Oliver Trentham
What image rights actually cover
In the UK, there is no single “image right” sitting in a statute book. Instead, an athlete’s commercial image is protected by a patchwork of laws: passing off, trade mark registration, copyright, data protection, breach of confidence and, most importantly, contract. When you see a star on a billboard, that use is usually authorised by a carefully drafted endorsement deal. When it is not, the athlete’s lawyers reach for whichever piece of that patchwork fits best.
This matters because athletes often assume they own their face, name and voice outright. They do not, at least not in the way they own a house. What they can do is control commercial use through contracts and, where possible, registered trade marks. A photograph of a athlete taken at a match may be owned by the photographer or the club, not the athlete. A nickname may be registrable as a trade mark. A voice may be protected by passing off if it is distinctive enough. The practical starting point is always the contract.
Why athletes use separate companies
Many UK-based athletes set up a personal service company or a dedicated image rights company. The athlete grants that company the right to licence his or her name, likeness, signature and other indicia. The company then licenses those rights to sponsors, broadcasters and brands. The attraction is partly tax: corporation tax rates may be lower than the top rate of income tax, and the timing of payments can be managed. But HMRC is alert to arrangements that look like disguised salary.
If the company has no real business substance—no office, no staff, no genuine negotiation—HMRC may argue that the income is simply the athlete’s employment or trading income, taxable in full. For non-UK resident athletes, special rules apply to UK appearances, and withholding tax can bite on payments for UK performances. The lesson is not to avoid using a company, but to run it properly: keep minutes, charge a realistic licence fee, and take advice on transfer pricing and VAT. A poorly structured image rights company can create more problems than it solves.
Key terms in endorsement deals
Most endorsement disputes trace back to a clause that was vague or missing. Whether you are the athlete or the brand, the following terms deserve close attention:
- Grant of rights: exactly what is being licensed (name, image, voice, social media handles) and for what purposes.
- Exclusivity: which competing brands are off-limits, and for how long. Overly broad exclusivity can shrink an athlete’s earning power.
- Term and termination: start and end dates, renewal options, and rights to terminate for breach, insolvency or reputational damage.
- Deliverables: number of appearances, posts, shoots and interviews, with clear deadlines.
- Approval rights: how much say the athlete has over creative content, and how quickly approvals must be given.
- Morality clause: what conduct allows the brand to walk away, and whether the athlete can terminate if the brand’s own reputation suffers.
- Payment: flat fee, royalties, bonuses or a mix, plus payment timings and currency.
- Indemnities and liability: who covers legal costs if a third party sues over the campaign.
In UK practice, “morality” and “termination” clauses are often the most litigated. A brand that terminates too readily may face a claim for wrongful termination. An athlete who fails to make agreed appearances may lose the fee and face a counterclaim.
Disputes over unauthorised commercial use
Unauthorised use typically arises in three ways: a brand uses an athlete’s image without a licence; a former sponsor continues to use it after the deal ends; or a third party sells merchandise bearing a registered trade mark. The available claims include passing off (which requires goodwill, misrepresentation and damage), trade mark infringement, breach of contract, breach of confidence, and misuse of private information or data protection breaches under the UK GDPR.
Remedies can be powerful. An interim injunction may force a campaign to be pulled within days. Damages may be calculated as a reasonable licence fee—what the defendant would have paid had it negotiated properly. In egregious cases, the court can order an account of profits, stripping the defendant of gains made from the unauthorised use. Criminal trade mark offences also exist, though they are rarely used in sport unless counterfeiting is involved.
Resolving disputes without a courtroom
Most sports image disputes never reach a full trial. Mediation is common because it preserves commercial relationships. Arbitration is popular in international endorsement deals, and the Court of Arbitration for Sport handles certain regulatory and contractual matters. Expert determination is useful for valuation disputes, such as what a reasonable licence fee should have been. If court is unavoidable, remember the limitation periods: generally six years for contract and tort claims in England and Wales, though you should not wait that long to take advice.
For athletes, the practical steps are straightforward: register trade marks for your name and logo, insist on written licences, keep a clear record of approved uses, and monitor social media and retail channels. For brands, carry out due diligence on who actually owns the rights, avoid assuming that a club or agent can grant them, and build clear termination triggers into every deal. A little paperwork now prevents a very expensive argument later.
