EA Sports and players’ image rights in “FIFA”
Preamble
On 23rd November 2020, football star Zlatan Ibrahimović, who currently plays for the Italian club AC Milan, posted this on his Twitter account:
“Who gave FIFA EA Sport permission to use my name and face? @FIFPro? I’m not aware to be a member of Fifpro and if I was put there without any real knowledge through some weird manoeuvre. And for sure I never allowed @FIFAcom or Fifpro to make money using me (…) Somebody is making profit on my name and face without any agreement all these years. Time to investigate”
Other football players replied with a similar approach, such as Gareth Bale, currently under contract with Tottenham Hotspur, who stated on his Twitter account:
“@Ibra_official Interesting... what is @FIFPro? #TimeToInvestigate”
The tweets from two of the biggest stars in football indicate that EA Sports use their names and images in the FIFA video game without permissions. The tweets give rise to the question of what right EA Sports has that allows them to use the two football players’ image rights such as names and physical likeness in the FIFA video game. Further, one can assume that the process that led to EA Sports using Ibrahimović’ and Bale’s names and likeness in the FIFA video game is similar to the process that have led to EA Sports using the other 17,000 football players’[1] names and likeness in the same video game. According to The Athletic, a growing number of top players are likely to follow the lead of Ibrahimović and Bale and voice their objections to the use of their likeness in the video game without their consent.
The football player’s image rights in a nutshell
Football players’ image rights were duly defined by the High Court of England and Wales in case 2010 EWHC 1807:
“Image rights means the right for any commercial or promotional purpose to use the Player’s name, nickname, slogan and signatures developed from time to time, image, likeness, voice, logos, get-ups, initials, team or squad number (as may be allocated from time to time), reputation, video or fil portrayal, biographical information, graphical representation, electronic, animated or computer-generated representation and/pr any other representation and/or right of association and/or any other right or quasi-right anywhere in the World of the Player in relation to his name, reputation, image, promotional services, and/or his performance together with the right to apply for registration of any such rights”.
Image rights of professional football players are not regulated in sports law. Within EU, the right to one’s own image is regulated pursuant to the internal law of each Member State. The extent of a football player’s image rights could differ from country to country. A common starting point, however, is that image rights are governed by the principle of freedom of contract.
In the beginning of a football player’s career, the image rights are owned by the player himself, i.e. the player’s image rights cannot be exploited by anyone without the player’s consent. When the player signs a contract with a club, the club will normally obtain certain image rights from the player, i.e. the player gives his consent to the club obtaining parts of his image rights, enabling the club to use the player’s image rights as a part of the club’s marketing strategy. If the player is chosen to play for his national association, the national association will normally also obtain certain image rights. The image rights that originally was solely the player’s, will then be split between the player, the club and the national association.
On what legal basis can EA use players’ names and image rights in the “FIFA” video game?
EA Sports is a division of Electronic Arts that develops and publishes sports video games. “FIFA” is one of their most popular video games and has been released in new editions yearly since 1993. Prior to the first game in 1993, EA Sports acquired an official licence from FIFA, the world governing body of football, giving name to the video game. The game includes names and images of leagues, clubs and players that all have their counterparts in real life. The physical appearances of the players in the video game are very similar to their real-life counterparts. The names and physical likeness constitute parts of the image rights that originally belonged to the players. The key issue in the discussion following the tweets from Ibrahimović and Bale is if the two players have given their consents to EA Sports using their names and likeness in the “FIFA” video game. Judging from the tweets, it is natural to assume that the two players have not given their consents directly to EA Sports.
In the aftermath of the Ibrahimović and Bale tweets, EA Sports replied, and stated: 'We are aware of discussions around licensing of players in EA Sports FIFA. The current situation being played out on social media is an attempt to draw FIFA 21 into a dispute between a number of third parties and has little to do with EA Sports. To be very clear, we have contractual rights to include the likeness of all players currently in our game. As already stated, we acquire these licenses directly from leagues, teams, and individual players. In addition, we work with FIFPro to ensure we can include as many players as we can to create the most authentic game. In these instances, our rights to player likenesses are granted through our club agreement with AC Milan and our long-standing exclusive partnership with the Premier League, which includes all players for Tottenham Hotspur.”
In other words, EA Sports acquire consents from four categories of sources; leagues, teams, individual players and FIFPro. In the cases of Ibrahimović and Bale it is rather clear that they have not given such consents directly to EA Sports. Negotiating the rights of every player at an individual level is neither a viable strategy for EA Sports, and one must assume that the vast number of consents are acquired by EA Sports collectively, through agreements with leagues, teams and FIFPro. The central question then is if the leagues, teams and FIFPro are in positions to negotiate the players’ image rights with EA Sports.
FIFPro, the International Federation of Professional Footballers, is the international organisation of 63 national players' associations from across the world. The football players are not directly members of FIFPro, rather they are members of their national associations. Membership in the national players’ association would normally be volunteer, such as in Italy, where the statutes of the Italian players’ association reads (freely translated) “All Italian and / or foreign players registered for companies registered in the Italian professional and non-professional leagues organized by FIGC, as well as Italian players registered for teams registered in foreign leagues, may be part of the association (…) To be part of the association, those who pay according to art. 6 of these articles of association, must submit an admission application in writing to the board”. In other words, unless Ibrahimović has applied for membership in the Italian players’ association, he is not a member. If he is not a member, then the Italian players’ association cannot transfer image rights to FIFPro, and FIFPro will not be in a position to negotiate Ibrahimović’ image rights with EA Sports.
FIFPro shed light on their role in the use of players’ image rights in the “FIFA” video game, when they in a statement 26 November, as an answer to Ibrahimović and Bale’s tweets, told Mirror Football: "In light of recent media reports, FIFPRO wishes to clarify the manner in which it obtains the image rights of players, and its role in defending the employment rights of professional footballers worldwide. FIFPro, a not-for-profit organisation, acquires image rights via player unions in nearly 60 countries. These rights are made available to Electronic Arts and other clients in the video gaming industry. FIFPro's relationship with the video gaming companies complements separate arrangements they directly agree with clubs, leagues, governing bodies and individual players.”
An interesting point from the EA Sports statement is that it claims that their right to use Ibrahimović’ image rights arises from a club agreement with Ibrahimović’ club AC Milan, whilst their right to use Bale’s image rights arises from an agreement with Premier League, “which includes all players from Tottenham Hotspur”. As the employment relationship is a relationship between the club and the player, there is no contractual relationship between the player and the league[2], in this case the Premier League. Given that EA Sports’ statement is correct, this reveals that Premier League has obtained image rights of players who play for teams in the Premier League, presumably through agreements with its affiliated clubs, unlike in Italy, where EA Sports apparently has obtained the players’ image rights through agreements with the clubs.
As the image rights of the football player originally belongs to himself, preventing the player’s image rights from being exploited by anyone without the player’s consent, EA Sports cannot obtain the image rights from clubs, leagues and FIFPro unless the clubs, leagues or FIFPro have obtained the image rights with regards to names and likeness from the players, and through their agreements with the players are in positions to negotiate conditions for EA Sports to use the players’ image rights. To what extent a club, a league or FIFPro can conclude an agreement with EA Sports with regards to EA Sports use of a player’s name and likeness would depend the agreement between the player and the club or FIFPro. In Brazil, football players registered with the football club Santa Catarina allegedly settled a dispute with EA Sports, as EA Sports had negotiated image rights with FIFPro, although FIFPro had not obtained the right to negotiate image rights from the players. If EA Sports, as in England, has concluded an agreement with the league, it would also depend on the agreement between the player’s club and the league.
As there are 17,000 football players who have in-game counterparts in the “FIFA” video game, it is natural to assume that there is a wide range of contracts that regulate to what extent the club or FIFPro could sell the image rights to EA Sports. If a contract specifies that the player gives the club or FIFPro the right to make an agreement with EA Sports to use the player’s name and likeness, it is obvious that EA Sports has obtained such a right. However, if a contract regulates the matter of image rights more generally, it is debatable whether the club is in a position to pass on parts of the image rights to a third party such as EA Sports.
The Premier League standard player’s contract 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”.
In the Premier League standard player’s contract, the club is given the right to use the player’s image rights to a wide extent, as long as it is in connection with the promotion of the club. However, the wording of the contract does not necessarily cover the transfer of the image rights to EA Sports. How civil courts or the Court of Arbitration for Sport would consider a claim from players that dispute that they have given the club the right to transfer the image rights to EA Sports is open for debate.
Dispute resolution
If Ibrahimović, Bale or other football players would like to challenge EA Sports, claiming that they have taken advantage of their image rights without consent, a dispute can be settled by either ordinary courts or sports arbitration courts such as the Court of Arbitration for Sport. For further on dispute resolution in sports, please read this article.
[1] https://en.wikipedia.org/wiki/FIFA_20
[2] In some leagues, such as MLS, there is a contractual relationship between the players and the league, se Ryan Becker’s article published at https://www.lawinsport.com/topics/contract-law/item/contractual-relations-in-the-nfl-premier-league-mls-a-comparison-part-2
