#TimeToInvestigate…

In England and Wales there’s no statutory protection of players’ “image rights” (i.e. name, likeness et al).

Players can contract to licence the use of their image.

O/wise, there’s the common law doctrine of passing off, copyright law, and trademark law.

𝘾𝙤𝙣𝙩𝙧𝙖𝙘𝙩

The standard form of Premier League player contract (see Form 15 in the @premierleague Handbook, pg. 315) includes mandatory provisions as to the contracting player’s image (see Premier League Rules, Rule T.20).

‘Player’s image’ is defined in the standard form of PL player contract as:

Clause 4.6 of the standard form of PL player contract states:

‘Club context’ in that clause 4.6 of the standard form of PL player contract is defined as:

If above relevant parts of the standard form of PL player contract do not permit use of a player’s image rights in a #FIFA21 way, it is still open for club to enter a separate image right’s contract w/ player, which may expressly provide for use of the player in a #FIFA21 way.

Also, worth noting that the PL Rules adopt the same definition of ‘Player’s Image’, and that Rule D.2 states:

𝙋𝙖𝙨𝙨𝙞𝙣𝙜 𝙤𝙛𝙛

Remember @rihanna’s claim against @Topshop for that “boyfriend style tank” (I was working at Topshop at the time…)? That was a (successful) claim for passing off. In the first instance decision (which was upheld by CoA on appeal), Birss J stated:

There are three things that must be proved for a successful passing off claim: (i) goodwill, (ii) misrepresentation and (iii) damage.

Goodwill: the claimant (say, for example, @GarethBale11) must have a goodwill to protect (please refrain @realmadriden fans…).

Goodwill has been described as ‘the benefit and advantage of the good name, reputation, and connection... It is the attractive force which brings in custom’ IRC v Muller & Co [1901] AC 217, 223.

Misrepresentation: I can’t summarise better than Birss J did at [33] of Fenty & Ors v Arcadia Group Brands Ltd & Ors [2013] EWCA 2310 Ch, so see the image below:

So think about it (although is quite a reductive test): do people buy @EASPORTSFIFA because they think, say, @GarethBale11 has endorsed it?

I buy FIFA b/c I like the gameplay, the majority of clubs are official ( @juventusfcen @ASRomaEN ) and all the players are official.

Damage: if there is a misrepresentation then, for a passing off claim to be successful, it must be damaging to the claimant’s goodwill. So, for example, let’s look at what Birss J said in RiRi’s case at [74]:

The remedies in a passing off claim: injunction (restraining the product from sale/use), damages for loss of sales/damage to goodwill or an account of profits.

Despite all that, possibility of a passing off claim is likely undermined due to contractual position explained above.

𝘾𝙤𝙥𝙮𝙧𝙞𝙜𝙝𝙩

Unlikely to help.

There’s no copyright in a face or a name. Nothing from #FIFA21, in my opinion, would amount to ‘artistic works’ for the purposes of copyright law. This article from @TobySportsLaw is very informative on this issue https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3474375#

𝙏𝙧𝙖𝙙𝙚𝙢𝙖𝙧𝙠𝙨

Unlikely to help.

Players can trademark their names. @alanshearer did in 1995. David Beckham did in 2000. Gareth Bale did in 2013.

However, names in #FIFA21 are for descriptive purposes, not indicating trade origin (Arsenal v Reed [2003] EWCA Civ 696).

My opinion: considering all of the above it’s likely that - in England and Wales - that a player’s club owns the player’s image rights insofar as they are to be used in #FIFA21. I understand that #FIFA21 obtains licenses from clubs to use such image rights accordingly.

In that context, I think it would be difficult for a player in England and Wales to bring a claim against @EASPORTSFIFA/ @EASPORTS for use of the player likeness/name in #FIFA21. I do not know the position in other jurisdictions. #TimeToInvestigate