ECTA European Communities Trade Mark Association 26 th Annual Meeting in DEAUVILLE

Transcription

1 ECTA European Communities Trade Mark Association 26 th Annual Meeting in DEAUVILLE The Creation of a Personal Brand in the Football Industry Maurice Watkins Senior Partner, Brabnes Chaffe Street LLP Director, Manchester United Football Club Limited FOOTBALL THE BIGGEST BRAND OF ALL: Good afternoon. I will be speaking today about particular issues regarding the creation of a personal brand within the football industry. It is arguable that no other industry in the world is as illustrative of the power of brands as that of football. Football is regarded as the world s game, with competitions such as FIFA s World Cup attracting huge television viewing figures, enabling national teams, clubs, players and sponsors a unique opportunity to expose their brands to a significant number of people across the globe. Over just four weeks and 64 games, the FIFA 2006 World Cup in Germany attracted a total cumulative television audience of billion people watched in 214 countries, with the Final between Italy and France being seen by over 608 million viewers. Today, brands lie at the heart of football, whether it be that of a competition or league (FIFA s World Cup or UEFA s Champions League), a national team (Brazil, France, Germany or Italy), a club (Manchester United, Barcelona or AC Milan), the personal brands of their players (Beckham, Ronaldinho or Kaka) or the brands of those businesses seeking to associate themselves with one or more of them, whether by way of sponsorship (for example, Coca-Cola, Anheuser Busch, Ford or Hyundai) or by way of merchandising, broadcasting or other arrangement. So what is a brand? The term brand can mean a name, a logo, a slogan or a design that is associated with a business, a charity, some other form of organisation or an individual, and the products or services offered by them. Brand holders, whether sports entities or multinational companies, strive through promotion of their brands in advertising, point of sale and other media and marketing activities to ensure that their brands influence, are recognised, and ultimately are reacted to by consumers.

2 Whether UEFA and the Champion s League, Anheuser Busch and Budweiser or Sony and Playstation, the brand owner wants its brands to become ingrained into the consumer s mind, with people wanting to become a part of those brands, a part of what they represent, and to experience the lifestyle and values that is perceived to come with them, ultimately resulting in the brand owner gaining a greater share of the market place. For business sponsors the sponsorship of a competition, club or high profile player can rapidly transform a business whilst providing the competition, club or player with new and exciting revenue opportunities. For such sponsors (as we shall see later with Manchester United and its first club shirt sponsor, Sharp, and its current equivalent partner, the US insurance giant AIG) the power of associating their brands with high profile sporting brands, and the business opportunities, sometimes worldwide, which can be created, cannot be underestimated. What then do we mean by the term brand when we are talking about personal brands and personal brands in football? Any scan of current media will encounter references to the term Brand Beckham, as David Beckham prepares to take on his new role playing for LA Galaxy in the United States. For modern day footballers, the term brand has evolved in the 21 st century to mean the way of life, the lifestyle (both on and off the pitch) of that player, and is closely associated with the products and services that an individual chooses to wear, use, and endorse. A person s image no longer corresponds to his depiction in a photograph. Whether Thierry Henry and the Je ne sais quoi of the French with Renault and the Clio or David Beckham and the slick, sharp smartness of Police sunglasses, the word image has now come to encompass a far wider range of representations and values of an individual. However, to look further at and to understand how footballer s personal brands are created and developed, it is necessary to examine how those brands emerge and exist within the creation and development of the brands of the clubs for whom those players play. To do this, we will use the case study of Manchester United and David Beckham and other players. CASE STUDY: MANCHESTER UNITED FOOTBALL CLUB: Manchester United is one of the most successful clubs in English football, having won the English Championship sixteen times, the FA Cup eleven times, and the UEFA Champions League twice. The club has also had, on average, the highest spectator attendance in English football for the past thirty-four seasons. At the same time, from the small team originally formed in 1878, it has become one of the world s biggest sporting brands. From the Busby Years (1945 to 1969) and the iconic Sir Matt Busby to 1958 and the tragedy of the Munich air disaster, in which 8 players died, to the resulting strong spirit and resilience that resulted in the European Cup win of 1968 and the team that included George Best, Denis Law and Sir Bobby Charlton, to the mid to late 1980 s and the arrival and subsequent achievements of Sir Alex Ferguson, Manchester United has become a success story not only on the field but off the field, becoming one of the most recognised brands in the world, both within and outside of sport, with

3 a value on the UK Stock Exchange in March 2000 of over 1 billion. Such is the appeal of the club, it was then bought in May 2005 by the Glazer family, also the owner of the NFL football team the Tampa Bay Buccaneers in the US at a cost of 790 million - $1.47 billion dollars. The 1990 s saw the club not only attract a number of new players such as Eric Cantona and Roy Keane but also develop an unprecedented collection of young players from its academy, all of whom are now well known both on and off the pitch. In 1999, the team then made history by winning an unprecedented English Treble bringing 3 trophies to Old Trafford, the English League Championship, the FA Cup and the UEFA Champions League, the last of which was won in dramatic fashion at Barcelona s Nou Camp stadium. Off the field the club is arguably the most valuable football club in the world. The latest Forbes business survey for 2007 placed it above Real Madrid at the top spot. Another survey, the Deloitte Report, ranked it in fourth place for the 2006/7 Season, with a move up the table anticipated in With a global fan base estimated to be in excess of 50 million people, its power as a business, and more importantly, as a brand, is huge. This extensive commercialisation has ensured that Manchester United s name and status has resonance across the world. This global impetus is supported by various arms of the business, many of which specifically exist to bring the Manchester United experience and the Manchester United brand to fans around the world, a large number of whom will never get to visit Old Trafford and see Manchester United play at home. These arms include MUTV (the dedicated Manchester United satellite TV channel). MUTV has become an increasingly important means of expanding the Manchester United brand over recent years. As well as being shown in the UK and Ireland, through its relationship with IMG Media, MUTV is available in many other territories throughout the world, including the United States of America and Asia. In addition, manutd.com, the club s dedicated website, allows users to subscribe to a service where matches are broadcast in full. Developing its media rights is and has been a key facet of the club s business expansion, and with media rights alone bringing over 45m turnover to the club for the year, it is clear that this strategy brings success. Such activity is supported by numerous other commercial relationships including those bringing the Red Cafes (a chain of Manchester United branded cafes) and various club financial products and services such as club branded credit cards to fans throughout the world. The club s visibility has also been assured by associations with leading global clothing and automotive partners Nike and Audi, which produce major revenues for both club and sponsor. These collaborations represent significant business; the Nike deal alone is worth over 300m spread over the period of the contact. Club tours to places such as South-east Asia, South Africa, the United States and Scandinavia have continued to expand the Club s brand on this world scale. Publications by the club, along with website content, are also provided in alternative

4 languages, which ensures that the club s audience is always kept up to date, whether they live in China, within the UK, or elsewhere. Key markets such as South-east Asia are also bolstered by the club s associations with other highly visible brands, such as Air Asia, a low-cost carrier in the region, which proudly displays the Manchester United brand on some of its fleet and sells club branded merchandise on board. Air Asia s status as a business is undisputed in the region; its most recent Annual Report showed turnover revenue of 131m, up 28m from the previous year. Links with solid and well known brands such as the US insurance giant AIG also demonstrate the innovative and forward thinking approach taken by the club in relation to whom it chooses to work with. AIG has recently reported net income for the first quarter of 2007 as nearly 2.1 billion, up over 30% from the first quarter of 2006, with consolidated assets of over 500 billion. The relationship between the club and AIG, worth over 50 million, sees AIG s name on the front of the club s shirts and enables AIG to provide certain club branded financial products on a worldwide basis, is mutually beneficial, and provides kudos and respect to both parties, particularly for AIG which is targeting the market in Asia where Manchester United s fan base is huge. The effect of being Manchester United s sponsor is significant. The electronics giant Sharp was the first major sponsor of the club, and the deal proved to be a great success for both the club and the company. Despite initial concerns at the time that people may not know who the Sharp brand was (a notion that seems absurd today), the association significantly contributed to the company becoming a household name in the Western world, and ensured that its standing on the international stage was secured. Today, the Manchester United brand is stronger than ever. However, whilst this stems in part from the dynamic history of the club, it must be remembered that some incredible footballers over the years have both contributed to and created that history. More recently, some of those players have, as a result of their on field performances and their association with the Manchester United brand, become brands in their own right, none greater than David Beckham. However, before we move to David let us first have a look at a short video of some of the Manchester United s recent successes, which shows what Manchester United is all about: [ SWITCH TO VIDEO OF MANCHESTER UNITED ] THE CREATION OF THE PERSONAL BRAND: The same Forbes list which I referred to earlier cites Barcelona s Ronaldinho as the world s highest earning footballer, closely followed by Real Madrid s David Beckham and Manchester United s Wayne Rooney. With total annual earnings in the region of 20 million euros, today s top players really do have the world at their feet, both in respect of professional and personal opportunities. As I stated at the outset, the term Brand Beckham is now very firmly lodged in the public consciousness, and is indicative of the current climate surrounding footballers

5 and their new and varied sources of revenue. Is David Beckham an extreme example of how a personal brand can grow, or is his level of brand identity now commonplace? With the recruitment of talented and successful players, clubs such as Manchester United and Real Madrid achieve standing not only for the quality of the football that they play, but also for the players that are in their team. These players, through their performances on the pitch, enhance the club s brand, they become part of its image for that point in time, and gradually through their own performances and their club s success their own personal brand begins to emerge. A player s own brand can begin with a move to a successful team. With that success comes increased awareness of that player, of his image, and of his abilities. Players are often on public display for large periods of time throughout the football season, and as a result, their lives become of particular interest to the media. From haircuts to hat-tricks, the life of a modern footballer is always going to be played out in the spotlight. The next stage in the development of a personal brand comes as businesses seek to be associated with that player. The link is simple; a successful player has kudos and thus becomes a powerful image for a business to exploit. Those businesses do not necessarily seek any affiliation with the club for whom that player plays; they want the individual, and the clarity that comes with that strategy. Players also now have real opportunities to make differences to their communities, as their personal brands and the values associated with those brands develop from being connected merely with their club. By way of example, David Beckham s Football Academy in London (which has adidas and Volkswagen as its official partners) has been a well received venture, providing an engaging and educational environment for youngsters to develop football skills. The last decade has seen the emergence of players not only consulting and seeking the services of agents to negotiate playing contracts with clubs but also in relation to commercial opportunities off the pitch. It is standard procedure now for the top players to have agents acting on their behalf in both of these areas. David Beckham s agent for example is now in the enviable position of having secured approximately 30 million euros worth of rolling contracts for Beckham with adidas, Pepsi, Motorola, Volkswagen and Gillette. Following the announcement of his move to LA Galaxy, businesses across the globe are presently seeking to endorse his move to LA, with a bidding war expected for a piece of Brand Beckham. Virgin, and its founder, Richard Branson, announced last week that Beckham can fly free on Virgin Atlantic, and further associations with the company are anticipated. It is also not unusual in this day and age for players to be trained in how to present themselves to the media, and how successfully to uphold the personal brand which they are in the process of creating. Dedicated companies frequently advise players, via presentations and advice sessions given by fellow celebrities and sports people, as to the pitfalls to be avoided in the current media savvy world. Indeed, it will be crucial for players both in their normal lives and in their dealings with the media to

6 ensure they do not fall foul of the inevitable disgrace clauses that sponsors will have required in their agreements with the players. Let s take a look at some examples of the branding deals that some of the world s top players have made in the last few years. [ SWITCH TO SLIDESHOW OF IMAGES ] Slide 1 First off, David Beckham. Here we can see promotional material highlighting David s relationship with adidas. adidas is one of a plethora of personal deals which David has had over the years and the next slide shows us another example. Slide 2 This time it is the mobile phone company Motorola who are using Beckham s image to their benefit. Slide 3 Next up, is Wayne Rooney, this is a promotional material of Nike, one of Rooney s partners. Slide 4 Another Wayne Rooney example, this time it is Coke who are using Wayne s image for their benefit. Slide 5 Another leading striker, Thierry Henry being used by Nike, although Thierry has recently switched to one of Nike s main rivals, Reebok, in respect of his boot deal. Slide 6 This time England striker, Michael Owen promoting his association with the English supermarket chain Asda. It is important to note that whilst Michael is not shown to be wearing the England replica kit because Asda would need to enter into an arrangement with the English Football Association in order to be able to show Michael in such kit, he is seen to be wearing a very patriotic polo shirt, which, no doubt, Asda hope will convey a similar message to that of wearing the official England kit! Slide 7 This time it is Cristiano Ronaldo, seen by many as the world s best footballer at the moment, who is promoting his association with Suzuki cars. The words Wanna

7 Play are Suzuki s slogan for the particular car that is being promoted. Ronaldo s portfolio of personal deals is increasing in line with his footballing status and he is quickly becoming a global icon. Slide 8 This time it is various international footballers from different countries who are promoting adidas this is quite interesting because adidas has obviously decided that there is a real benefit in the collective strength of the individual brands of each player being brought together. Slide 9 This time it is Jose Mourinho, the Chelsea Manager, who is promoting his association with American Express. As we can see, it is not just footballers who are getting involved in exploiting their image. Football managers and coaches can also now consider themselves celebrities in some cases. THE INTER-RELATIONSHIP BETWEEN A CLUB S BRAND AND A PLAYER S PERSONAL BRAND: The nature of the relationship between the brand of a football club and the brand of one of its players can be a complex one. A player s personal brand, and the promotion of that brand, can have consequences that extend into the club s territory. Both a player and his club have to be particularly sensitive to and show consideration for the brands that each of them chooses to associate with. If this does not happen, there may be potential conflicts between the club and its player, particularly where a sponsor of one is a competitor of a sponsor of the other. These in turn may lead to potential damage being caused to either their own brands, or to the trust that is placed in them by their sponsors. Furthermore, a player who is devoting a lot of time and energy into the upkeep of personal brand associations can quickly find himself becoming tired. Players may be attending ceremonies, premières, talks, photo shoots, filming sessions, public relations events and other occasions pursuant to the terms of their personal endorsement deals. Clubs may be concerned as to whether that player s performance levels have been sacrificed by his activities off the pitch. It is for this reason that clubs often seek to limit and control the things that a player can do off the field. There is therefore a careful and crucial balance to be struck in all activities of these kinds. For the majority of players with English Premiership clubs, their relationship with the club is governed by a standard FA Premier League playing contract. One of the clauses that contract contains is a specific provision relevant to branding and player image rights issues. The clause provides that the player s image should not be used by the club or any of the club s partners to imply any personal brand or product endorsement by that player.

8 Commonly, the most accepted way of ensuring that a player s image is not used in this way is to utilise the images of three or more players where a particular player is to be featured and to ensure that no one player is generally featured more prominently than any of the other players. This has led to the development of the custom and accepted industry practice that is commonly referred to as the three player rule. As well as providing certain protections for the player, the standard English playing contract also provides certain protections for the club and its sponsors. An example of this is that whilst the club and its sponsors are prevented from suggesting a personal endorsement by the player, conversely, the player too is restricted, in that for his personal deals, he cannot appear in a club context. A club context is defined by the standard playing contract, and most commonly means an appearance where the player is readily identifiable, either by virtue of his clothing or by other factors, as a player for that club. It can also cover a situation where a player refers to the club or is clearly on club business, for example, during travel with team mates. The rights that he grants must be limited to being in a personal context. In addition, there are further restrictions in the standard contract which prevent the player entering into personal endorsement deals with competitors of the club s main partners. For certain players, the club and the player may consider that the position as set out in the standard English playing contract is not suitable for them. In these circumstances, the club and player may choose to enter into a separate image rights contract, which will vary the position under the standard English playing contract to reflect the respective bargaining positions of the parties. The club may want to acquire more rights than it would ordinarily be granted under the standard English playing contract, for example, it may want to be able to pass on the right to its sponsors to feature a player on his own rather than with two or more other players. That said, a player may want to enter an image rights contract because he considers that the obligations on him under the standard English playing contract are too restrictive he might want the ability to enter into a personal deal with one of the club s main sponsors. It is important also that the player considers the brands with which a club is associated, and ensures that he does not breach his contractual obligations to the club, particularly if he is sponsored by a competitor of one of the club s sponsors as with Coca-Cola and Pepsi who would naturally consider the other a competitor. It is easy to see how potential conflicts can arise, and why these must be very carefully considered by both player and club. There is, however, often harmony between the brands chosen by a player and his club; indeed the right link can have a very positive effect. For example, Manchester United and David Beckham both had a relationship in place with Pepsi at the same time, and this enabled Pepsi to feature David Beckham in an individual capacity whilst also in a club context. If Pepsi had only had an agreement in place with either Manchester United or Beckham, ordinarily, it would not have been able to do this. Therefore, it can be beneficial for all parties if the club and player can have a degree of synergy between their marketing programmes.

9 Clearly then, the player must think outside of the box, and, in establishing his brand, must carefully examine existing and potential marketing programmes of the club for whom he plays. The best way forward in this area is to ensure that all parties to these deals fully understand and are aware of the expectations of the other parties. Transparency is key, not just for the player and the club, but also for the receptive target audience who will be buying into these brands. A third element to consider where conflicts can arise can be where a player also represents his national team. Players can often find themselves being requested to dedicate significant amounts of time and energy to their national teams and to their marketing programmes, which, as a result, often necessitates that sensitive and careful negotiations be held between the club the players of the national side and the national football association. Again, there may also be marketing conflict. Earlier this year, Nike and Umbro (sponsors of the England national team) found themselves at loggerheads over Umbro s proposed use of certain England players in promotional pictures for the new England strip. Nike s concern stemmed from the fact that some of these players had separate personal endorsement arrangements with Nike, and therefore feared that the Umbro link may have a negative effect. In turn, Umbro s agreement with the FA specified that all England players must appear in groups of four or more, so as to prevent any images being taken or used in such a way that they could easily be edited to shots of individual players. Nike also alleged that Umbro planned to use the images in a way whereby it might not be clear who the player s boot sponsors were, and ultimately the English Football Association was forced to intervene and resolve the dispute. Both parties reached a compromise over the promotion for the launch of the new kit. Similar high profile cases have occurred in other European countries, and it is easy to understand why disputes have arisen in this highly competitive area, given the huge returns in question. One other option for clubs or national football associations and their players is the players pool arrangement. Under these types of arrangements, the players would pool together their collective rights through a business entity and enter into an agreement with their club, under which the club would be entitled to exploit those rights in using their images and having personal appearances in return for payment to the players pool entity. The players pool would then have a mechanism for the distribution of such monies amongst the various members of the pool. The English Football Association has certainly used a similar player s pool arrangement for its players, under which rights are granted to the Football Association for use by it and its corporate partners (as for many years did Manchester United). THE PROTECTION OF A BRAND: Personal brands, or a person s image rights or right of personality as they are sometimes known are not easily protected under English law. This is because, under English law, there is no codified law of privacy or image rights. The protection of

10 image rights is therefore very patchy and a player needs to choose from a mixture of statutory and common law causes of action in order to prevent the unauthorised use of his image. These could include the use of trade mark law, the laws of passing-off or copyright, data protection legislation, human rights legislation, laws of defamation, advertising industry regulation or laws designed to protect privacy. It is open to debate as to how the law in this area will develop. Commentators argue that the lack of a specific image right in law does not reflect today s society, in which there is a serious need for high earning sports persons and show business persons to be able to protect the rights which they legitimately hold. As footballer s personal brands continue to develop and increase in value, it is likely that the protection of those personal brands will be at the very forefront of this debate. An interesting case to note is the recently decided and well publicised English court case of Douglas v- Hello! magazine. Whilst the case did not sanction the creation of an image right under English law, it did suggest that the Courts are increasingly willing to look to protect the rights of individuals against the unauthorised use of their images. The case proceeded on the basis of an action for breach of confidence by OK! magazine, the contracted publishers of the images of the wedding of Michael Douglas and Catherine Zeta Jones, against Hello! magazine, which published unauthorised images of that wedding. The Douglases were successful in showing that Hello had infringed their rights. Outside of the UK, the protection afforded to image and personality rights differs significantly. It is a reasonable conclusion to come to to say that image rights are not protected explicitly in all forms in any part of the world. A recent Belgian case underlined the European Court s trepidation to permit players to readily assert their publicity or image rights. In the Unibet case, at the Court of Commerce in Liege, in November 2006, Zidane and various other players objected to Unibet using their images to present a match that could be gambled upon. The Court recognised a publicity right in the image, but did not however believe that such a right extended to mere informational usage of an image. If the use of the images was the goal in itself (for example to sell t-shirts reproducing those images), then that would have been capable of protection. The players claims were therefore dismissed. It was also held that the reproduction of their images for information purposes did not amount to an infringement according to trademark legislation. The extent and nature of protection and recourse for misuse ranges widely, from the statutory promises under the First Amendment in the United States, to the misuse of surnames under the Surnames Act in Denmark. Many European countries offer limited forms of protection under their Civil Codes, or, as is the case within the UK, via other forms of legal action. A BRAND NEW FUTURE? IMAGE RIGHTS AND THEIR DEVELOPMENT: On the other side of the world, David Beckham will soon take up his role with the Los Angeles football team, LA Galaxy. His contract is worth in the region of 128m. To a culture to which Brand Beckham is relatively unknown, it will be interesting to see what effect his arrival will have on the United States. It may be that Brand Beckham

11 will educate America s population to the glories of football (or soccer as they call it). Being a player for a club that is owned by a major media group however, as LA Galaxy is (Anschultz Media Group), certainly promises to guarantee Brand Beckham the media exposure that it has become used to in Europe. Time will tell as to how powerful a personal brand can truly be. In the opposite hemisphere, Asia is universally acknowledged by the global business community as being the new hallowed ground. Opportunities for investment and return are massive in this region, with its intense fascination with all things celebrity. China s presence on the international business stage is only just beginning, and with a population of 1.35 billion, coupled with a relatively unexploited branding audience, the possibilities are limitless. Couple this with a rapidly developing football industry, and it is easy to see why players and clubs alike are seeking to exploit opportunities in the region. Japan and China s international teams have really only started to perform on the global stage in the last ten years, and are becoming increasingly visible. Manchester United has already bought players from South Korea and China, and this trend looks set to continue amongst major clubs, as new talent is uncovered in the region. Personal brands are already huge business in Asia. Fans follow individuals as much as clubs and in such a landscape personal brands can only continue to flourish. The World Cup in 2010 will be held in South Africa, and promises to be a spectacular event, which will herald a real entrance onto the global football stage not just for that country in particular, but for the African continent as a whole. Clearly, there is a huge opportunity for both African and international players to become part of the process and to contribute to the growth of the sport within that continent. The last five years has seen increasing activity from the region in football activities, and this trend is clearly going to continue. As an example, my law firm is currently advising the Professional Soccer League in South Africa on the tendering of the broadcast rights for all of its games across all media as it strives to develop a rights framework similar to that used by advanced European leagues such as the FA Premier League in England. In a broader sense, the next decade is likely to see businesses involved in football becoming increasingly competitive. It is the reality of modern marketing that image sells, and footballers are becoming one of the most valuable commodities of all. A player s value as a celebrity can now be more powerful than his status as a footballer. However, it is always vital to remember that for the most part, the strength of a brand off the field of play is intrinsically linked to performance on the field. The most powerful brands are often those of the most successful players of the day. Football is becoming more of an international game than ever before. The English Premier League is particularly exemplative of this. The sale of the rights to broadcast its matches for the next 3 years, both domestically and internationally will realise over 3 billion. Also, eight of its clubs are presently under foreign ownership, and this number looks set to increase. As a result, the activities of those clubs become much more saleable in other countries, particularly the country of origin of the owner. Football s status as a world sport is accelerating rapidly.

12 The football industry has changed dramatically over the last ten years, and that dynamism and growth looks set to continue. With players increasingly seeking to exploit the celebrity status afforded to them by virtue of the game that they play, it will be interesting to see how clubs and businesses, as well as the law courts, respond. Whilst it is hard to predict whether image rights will develop as a form of rights capable of defined legal protection, what is certain is that this will be one game that will definitely play and play. Thank you. Maurice Watkins, 2007