By Robert E. Freeman
Your face is your fortune. That expression formerly was reserved for photogenic movie stars and models, but these days, image rights means a lot more than just a pretty face. Even tough looking, slightly balding soccer players can lay claim to image rights that are worth a litigation fight.
One particular fight features Wayne Rooney, one of England’s best-known soccer stars. The now 26-year-old began playing for Manchester United, one of the top soccer teams in the world, in 2004. In his debut, Rooney accomplished a “hat trick”—a remarkable three goals in one game. Rooney helped Manchester United win three consecutive Premier League titles between 2006 and 2009. He was named the Professional Footballers’ Associate Player of the Year in 2010, and became English football’s highest earner in 2011.
During Rooney’s rise to soccer prominence, his image and marketing rights have been managed by Proactive Sports Management Limited. In 2003, when he was 17, Rooney entered into an eight-year image rights representation agreement with Proactive, through Rooney’s company, Stoneygate, which had been set up by Rooney and his family and assigned Rooney’s image rights. Among other things, Stoneygate appointed Proactive to act as its agent in negotiating endorsement contracts to exploit Rooney’s image rights (as well as those of his wife, Coleen). But in 2008, Rooney left Proactive and signed on with another rights management company. Proactive brought suit, seeking commissions on deals that it alleged it had arranged before Rooney departed. Specifically, Proactive claimed 20 percent of Rooney’s endorsement earnings.
In 2010, Rooney prevailed in the Manchester High Court, but Proactive won the right to appeal that ruling. On December 1, 2011, the British Court of Appeal upheld the ruling in favor of Rooney, finding that the lower court was not clearly wrong in concluding that the agreement signed between Stoneygate and Proactive constituted a restraint of trade because it hindered Rooney’s ability and freedom to exploit his earning potential over a substantial period of time. Among other things, the court looked to the fact that the agreement was not negotiated between equals, because of Rooney’s age at the time, his lack of sophistication and that of his parents, and the fact that Rooney was not represented by legal counsel in the transaction. Thus, Proactive was not entitled to £4.3 million in commission payments it claimed had accrued under the agreement.
The court did, however, reverse the Manchester High Court’s decision regarding Rooney’s wife. The appeals court determined that she owed Proactive commissions in excess of £90,000, with the exact amount to be determined at a later hearing. Despite that, at least by all published accounts, the pair appears happy with the ruling.
Freeman is a partner and a member of the Sports Law Group and Technology, Media & Communications Group at Proskauer Rose.
