By Caroline Nogueira Costa[36]
More than a decade of litigation was required to resolve the legal dispute between Brazilian soccer players and EA Sports FC, which is responsible for the FIFA video game franchise (now EA Sports FC). To understand what happened, it is necessary to clarify the role of each stakeholder in this case, which transformed the way image-rights contracts involving Brazilian athletes are negotiated.
FIFPro is a nonprofit organization that acquires image rights from affiliated players’ unions and negotiates their sale to video game companies such as EA Sports. The company claims to have negotiated with Fenapaf (Brazilian Federation of Football Athletes) the transfer of image rights for players who play in Brazil for use in FIFA and Pro Evolution Soccer (PES).
The entities had negotiated licensing rights to the athletes’ images for the game, but Brazilian courts deemed the agreement null and void, even though this practice is standard throughout Europe. The courts ruled that Fenapaf lacked authority to negotiate the images without each athlete’s individual consent. Thus, FIFPro, which acquired these rights to later pass them on to EA Sports, paid for something that the “seller” (Fenapaf) had no authority to sell. A flood of lawsuits filed by Brazilian soccer players against EA Sports FC, which used the images in its games, led the company to stop licensing any Brazilian athletes from FIFA 15 onward. The athletes won the lawsuits, with compensation totaling US$100 million.
Brazil still appears as a national team in FIFA games (now EA Sports FC), but the player roster has been replaced with fictional characters to avoid further losses. Thus, the team includes “Oswaldinato,” the unlicensed version of the athlete Gabriel Barbosa (Gabigol), a striker for one of Brazil’s most popular teams, Flamengo.
The entire controversy centers on a licensing structure that failed to account for Brazilian legislation.
Peculiarities of image rights in Brazil
In the professional football market, agreements such as those between FIFPro and EA Sports are considered valid and sufficient to authorize the display of athletes’ images in video games. FIFPro, after negotiating with the federation that represents Brazilian athletes, secured these rights with the company that produces the games. The model works in practically every part of the world. The error in the Brazilian case was not in the drafting of the contract but rather in the understanding of the Brazilian legal reality, which treats image rights in a peculiar way.
In the United States, image rights are protected under the so-called right of publicity and can be licensed, assigned, and, in some states, transferred after death. The legal nature of image rights varies by state and may take on characteristics of property rights.
The situation is somewhat different in Brazil, where, according to the Brazilian Federal Constitution and the Civil Code, image rights are classified as a personality right. This means that, under Brazilian law, image rights are associated with human rights, along with others such as honor and privacy. Therefore, image rights are considered non-transferable and inalienable, although they can be economically exploited through a civil contract. In Brazil, lifetime image rights assignment contracts are not accepted because image rights cannot be negotiated irreversibly and indefinitely; however, fixed-term agreements are legal and used in the sports world to separate the player’s salary from the exploitation of their image. Thus, in Brazilian football, the hiring of an athlete requires, at a minimum, two contracts: the employment contract, which formalizes their rights and duties as an employee of the team, and the image rights contract, which stipulates the rules and the payment due for its exploitation for a determined period.
Under the General Sports Law (Law No. xxx), up to fifty percent of the total monthly amounts received by an athlete while part of a football team may be linked to the image rights contract. For example, if a player’s hiring includes a total monthly payment of one million dollars, up to five hundred thousand dollars may be paid through the exploitation of the athlete’s image, with the remaining amount paid as labor compensation. The consequences of violating this framework are not theoretical.
Why the FIFPro License Had No Legal Value in Brazil
Understanding EA’s defeat in Brazilian courts requires recognizing that, under the Brazilian Federal Constitution and the Civil Code, image rights are personal, non-transferable, and inalienable. In this sense, the defeat of the American company demonstrates that a lack of knowledge about the peculiarities of Brazilian law led to a contract with someone who lacked the authority to assign the rights.
Although the signed contract followed the standardization accepted in most countries, it disregarded the constitutional precepts that govern personality rights, including athletes’ image rights.
Because image rights are a highly personal right, no third party can authorize their use on behalf of another. The club, the federation, the sports agent, no one can negotiate the image of a Brazilian athlete except the athlete himself. The authorization must come directly and personally from the athlete. This was the first error in the contract signed between FIFPro and Fenapaf, which lacked the legitimacy to collectively negotiate the players’ images.
Even when there is an unequivocal and direct manifestation from the athlete, the authorization must be specific, not generic. Thus, any general and comprehensive authorization clause must be express and specific — a generic assignment is not enforceable. According to Brazilian jurisprudence, image rights authorization contracts are interpreted restrictively. A general clause granting “all commercial uses” of an athlete’s image has no legal effect. The contract must enumerate each specifically authorized use, specifying the means, platform, territory, and term of validity. Authorization for use in print advertising does not extend to the digital environment. Authorization for use in a specific edition of a video game does not cover subsequent editions. Each category of use requires its own express authorization.
What American Lawyers Should Do
The golden rule that should guide contracts involving the assignment of image rights of Brazilian athletes is that they must be made through an autonomous civil instrument. Even if other legal agreements are in effect concurrently, the terms of the assignment must be detailed, specifying the means, platform, format, and territory where the right will be exploited. In addition, the athlete’s signature is required. Even if a federation, a club, or a sports agent is involved, the player’s clear and unequivocal consent is mandatory to guarantee the enforceability of the document. A global authorization is not a valid substitute.
Brazilian courts have rulings that prohibit representation in the negotiation of image rights. Thus, no other arrangement can replace the athlete’s consent. Even though image rights are exploited through a company created by the athlete for that purpose, which is possible and widely accepted to achieve tax benefits, the constitutive documents of such a legal entity need to be carefully analyzed to confirm that it has the necessary authority to transact.
If the American company has operations in Brazil, it can be sued in Brazilian courts, regardless of clauses specifying a different jurisdiction. Furthermore, in many cases, image rights are negotiated as general clauses in other contracts, such as employment or sponsorship contracts. This generic transfer of image rights, without a specific and detailed document, is not enforceable and can leave the contracting parties in a position of severe vulnerability.
Finally, in the case involving FIFPro and EA Sports, the losses far outweighed the value of prior advice. Specialized Brazilian legal counsel with expertise in national sports law would have prevented all the unpleasantness the companies in question experienced.
Conclusion
The losses incurred by the American companies in this case stemmed from the legal incompatibility between the regulations accepted in most sports markets and Brazilian law. The result was a significant financial loss, which could have been avoided by hiring specialized Brazilian legal counsel. In Brazil, where image rights are recognized as a personality right, the specificities inherent in these contracts become even more relevant in the sports environment.
