SPECIAL EURO 2020 – Football: a right that is still offside? (Part 1)
As you probably know, the Euro 2020 football tournament started on Friday 11 June with the opening match Turkey – Italy in Rome. Let’s take advantage of this event to remind some of the legal issues surrounding this highly contentious sport.
I/ Footballers’ image rights
From the biggest clothing brands to video games, the image of professional footballers is a lucrative market, but also subject to much controversy. Indeed, the image of footballers is often exploited in the context of unclear authorisations while generating substantial profits. How is the exploitation of footballers’ images managed?
The player himself: the right to privacy under Article 9 of the Civil Code and Article 8 of the European Convention on Human Rights has led to the development of a clear principle in the jurisdiction: “Every person has an exclusive right to his image and to the use made of it, and may object to its dissemination without his authorisation”.
The football charter in its article 280 b) and d) presents two situations for the exploitation of players’ images:
-The club: by signing his contract, the player gives his club permission to use his image for its own benefit, as long as the image of at least five players in the squad is used in a strictly identical manner. For example, sports betting websites Unibet have concluded contracts with certain clubs to use the image of several players.
-UNFP: the use of the individual and collective image of players, including several players from several clubs, may only be carried out with the agreement of and for the benefit of the UNFP.
-The most popular players sometimes create a company dedicated to the management of their image rights or entrust the exploitation of their rights to third parties: Paul Pogba, for example, was denied his rights, apparently ” granted ” to his first agent.
Today, footballers in the French Premier League receive a consideration that does not seem proportionate to the exploitation of their image.
They call for a fairer balance between all the issues at stake: personality rights and image rights, financing of clubs, advertisers and broadcasters, general public interest and the role, responsibility and positive influence of sport in society.
II/ Branding by athletes
According to a decision of 12 May 2021 of the Second Civil Chamber, the direct or indirect presentation of a product to the public by an athlete at various events, and in particular at sporting exhibitions, with or without competition, is subject to the presumption of a contract of employment as a model.
This presumption remains regardless of the method and amount of the compensation and the qualification given to the contract by the parties. Nor is it destroyed by proof that the model retains full freedom of action in the performance of his performance.
Thus, the Court of Cassation overturned the decision of the Court of Appeal which reversed the burden of proof. In concrete terms, a footballer who presents a product and a brand is considered as a model.
By the UGGC IP-IT-Media team.
Sources : Cass. 2e civ., May 12, 2021, n° 19-24610
 See e.g. Cass. Civ. 1st, 27 February 2007, n° 06-10393 or Court of Appeal of Paris 11th chamber, section B Decision of 14 February 2008
 ARTICLE 280 of the Football Regulations
b) By signing his employment contract and by means of a specific amendment, the player gives his club permission to use his image and/or name in a collective and individual manner, provided that at least five players in the squad are used in a strictly identical manner. Below this limit, the individual use of each player must have obtained a specific agreement for each operation (…)
c) The player may have his image and/or name advertised for his benefit, without image and/or name, without the club’s equipment and trademarks, but with the the possibility of mentioning the name of his club (…)
d) The publication, reproduction or use of the individual and collective image of professional players playing in France and simultaneously grouping together several players from several clubs may only be carried out with the agreement of and for the benefit of the UNFP (…)