Big and Little Figures: How Image Rights Enrich Some and Neglect Others

Sports and intellectual property law are deeply intertwined. While people playing out in the park might not draw any attention, the globalization of organized sport has garnered the focus of billions creating an unfathomably lucrative intersection. When you think of sports you think of the game you’re watching on the television, or the couple hundred dollars you might spend to get into a stadium. Behind the scenes, though, there are billions of dollars switching hands to license copyright to television companies. Sports leagues have been demanding large sums of money to allow broadcasters to produce and reproduce their product.

Thanks to the growth of television and advertising, sports leagues have been flooded with cash. One of the most prized products is soccer in Britain. Specifically, the Premier League, the top tier of English soccer, continues to bring in and spend the most money. In 2019, the Premier League agreed to a deal to license broadcasting rights for $11.7 billion dollars over three years from 2019-22. Thanks to this, during the summer of 2019, Premier League clubs spent 1.4 billion pounds on acquiring players from other clubs. All of this is to say that IP rights can be incredibly valuable.

To elucidate this point, we can compare the situations of Aston Villa in the Premier League and Granada in La Liga Santander (the top league in Spain). These two leagues are widely regarded as the most popular in all of world soccer. But given the price paid, the Premier League holds the crown. In most soccer associations, the leagues operate on a point system. Each association has tiers where top teams get promoted and bottom teams are relegated. For instance, during the 2018-19 season, Aston Villa competed in the English League Championship, the second tier of English football. Due to their success that season they were promoted to the Premier League, and for this achievement were awarded a whopping 170 million pounds to be paid over three years. Meanwhile, Huddersfield Town, Fulham, and Cardiff City were relegated from the Premier League to the Championship. That same season, Granada was promoted from the second tier of Spanish soccer up to the top tier.

Now to spending. Of the 1.4 billion dollars spent, promoted club Aston Villa spent 144.5 million pounds, all to avoid relegation on the final matchday of the 2019-20 season finishing 17^th out of 20. By contrast, Granada spent a total of $9.6 million, and managed to finish an impressive seventh. This might reflect the overall quality of either league or the shrewdness of business activity of either club. But the point is that television rights have created a chasm in finances between the Premier League and other top leagues. With image rights, the same could occur between individual players’ finances.

I don’t want this to seem like the right to publicity will suddenly make some players so much richer than others. In Paris St Germain’s salary structure, Neymar pulls in 700,000 euros a week, while another regular player Juan Bernat makes 95,000 euros per week. While still quite a bit of money, you can see the great disparity in their salaries, and that only grows for other players and less rich teams. Nonetheless, image rights add to that figure, and could have other implications.

In August, soccer superstar Lionel Messi had a short-lived transfer saga with his long-time club Barcelona. He was disgruntled with the club and wanted to terminate his contract. This led sports writers into a frenzy, some inquiring into how much he might cost to a new club. It was revealed that he earns around $72 million per year as his base salary. On top of this, Barcelona has been paying him $12 million a year for his image rights alone. The average salary in the Spanish league where Messi plays was $1.9 million in 2010. Messi earns six times more money from his likeness alone than do most of his peers for their soccer ability (though many would argue he is peerless).

Image rights can have implications beyond how much money a superstar will earn. During the summer transfer window in 2019, English club Tottenham Hotspur were looking to complete a deal for Juventus forward Paulo Dybala who plays in Italy. Everything seemed to be progressing when suddenly the deal was called off. Tottenham discovered that Dybala had sold his image rights, which Tottenham would have been hoping to use in its advertising. Because in Europe players and not teams own image rights, popular players can use their likeness as leverage in contract negotiations. In other situations, they might cause a potential transfer to fall through.

In the U.S., the right to publicity is likewise protected. Thus, anyone who wants to use someone’s likeness must license it. This extends to platforms like video games. Video game companies like Electronic Arts and Take-Two Interactive create noted sports franchises like FIFA and NBA 2K respectively. As such, they must pay all the players whom they wish to feature in their games. Generally this is low stakes because it’s hard to think that any portrayal in a video game would somehow hamper an athlete’s ability to use their likeness in real life.

Yet, well-known NBA legend Charles Barkley has continuously refused to be featured in the NBA 2K franchise, but for different reasons. He says that the franchise is offering former players much less than current players and will not appear in the game unless they offer more. For him personally it does not matter. He currently works as a basketball analyst on TNT and does not need the money for himself. Instead, he is worried about other players who may not have his safe financial situation and should be allowed to extract more from their likeness. In an interview he says, “I’m not trying to be a pig or greedy. They should donate the money to the retired players. If they would give a million dollars a year to retired players union, they can use my likeness.” Take-Two is a billion-dollar company, and Barkley is holding their feet to their fire. If they want to secure his likeness, they should contribute to those who may not have his level of notoriety. This may not be a humanitarian issue, but those players who after retiring can no longer rely on their salaries could be left in detrimental states.

We’ve seen on one end how lucrative image can be for certain players. However, for others who are less famous they could find themselves in more exploitative situations. The NBA 2K franchise certainly does not make most of their money from these retired players, but if they are insistent on using retired players in their games, Barkley believes they should be willing to better compensate those people. Whether through trademark or copyright or image rights, intellectual property continues to grow the money involved in sports. But there should be an increased focus on valuing the IP rights of players who may not rise to the level of a Lionel Messi or LeBron James. Nonetheless, athletes continue to appear on-screen and in advertisements and after their playing careers, are often gratuitous spokespeople for these leagues and games. Their IP rights should at least give them some kind of safety net.