How did Dybala's image rights affect his proposed transfer to Tottenham?

This piece was firstpublished by the excellent Goal.comhere

Getting a deal over the line can be complicated at the best of times but complications over marketing opportunities can make things even worse

It has been reported over the last few days that Paulo Dybala's transfer to Tottenham hit choppy waters and ultimately collapsed because the issue of his image rights could not be resolved.

Whether that was the case or not, it had the effect of shining the spotlight on what image rights in UK football actually are and why they can complicate multi-million pound transfers.

Here, sports lawyer Daniel Geey explains exactly what image rights are and how Dybala's case might have been affected.

What are image rights?

Clubs have traditionally paid their players solely for playing football. This relationship has evolved. As commercial drivers push football into the entertainment and brand space, clubs are looking for a variety of ways to ‘monetise’ and grow their revenue base.

As such, clubs are entering into a variety of commercial partnerships whereby brands want to be associated with clubs and their high-profile players. Some Premier League clubs have in excess of 60 commercial partners, all seeking the right to use images of high-profile players in their advertising.

A player’s image can include their player’s name, nicknames, likeness, image, photograph, signature, autograph, initials, statements, endorsement, physical details, voice and other personal characteristics.

The idea is that the above descriptions include everything that may form part of that player’s image for the player and/or his club to then market accordingly. A club and/or brand will be paying a player to endorse and promote a number of specific commercial deals.

Who owns Dybala's image rights?

It has been reported in the Dybala case above that a third-party marketing company, 'Star Image', had paid the Argentine to acquire his image rights.

If this is the case, then any agreement in return for such sums would have required the player to undertake a certain amount of commercial activity with a range of brands so that the company could recoup and hopefully make a profit on the initial outlay to Dybala.

From promotional publicity undertaken by the player over the last few years, it appears he has done endorsement work for brands including Samsung, Gatorade, Monster, OTRO, FIFA and Adidas.

Why is Dybala's image rights case so complicated?

Potential image rights complications arise when a club wish to use a player’s image rights for particular purposes.

At the most basic level it may be that they want to use his image for club purposes, such as images of him in club kit, in the club shop, across their commercial and social channels and in conjunction with particular existing club sponsors and partners.

Under, for example, the standard Premier League employment contract that each player enters into with his club, certain provisions allow for a club to use a number of their players to promote their sponsors.

It is, however, quite limited in scope (for example, the contract typically states “the Club’s use of the Player’s Image must not be greater than the average for all first team players”).

However, if Dybala does not have control of such image rights (because he sold them to a third-party company), the club would need to come to a commercial agreement with the marketing company to use such rights. It may have been that the marketing company valued those rights much higher than the club.

The necessity for club image rights deals

If a club do not have a separate image rights agreement in place with their star players it would be difficult to use, say, Harry Kane’s image with the majority of the club’s commercial partners because that is not generally permitted under a player’s standard employment contract (as explained above).

And, more importantly, the club’s commercial partners would probably want to use Harry Kane’s image more than perhaps one of the first-team squad players who would be less recognisable in other markets.

So the reality is if Spurs want to use the player’s image across a range of sponsorship opportunities, then it becomes pretty important for the club to contract separately with the player through an image rights deal to have control of those rights to endorse particular products and services.

The reported complication in the Dybala situation is that usually the player owns his image through a company and the club contracts with the player’s company. That does not appear to have been the case with the Dybala transfer.

Image rights restrictions

When negotiating a club image rights agreement with the company that owns such rights, most elite Premier League clubs will try to limit a player’s personal image rights options (i.e. Spurs may ensure that their players cannot endorse another insurance company or car manufacturer, even in a personal capacity, as Spurs are sponsored by AIA and Audi).

Limiting the company that owns Dybala’s image rights from sourcing deals means that they are further restricted from finding lucrative brand deals that they would otherwise enter into.

The marketing company owning Dybala’s rights may have wanted additional compensation from Spurs for the lost brand and commercial opportunities if the club were to restrict particular future deals.

In addition, it may be that current deals already signed may put the player in potential conflict with existing club partner agreements. In May 2016, it was reported that one of the matters holding up the appointment of Jose Mourinho as manager of Manchester United was a conflict over his image rights.

It was reported that Mourinho’s individual commercial deals, entered into before he joined Manchester United, may have been with competitors of the club’s own sponsors. Negotiations apparently centred around his deals with Jaguar and the watch company Hublot – and presumably United’s arrangements with their own sponsors, Chevrolet and Bulova.

These types of commercial conflicts are becoming more frequent: players and managers have their own individual commercial deals, but clubs don’t want to devalue their own sponsors/partner brands.

As Manchester United have more than 60 commercial partnerships/sponsorship deals in place, the potential for conflict is huge. he marketing company owning Dybala’s rights may have additionally asked the club for more money if certain agreements needed to be terminated or amended.

Future considerations

In summary, the marketing company Dybala sold his image rights to may have been asking for large amounts in relation to the club using the player’s image for club activity, for lost commercial revenue if the company was restricted by the club in future deals they could sign and for potential deals they may have to amend or cancel because they conflict with existing club partnerships.

This reported Dybala example is very much the outlier as most players own the company that exploits those image rights. Nonetheless, as image rights structures become more complicated, commercial solutions for off-field commercial matters will be important to consider when dealing with multi-million pound cross border transfers.