Talks | 26.11.2020

The Elephant Is in the Room and Has Zlatan’s Likeness

Marketing & Communication

Zlatan Ibrahimovic on Monday night pointed an accusing finger at the popular EA sports game FIFA for using his likeness, apparently without his consent. Also, Gareth Bale joined the query and many other will follow.

Electronic Arts (EA), as also Konami, uses the name and likeness rights of the football players under a license granted by FIFPro, the world players association, through the same players’ membership to the national players associations.

As the debate mounts up, let’s find out how the images and names of thousands of football players are exploited in the most popular sports football games as FIFA and PES, with focus on Italian law.

The legal framework for image rights in Italy stems out from the Italian Civil Code and the Italian Copyright Law (Legge sul Diritto d’Autore). It generally provides that no person is permitted to display or publish another’s image unless such display or publication has been consented to by the person to which the image relates, or is “justified” under one of the exceptions, including: (i) the notoriety or public position of the individual; (ii) a requirement of justice; (iii) scientific, educational or cultural reasons; and (iv) where the image is association with public events or public ceremonies. Any other dealings with a person’s image, such as its licensing, are similarly not permitted without the relevant individual’s consent; image rights are considered an inherent and inalienable part of an individual’s personal identity.

The above applies in general circumstances, whilst, focusing on the football scenario, Italian (or registered with the FIGC) professional player’s image rights are governed by the Convention entered into between the Italian Football Players’ Association (AIC) and the professional leagues on 23 July 1981 (the “Advertising Convention”).

In a nutshell:

  • Individual players image rights (without colours, logo and teammates of their club) belongs to the players (“Individual Rights”).
  • The AIC can exploit the image of the players for collections (e.g. Panini stickers) or when more than 3 players are used.
  • Clubs can exploit the images of their players in the clubs’ uniform provided that there are 4 players together (the “four players” rule).

Pursuant to Art. 26 paragraph 2 of the AIC Statute, with the registration to the AIC, players grant to AIC the right to exclusively exploit their images, names and nicknames in connection with their professional activity “in group” (the “Group Rights”).

Pursuant to the Agreement between the Italian Serie A Football League (LNPA) and AIC regarding the exploitation of the players advertising rights for the realisation of collective products of 9 October 2012, AIC assigned the rights, as laid down in art. 26 paragraph 2 of the AIC Statute above, to the LNPA on a license basis for a five-year term. At the sake of clarification, “collective products” means the exploitation of the image in commercial initiatives evocative of the championship and other competitions organised by the LNPA, thus excluding those referring to a limited group of players and/or clubs.

On the same day AIC granted FIFPro, on a nonexclusive basis, the Group Rights (pursuant to art. 26 paragraph 2 of the AIC Statute) in connection with the players who are members of AIC.

However, is not news, that prominent football players disputed that their membership to the AIC would allow straight away FIFPro to exploit their image.

Therefore said players proceeded to exercise their rights to withdraw as a member from AIC, informing FIFPro accordingly. However, neither the AIC nor FIFPro never took an official stance on this matter, but desperately requested to amicable settle the issue.

Now, the elephant is in the room, and will be interesting to see how AIC and FIFPro will react in case of a massive withdrawal of the membership and relevant consent to the exploitation of the players’ image rights, which would render, in the opinion of the undersigned, said exploitation by the publishers (e.g. EA and Konami) unauthorised and therefore illicit.

Marketing & Communication