|Dennis Oliech (in red) in an EABL forum Photo courtesy|
So serious is the matter that it was recently brought for debate in the Kenyan parliament. The stalemate persists at a time when the country needs all its resources in preparation qualification matches for both the Africa Cup of Nations and World Cup later in the year. The purpose of this article is not to opine on the rightfully legalities of the case but rather provide a contextual reference to the issue of image rights in professional sport to illustrate the Oliech issue as reflective of the link between political economy of sport and the media; a relationship that Richard Haynes, from the Department of Film, Media and Journalism, University of Stirling in the UK refers to as an inseparable couplet that presents a marker of contemporary culture and entertainment at the start of the twenty-first century.
Image rights, broadly defined as the commercial appropriation of someone’s personality, including indices of their image, voice, name and signature, have become increasingly important in the political economy of media sport. Writing in the European Sport Management Quarterly of 2007, Haynes notes that a range of legal, economic and political arguments have developed in the UK as to what image rights actually are, their legal efficacy and their potential impact on developments in the long-standing relationship between sport and the media. Just like the likely loss of Oliech to Kenyan team national and overall risk of underperformance by the team, this sensitive relation can result in what Haynes states is a decay of a certain aspect of football as popular culture to becoming a mediated spectacle.
Oliech’s case just serves to highlight the commoditisation through the enclosure of intellectual property rights of football, a transformation that has encroached on areas of fandom and cultural practice that were once unrestrained or at least freer (e.g. patriotism duty) than is currently. Haynes positions his argument by stating that he dies not argue that things used to be better in the good old days, nor that sport stars should not enjoy the trappings of their successful careers, but his fear is that on economic grounds alone the modern globalized and highly commodified football industry is in danger of killing the ‘goose that laid the golden egg’.
Haynes traces the origin of the how the term image rights entered the consciousness of most British football fans to the year 2000 when Real Madrid made their then world record signing of Portuguese midfielder Luis Figo from arch-rivals Barcelona. According to the scholar, crucial to the negotiations was the retention of Figo’s image rights by the club enabling Real to exploit the players name and image on their merchandise and share in the profit from any personal endorsements the player might attain from sponsorship or advertising. If footballers were ever perceived as commodities this surely set the ball rolling. Real Madrid went on to negotiate similar image rights deals with a number of their so-called ‘‘Gallacticos’’ notably Zidane, Ronaldo and most prominently David Beckham, to underline the centrality of exploiting licensing contracts above and beyond their success on the field.
In contrast, Haynes notes that less publicized image rights deals had also taken place in English club football when Arsenal signed Denis Bergkamp from Inter Milan and David Platt from Sampdoria which enabled the club to include an image rights clause as part of their salaries. The key to the contracts was the ability for players to offset income tax and national insurance payments through earning commercial income sourced outside the practice of playing football and in this way, the player’s personal-image-rights company would enter into contractual negotiations with the club for the exploitation of the rights. Haynes shows that through such contracts, players would only be due to pay capital gains tax (which stands at a much lower rate) on the incomes of their salaries gained from endorsements and other commercial activities. Similarly, the club would not be due to pay any social security payments on payments for a players image rights.
Lewis and colleagues in a book titled Sport: Law and Practice note that Bergkamp and Platt were able to exploit this tax loophole because they were previously domiciled outside the UK. The authors further note that despite being taken to court, the decision ruled in favour of the players on the grounds that commercial revenue earned outside the UK is distinguishable from the core activity of their employment (namely playing football) and is not subject to UK income tax. Following this ruling, many Premier League clubs instigated similar contractual deals with elite players and those signed from outside the UK. However, even players domiciled in the UK were able to develop image rights clauses by setting up investment trusts outside the UK, mainly in the Netherlands or the Republic of Ireland, where tax laws were more favourable. These practices are now well ingrained into the transfer and contractual negotiations of players at the elite end of the game.
Haynes observes that where players were once obliged to simply appear in the annual club photograph, have their image reproduced for bubble gum cards or sticker albums and do the occasional public relations stint at the local supermarket, contemporary footballers are groomed and managed with an array of support staff including agents, publicists, financial advisors and most importantly lawyers primed to exploit every available nook-and-cranny of the football gravy train.
In 2003 the Professional Footballers Association (PFA) renewed its standard form agreement for players with English Premier League clubs to include new regulations on image rights. Clubs were now obliged to include in their salaries specified payments for promotional and marketing activities undertaken by their players, whether they were megastars or not.
The attempt by professional footballers to commercially control images and other information about soccer is happening at a time of expansion in the communication of all things related to the game. In this regard, sport, most notably football, has been one of the most vociferous industries in protecting images, data and relevant commercial information from escaping in to the public domain.
Drawing from examples in Britain, Hyanes notes it is clear that economic and legal issues are increasingly at the forefront of any communications connected with the sport. Indeed these twin issues are characterized in Oliech’s case as well. Awash with money from television rights and sponsors the games’ position in popular culture and the relationship between players and clubs, players and fans, and clubs and fans have been redrawn. Likening to David Beckham’s career as a celebrity and brand, Oliech’s case is one in which the sport in Kenyan is witnessing for the first time a level of economic and legal intervention in the life of professional footballers and their relationship with the media and their audience, one that is markedly changed from previous eras of the sport [recall ‘Kadenge na mprira’?].
The images and names in sport are not merely economic assets to be exploited, but are embedded more generally in the cultures of sport such as in British football which Haynes notes is seemingly rewriting its cultural contract between football and its fans. This is equally being brought to the fore by Oliech in the Kenyan football scenario. As footballers get sucked more into the media dominated entertainment industries, this has primarily occurred along commercial lines protected by intellectual property law as it is in the film, television, music and associated industries.
Ultimately, the economic imperatives of the football industry are generated from the core value of the sport, its new breed of football celebrities, be they international or local. Thus the terse situation created by the case of Oliech is a result of what Haynes notes is the crevice of football culture becoming commodified and commercialized and where in effect the historic organic ties between clubs/national teams, players and supporters become strained.
By Satwinder Rehal
The author is an Associate Professor at the De La Salle College of Saint Benilde, Manila, The Philippines, and an Online Instructor in the School of Population, Communication & Behavioural Sciences, the University of Liverpool (UK). The author acknowledges access to the e-library of the University of Liverpool for the article by Richard Haynes, ‘Footballers’ Image Rights in the New Media Age’ published in the European Sport Management Quarterly 7:4, 361-374 of 2007.