the grievance.
However, if a player is not claiming that the requests for media appearances are unreasonable and decides to just not participate in, or fails to report to, a media appearance, the CBA permits MLS to impose a fine on the player. The amount of the fine varies depending on the player's base salary, with players that earn more being subject to a higher fine. Players can be disciplined for each recurring incident thereafter and additional infractions would be evaluated on an incident by incident basis and be subject to increased fines up to and including suspensions without pay and/or termination.
Moreover, a player's failure to report to media appearances constitutes a breach of the SPA. A player's breach of the SPA in this manner grants MLS the right to utilize certain expedited arbitration mechanisms provided in the SPA. The decision of the arbitrator is final and binding and may be immediately entered as a judgment in any court of competent jurisdiction and/or communicated to FIFA. The judgment may also be submitted to any court having jurisdiction for the purpose of obtaining the equitable relief deemed appropriate, including but not limited to a decree enjoining the player from any further breach of the SPA.
Neither the Spanish Sports Act 10/19904, nor the Royal Decree 1006/19855 regulating the special labor relationship of professional athletes contain any specific reference to media obligations of professional athletes and therefore, in order to understand the extent of these obligations, one will have to look at the individual employment contracts, collective bargaining agreements, and also the media regulations of the different competitions.
Before that however, a distinction needs to be made between the media-related obligations that are intrinsically linked to competitions and other media-related obligations which are not related to competitions.
As to the first category, media obligations related to competitions can be found in the internal regulations enacted by sports federations and/or the leagues, and whereas in the case of team sports, these are usually addressed to clubs which must in turn ensure compliance by their athletes and participants, in case of individual sports, they directly oblige participant athletes.
Thus, in the case of professional football, all clubs taking part in La Liga Santander and La Liga 1|2|3 (i.e. the first and the second national tiers) must comply with the obligations provided under the so-called “Regulation for the TV Broadcasting of the National Professional Football League” (Liga Nacional de Futbol Profesional) the latest edition of which has been recently approved on 26 July 2018 by the Spanish Supreme Sports Council. Clubs must accordingly, put certain players at the disposal of the audiovisual rights-holders, in order to conduct post-match super flash interviews, post-match flash interviews, post-match press conference, and the interviews in the mixed zone. Failure to do so entails sanctions for infringing clubs.
These media-related obligations must be complied with by footballers as a part of their contractual obligations towards their clubs, which are by definition, to take part in sports competitions and implicitly by extension to all activities related to it. Therefore, a player who is requested by the club to appear in a super flash interview after the match must comply with such obligation as part of the contractual obligations undertaken when signing the employment contract.
In the case of individual sports, the process is somewhat different. For instance, tennis players6 enrolling for national official competitions are required to respect the dispositions in the Technical Regulations of the Spanish Royal Tennis Federation (RFET) amongst which, there exists an obligation for players making it to the finals of any tournament to attend the prize ceremony and media interviews which take place for a duration of 30 minutes, immediately after the conclusion of the match.
Similarly, the regulations of the Spanish Royal Motorcycling Federation (RFEM)7 provides that pilots unjustly refusing to step on the podium are to be stripped of their prizes and shall be subject to disciplinary investigations.
Out of competition
The second category –i.e. the media obligations falling outside the competitions - refers essentially to those obligations stemming from the commercial exploitation of image rights of athletes and the potential events related to it. In professional football, most if not all employment contracts between clubs and players explicitly include the assignment during the term of contract in favor of clubs of all image rights of footballers when they are identified as members of the club. Conversely, it is also common that players maintain their individual image rights, occasionally with some restrictions with regards to potential competitors of the club’s current sponsors.
By way of example, we have seen in the past seasons Lionel Messi and Cristiano Ronaldo attending multiple media events with Adidas and Nike respectively, while their clubs had contracts with the direct competitor kit sponsors.
It is therefore, in this context of negotiation and contractual freedom that clubs retain and regulate the right to request athletes to attend and participate in public or private events, conferences, promotional acts, conventions, camps, interviews, advertising etc. organized by the club itself or by its sponsors or partner companies.
In football, the most recent proof of the essential contractual character of these media-related obligations is the conflict which arose between La Liga and AFE during the last month. On 16 August, La Liga announced8 a 15-year joint venture with the North American company named Relevent Sports, to promote the La Liga brand in the United States and Canada through the implementation of youth academies, coaching education and training, marketing activities, brand activation, exhibition matches. One of the primary objectives of this project was the organization (after obtaining all necessary authorizations) of an official LA Liga match in the US, similar to how some NFL9 and NBA10 matches are occasionally played in London.
In spite of having the explicit support of the Spanish Government11, the agreement was concluded without consulting the football player’s trade union (AFE), which led to this conflict between La Liga and the AFE. Players’ representatives, which included Real Madrid and FC Barcelona stars, gathered in Madrid a few days after the announcement, refusing to play outside of Spain and threatened to go on strike12, asserting that such an unilateral and impactful measure (15 seasons) required their prior express consent as it occurred before deciding to play the finals of the 2018 Spanish Super Cup at Tanger (Morocco) between Sevilla CF and FC Barcelona13.
Finally, it is also worth a short remark to article 37 of the Spanish “Collective bargaining agreement for the activity of professional football” of 23 November 2015 which includes amongst its articles the commitment between the AFE and the La Liga to organize different events, marketing activities (road-shows, LPF campus, interactive fests etc.) and social corporate responsibility events in general with the obligation of AFE to make best efforts to ensure the presence of the requested players in such events and activities.
The Belgian association of professional football clubs, the Pro League, adopted specific rules regarding obligations towards the media. Although those rules are addressed to the clubs, it is largely up to the players to ultimately fulfil these obligations. In case of infringement, the club is fined. Nevertheless, players often bear the financial sanctions since clubs impose the same media obligations on the players through their employment contract or through the applicable working regulations14.
Context and regulatory framework
As a rule, one’s image is protected based on Article XI.174 of the Belgian Code of Economic Law15. The right to protection is however less strict when it comes to public persons such as professional athletes. The image of a public person may be used without his or her permission for informational purposes, insofar the right to privacy of the person depicted is not violated.16 An athlete can however oppose the unauthorized use of his image for commercial or economic purposes.17
In football, the applicable Collective Bargaining Agreement ( CBA ) stipulates that the club may use, free of charge, the name and image of a professional player if the intention is to inform the public and the player's private life is not violated.18 Regarding the use for commercial purposes, players generally assign the exploitation of their image rights to the club via their employment contract. The player remains free to enter into advertising agreements with third parties, except for agreements with competitors of club sponsors and/or for advertisements that are deemed to harm the image of sport (e.g. tobacco and alcohol).19
In addition, the CBA allows the Pro League, the Belgian national teams (i.e. the Belgian FA) and their commercial partners to use photographs or images of the player, individually or as part of a team, as part of an overall campaign.
In addition, the Pro League, has decided to implement specific rules and obligations towards the media in connection with the competitions organised under its auspices. In particular, the “ Regulations concerning broadcasting rights for Pro League and Proximus League matches ” ("Belgian Pro League Regulations") were adopted on 29 October 2014 and amended on 10 August 2016.
The Belgian Pro League Regulations are aimed at the members of the Pro League, i.e. the clubs, and not to the players. In other words, although the players must ultimately perform the media obligations, the liability in case of non-compliance lies with the clubs. As such, the players do not have any direct media-related obligations towards the Pro League. This being said, in order to mitigate their own liability towards the Pro League, clubs generally integrate an obligation to comply with media-related requests in the employment contract of the player or in the work regulations.
Interviews and press conferences
The Belgian Pro League Regulations make a distinction between three categories of stakeholders: the Live Match rights holders, the Magazine Highlights rights holders and accredited press.
The Live Match rights holders are granted the right to interview the following people:
75 minutes before the game: head coaches (5 minutes);
Beginning of half time: at least one player of each team (1.5 minutes);
End of half time: assistant coaches (1.5 minutes);
Immediately after the game: at least two players of each team (2.5 minutes);
Within fifteen minutes after the game: head coaches (2.5 minutes).
The Belgian Pro League Regulations however establish that if the requested player is unavailable for a legitimate reason, another player who has played for at least 30 minutes can replace him upon proposal of the club.
The Magazine Highlights rights holders are only entitled to an interview with the head coaches and one player of each team after the game (2.5 minutes).
All interviews must be organised in front of Pro League’s billboards.
At the latest thirty minutes after the head coach’s first interview, a press conference is to be held, which is open to all rights holders and accredited press.
As to the sanctions, the Belgian Pro League Regulations provide that each first infringement of the above-mentioned rules is sanctioned with a penalty of EUR 1,000 on the club. For any subsequent infringement of a rule of same nature during the ongoing season, the penalty is increased by EUR 1,000.
After the game, all the players can pass through the mixed zone, where they can give interviews but without being obliged to do so. The club must however designate two players who can be interviewed.
In the mixed zone, the TV interviews are only allowed in groups and not individually.
The coach is not allowed to be interviewed in the mixed zone.
Upon Magazine Highlights rights holders’ request, the clubs shall make their players and coaches available for the production of the magazine at least three times a year.
In case the club refuses to make the requested player or coach available for the magazine, a fine of EUR 2,000 is imposed. The fine will be doubled for any subsequent infringement of same nature during the ongoing season.
In Belgium, the association of professional clubs has implemented specific rules regarding the obligations towards the media. Those rules are addressed to the clubs, but obligations are ultimately fulfilled the players. In case of non-compliance the club risks fines. In order to comply with the rules, clubs impose similar obligations on the players via their employment contracts or the work regulations.
The dichotomy between football clubs' interest in gaining maximum profit from the commercial exploitation of their players' image both while performing and across media, as opposed to players' interest in freely using their own image for advertising purposes, is inherent to the football world.
In Italy, a fairly sensible balance between these two opposing interests was reached in 1981 with the "convention" (the Convention ) entered into between the Italian Football Association ( FIGC ), the football players' union ( AIC ) and the professional Leagues20.
The Convention establishes the right of clubs (and their sponsors) to broadcast and exploit players' images when training and competing, as well as their right to require players to carry out certain media activities (e.g. video or photo shooting, store opening or social media posts), subject to the following conditions:
Players can only be featured in their club capacity.
Clubs are prohibited from using individual players only: they can either feature the full 11-player team (e.g. for the creation of calendars or posters) or just a selected group of players; although the Convention itself is silent as to the definition of "group", according to long-established practice "group" consists of no less than four players; along these lines, for instance the promotional campaign by A.S. Roma's new back-shirt sponsor Hyundai features the players Pastore, Cristante, Dzeko and Cengiz Ünder jointly.21
Players' involvement in such promotional activities cannot exceed specific time-limits (a maximum of twelve hours per month, allocated over no more than three events) and cannot require endeavours impairing their ordinary professional commitments.
In no event may the exploitation of players' image rights create the impression in the public's minds that the players endorse any products or services of the club's sponsors.
The clubs' sponsors may not feature the players' names or images for any merchandising purposes.
Players are required to wear the club's official kit at all times while carrying out professional activities; this obligation however does not apply to players' boots and goalkeepers' gloves, which can be chosen at their discretion as they qualify as a working tool. Accordingly, both Cristiano Ronaldo and Wojciech Szczęsny are free to wear and endorse Nike shoes and gloves (respectively) despite Juventus' sponsor being adidas.
It follows that players may be required by their club to carry out media activities both strictly connected to the competition and for advertising purposes in relation to the club's sponsors. Unless the club's demands exceed the above limitations, players cannot refrain from fulfilling such demands. Failure to abide by the media obligations requested by the club results in a breach of contract and can therefore be subject to sanctions in accordance with the Collective Bargaining Agreement executed by AIC and Serie A League in 2012 ( CBA )22 as well as the club's internal rules23 (if any). The sanctions provided for by the CBA are a written warning or a fine up to 5% of a monthly salary, in both cases to be imposed by the cub within 20 days of the player's breach and subject to the club having objected the player's failure to comply with his social media obligations within 5 days of the breach and having granted the player no less than 5 days to justify his conduct24 .
According to the Convention, players would be entitled to a part of all profits derived from the commercial activities of the club using or involving their image. However, it is common practice that when compiling the employment contract, which must25 be based on the standard form published each season by the League, the parties tick the box indicating that such additional compensation is included in the player’s salary.
Despite the lack of additional consideration, certain top Serie A clubs provide in the employment contract for a series of obligations on players that are not established in the Convention, such as the duty to notify the club of any envisaged sponsorship agreement for the club's consent with a view to avoiding conflicting endorsement agreements. The constant shift of sports marketing towards new platforms , such as mobile streaming and other digital devices, is increasingly frequently leading clubs to include in the players' media obligations set forth in the employment agreement the duty to share with the club any intended social media publication in relation to the club . This reflects the clubs' need to exploit these new platforms to attract a mainstream audience.
Furthermore, certain Serie A top clubs may choose to enter into a licensing agreement with some of their players who are key not only with regard to their playing performances, but also from a media perspective as they are able to enhance fans' attraction. These licensing agreements are separate from the employment form and aim at exploiting the players' image rights far beyond the limits set forth by the Convention (such as featuring the player individually or for merchandising purposes). Accordingly, under such licensing agreements players are paid sums additional to their salary listed in the employment contract. This is presumably the case of Marek Hamsik, who is the protagonist of one of the five episodes of the documentary series launched in April 2018 by Dugout on S.S. Napoli fans' passion26. This also seems to have been the case of Edinson Cavani: while registered for Napoli, he was featured in the club's promotional video entitled ' Diego Armando Maradona El Pibe de oro vs Edinson Cavani El Matador ' commercialised in 201327.
To regulate the opposing interests between clubs and players, the Convention advocates for the parties to use their best efforts in order to avert incompatible endorsement agreements. In this respect, a greater extent of protection is ultimately provided to clubs, which are entitled to request players to terminate sponsorship agreements conflicting with the club's sponsors if such agreements are entered into after the player's registration with the club. In these situations, however, the 'weight' of the player to the club and to the team may be a deciding factor: for instance, a key player such as Francesco Totti has been for several years, between 2007 and 2011, the brand ambassador of media company Vodafone, whilst also being featured by the competitor Wind, which sponsored his team A.S. Roma.
Overall, the Convention establishes a regulatory framework, which over time has proved to be a rather solid means of protecting both clubs' and players' rights and preventing disputes in case of conflicting sponsors28.
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- Tags: Belgian Code of Economic Law | Belgium | Football | La Liga | Major League Soccer | Major League Soccer Collective Bargaining Agreement | Major League Soccer Players Union (MLSPU) | Premier League | Premier League Handbook | Pro League | Royal Decree 1006_1985 | Spain | Spanish Sports Act 10_1990 | United Kingdom (UK) | United States of America (USA)
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About the Author
Alistair McHenry, Director, Walker Morris LLP
Alistair is a director in our Sports / Finance Litigation department. He has extensive experience of sporting disputes, arbitration and general commercial litigation. He advises Premier League clubs, Football League clubs, sporting organisations and individuals on all types of disputes and appeals, including under the Premier League, Football League and Football Association Rules. Alistair has also successfully advised clients in the Court of Appeal, High Court and before the RFU Disciplinary Panel.
Michael Rueda is the US Head of Sports and Entertainment at Withers.. Michael advises athletes, coaches, agents and companies on playing contracts, coaching contracts, and international player transfers; and sponsorship, endorsement, licensing and merchandising contracts. Michael was a member of the University of Connecticut 2000 National Championship Men's soccer team and continues to play soccer and compete in triathlons.
Josep is an independent lawyer with extensive experience in international sports law. During the last ten years his practice has entirely focused in representing athletes, clubs, national associations, agents and coaches in front of the different dispute resolution bodies and the Court of Arbitration for Sport in Lausanne (Switzerland). He also advises his clients on a regular basis in contract drafting and negotiations.
Gauthier Bouchat, Associate, Altius
Gauthier advices a wide range of Belgian and international clients on all aspects of sports law, including employment-related disputes, disciplinary proceedings and regulatory matters.
Stella's practice focuses on Sports & Media Law, including advising athletes, agents, coaches, clubs, leagues and companies on sponsorship, endorsement and merchandising contracts, as well as assisting in international sports arbitration proceedings.
In addition, Stella also advises domestic and foreign clients on drafting and negotiating international commercial agreements (e.g. consultancy; agency; supply; distribution; licence; franchising; merchandising; general terms and conditions).
Trainee, Withers (Milan)
Tommaso is a trainee in the corporate team. He is involved in matters related to the fields of sports and media, dealing with clients like football players, agents and companies, by providing assistance on a contractual and regulatory perspective. In addition, he is currently advising entrepreneurs on data privacy issues.