Towards the end of 2020, footballers including Zlatan Ibrahimović and Gareth Bale expressed objections to the use of their names and “likenesses” in the FIFA video game series.
The FIFA franchise is EA Sports’ (EA) flagship football game and has sold over 280 million copies. 47 million people also watched FIFA’s eSports tournament, the eWorld Cup, in 2019. The game uses the names and likenesses (digital representations) of over 17,000 footballers to simulate matches involving the sport’s most famous names. However, in a series of tweets, Ibrahimović claimed that he has never knowingly given EA consent to use his “name and face” and pledged to investigate others “making profit” using his likeness.
What is the legal position?
EA derives the right to use footballers’ names and likenesses under licences with individual players, clubs, leagues and collective bodies. This includes FIFPro, the body specifically targeted by Ibrahimović.
FIFPro is the global representative body for professional footballers and consists of player unions worldwide, including those in England and Spain. These unions give FIFPro a mandate to sell name and likeness rights on behalf of their players, under which FIFPro makes these rights available to EA for its FIFA franchise. FIFPro does not directly reimburse players for the money which it generates from this licence. Instead, FIFPro gives money to its member unions, who determine how to use it.
Ibrahimović claims that he is not knowingly a member of FIFPro, meaning the body has no right to license his likeness to EA. The Italian Footballers’ Association (representing players in Italy, where Ibrahimović’s AC Milan side compete) is a FIFPro member union – however, if the Swede’s claim is true, this would not necessarily preclude EA from using certain of his image rights.
This is because the licence granted by FIFPro sits alongside those granted by clubs, leagues and players themselves. As such, even if a player is not affiliated with FIFPro through their union, EA may receive the right to use their likeness through an agreement with the player’s team or competition. Ibrahimović’s AC Milan side last year announced EA as its “Official Video Games Partner”, enabling the developer to use the club’s players in all FIFA game modes (including eSports).
Image rights in football video games
In addition to players’ names and likenesses, EA’s FIFA franchise relies upon wider image rights of certain players. In English law, image rights are not a dedicated intellectual property right. They are instead a collection of separate rights, including intellectual property rights, rights to privacy and rights granted under contract relating to a player. EA pays certain stakeholders directly for the rights to use these image rights.
Collective image rights are the right for a club to sell their players’ image rights collectively for marketing purposes (as in AC Milan’s partnership with EA). In a standard Premier League contract, for example, players grant their club a right to use their image to promote the club’s or the league’s licensed products in a team context (i.e. alongside a minimum number of the club’s other players).
In contrast, players’ individual image rights – the rights of an individual player, used to market a product on its own – remain the property of the player. Players may personally (or through agencies) license these rights to EA, for example, to become the cover star of the FIFA games.
In the context of football video games, the trade in lucrative image rights has generally focussed on team and player licensing deals for real-life imagery, such as to promote the game or feature on its cover. These rights have tended to be seen as distinct from the digital likeness of a player because they are rooted in genuine imagery of particular players and used to market the game, rather than the digital (and ultimately artificial) recreations of a much larger cohort of players used to create realistic gameplay.
What are the potential implications?
Ibrahimović’s tweet may indicate a growing awareness of the value of a player’s digital likeness. This may be attributed in part to the improvement in video game graphics which permit a digital representation of a player to appear almost photo-realistic – a blurring of the lines between digital likenesses and traditional image rights. It may also indicate a growing sense that an individual’s likeness should not be the subject of a sale of collective rights.
It is not inconceivable that high-profile players may seek to break away from collectively sold rights to likenesses to negotiate lucrative individual contracts for video game developers to recreate their digital self (as is currently the case for their conventional individual image rights).
With the global value of the video game industry forecast to hit USD 159 billion in 2020, and the associated eSports market soon expected to surpass USD 1 billion in value, video game developers may have to choose between spending greater sums to include the names and likenesses of real footballers, or opting for generic names and faces and hoping that it is the quality of the gameplay that has sustained the growth in the industry.
