FIFA: How Does the Most Successful Sports Video Game Obtain Player Image Rights?
Recently, however, world renowned soccer player, Zlatan Ibrahimović, took to twitter to question who gave FIFA permission to use his “name and face.”[1] He then followed up by tweeting that others have unjustly enriched themselves by using his image, while also declaring that he would investigate further.[2] Soon thereafter, Gareth Bale responded to Ibrahimović’s tweets by writing: “Interesting… what is @FIFPro? #TimeToInvestigate.”[3] So, what are image rights and how does EA Sports get authorization to include player names, likeness, and images in FIFA?
Commercial rights in an individual’s personality are also known as image rights.[4] These rights allow an individual to prevent unauthorized use of their name, likeness, or other personal indicia, such as distinct physical or style characteristics, or anything else associated with them.[5] One way through which EA Sports acquires player image rights is by dealing with the Federation Internationale des Associations de Footballeurs Professionnel, also known as FIFPro.[6] FIFPro, a global player’s union, is made up of 65 national player’s associations from across the world.[7] One of the “key principles” listed on FIFPro’s website states: “A player’s name, image and performance may only be commercially utilised with his or her consent, voluntarily given.”[8] The website goes on to state that such rights are “made available to Electronic Arts and other clients in the video gaming industry.”[9] In order for EA Sports to use a player’s image rights in their video game, they must either have a specific agreement with their club, with the individual player, or with the league.[10] Gareth Bale’s club, Tottenham Hotspur FC, has authorized the Premier League to transfer or sell the license to use the image rights of the club’s players.[11]
Unlike the Premier League, the Italian league (“Serie A”) does not have the ability to transfer or sell licensing or image rights of players or teams.[12] Rather, as EA Sports notes in their response to Ibrahimović, they have an agreement with Ibrahimović’s club, A.C. Milan.[13] By signing a contract with the club and playing for them, Ibrahimović seems to have already signed over to EA Sports the ability to use his image and likeness.[14] This highlights the fact that some, if not most, players do not actually have the knowledge or are aware that they have signed away profitable image rights. While EA Sports may argue that the players themselves are benefitting through the massive exposure of being included in a game as popular as FIFA, the underlying point is more related to the direct authorization from players to EA Sports. If a player as well-known and well-equipped as Ibrahimović is unaware that his contract with his club involves the transfer of his likeness or image rights, it is not far-fetched to assume that many less well-equipped players are in the same situation, or worse.
Furthermore, in June 2020[15] a Brazilian court actually ruled that EA Sports in fact needs to negotiate and acquire authorization from players directly.[16] Union of Athletes of Santa Catarina v. EA Sports involved a class action lawsuit brought by more than 450 football players against EA Sports.[17] They alleged that from 2005 to 2014, EA Sports reproduced their images without prior authorization.[18] The court agreed with plaintiffs and awarded them R$6.5 million, or R$5,000.00 per player for each FIFA game produced by EA Sports during the years in question.[19] EA Sports argued that they had lawfully acquired the rights through FIFPro[20] — the same argument presented in response to Ibrahimović. However, the Brazilian court ruled the country’s governing law vests image rights with the athlete, so FIFPro could not assign any image rights on the player’s behalf.[21] Thus, current Brazilian law now requires direct negotiations with players to obtain their image rights.[22] Unfortunately, for Ibrahimović and Bale there currently does not exist any legal avenue through which they could potentially obtain some redress. However, it will be interesting to see if other countries and sporting communities follow Brazil’s recent decision.
Footnotes
