Sports image rights in Slovenia.

• Author: Jagodic, Tone

1. Introduction

   Development of commercialization within sport is increasing intensively and Slovenia is not an exception. Athletes and sport organizations try to ensure financial support for their activities through marketing and it is very important to find real values which can be offered on the market. When examining different marketing tools which can secure financial funds from commercial entities it is of the outmost importance to find out the essential value of a sport subject which can be interesting for marketing purposes. Development of different modern electronic and other new media is a great challenge for sport as it is obvious that sport represents one of the most valuable matters in this field. The core value of the sport is image of athletes as individuals or teams and other sport subjects such as clubs, federations, organizers and other legal entities.

2. The nature and acknowledgement of sports image rights in Slovenia

   The meaning of sports image rights in Slovenian law is not defined at all. In common language we understand that sports image is a synonym for the name, the voice, the signature, the appearance, the trade name, the symbol and other characteristic attributes of a famous sports entity. As in many other countries the term is tightly associated with the right of privacy on one hand and the right of publicity on the other. It represents the outside representation of a sport entity created in the public opinion. It is worth mentioning that it is not only the personality (of a natural or a legal person) that can represent a sports image. An important sports competition as such also possesses a value of an image and an organizing committee is only the owner of the right to this competition and represents it towards other subjects. (1)

   In Slovenia, independent special merchandising right or image right does not exist and neither does a universal foundation of legal protection in case of unlawful commercial exploitation. The protection against unjustified commercial use of sports image is obtained as a protection of different legal situations, which are protected in the framework of different legal fields, especially in the framework of personality law, civil law, unfair competition, trademarks, copyright, corporate law and even criminal law.

3. Protection of the right of personality

   The right of privacy is basically protected in Article 8 of the European Convention of Human Rights. Everyone has the right to protect for his private and family life, his home and his correspondence. Interference into this right by a public authority is only allowed in most urgent situations such as in the interest of national security, public safety or economic well being of the country, prevention of disorder or crime, protection of health and morals and the rights of freedoms of others. The Slovenian Constitution similarly to the European Convention of Human Rights guarantees the protection of personality right among basic human rights (Article 35 of Constitution). The right of personality enjoys special attention and could be limited in very restricted cases when other constitutional rights have to be implemented.

   The right of privacy is a personal right and is regarded as an absolute right, with erga omnes effect that prevents all other subjects to infringe it. The right of personal image, like all other personal rights, belong to all citizens in the same way. This also applies to the world of sport. The fundamental principle is that athletes and other sports subjects should not be used for commercial exploitation without their consent.

   In general, the name, the firm, the name registered as a trademark and other designations of sport subjects are protected by the Slovenian law, namely, by the regulations under the Code of Obligations, the Trademark protection act, the Unfair competition Act, the Copyright Act, the Media Act, the Protecting Personal Data Act, the Basic Health Care Law and the Law of Commercial Companies. It is interesting that even the Slovenian Penal Code criminalizes the act of unjustified recording of pictures as a criminal offence.

   3.1. Civil Code

   In case of unjustified commercial use of personality as an infringement of his personality rights an athlete can choose different legal claims. The foundation for the claim is laid down as a legal request to cease infringement of personal rights. Article 134 of the Slovenian Code of Obligations (Slovenian Civil Code) is especially intended to protect personal rights as a request to cease infringement of personal rights and reads as follows.

   1 All persons shall have the right to request the court or any other relevant authority to order that action that infringes the inviolability of a human person, personal and family life or any other personal right be ceased, that such action be prevented or that the consequences of such action be eliminated.

   2 The court or other relevant authority may order that the infringer cease such action, with failure to do so resulting in the mandatory payment of a monetary sum to the person affected, levied in total or per time unit.

   It means that an athlete can demand that an infringer stop with the infringement, to prevent an infringement to arise, or to eliminate the consequence of the infringement with a public announcement of the verdict, the destruction of the object of infringement. Fault liability of the infringer is irrelevant. The court could decide that the infringer should stop with the infringement and punish him financially in case if he does not respect the court request. Beside these claims an athlete can also demand a financial compensation for the damage or put forward an action for unjust enrichment (acquisition).

   3.1.1. Unjust enrichment

   In case if a sport subject decides for action for unjust enrichment he has to prove certain conditions such as enrichment, detriment, casual relationship and absence of legal basis. Article 190 of the Slovenian Code of Obligations reads as follows:

   1 Any person that without a legal basis becomes enriched to the detriment of another shall be obliged to return that which was received, if possible, or to otherwise compensate for the value of the benefit achieved.

   2 The term enrichment also covers the acquisition of benefit through services.

   3 The obligation to return or compensate shall also arise if a person receives something in respect of a basis that is not realized or subsequently disappears.

   An infringer can benefit materially by unlawfully using the image right of an athlete in two ways. The benefit is the financial amount that an infringer did not pay to the athlete for the commercial use of his image (1) or in light of future benefits which an infringer could get by commercial exploitation of the image of the athlete such as improvement of its own image, products, services or brand in public sale increase of the products etc. (2). The detriment on the side of an athlete is indicated by prevention of the growth of his property as he has not received any payment for the exploitation of his image. Legal recognition of unjust enrichment is possible when an athlete is able to market his own personality. In contrast to that he can only claim compensation for immaterial damage. Another element on the side of an athlete is his willingness for marketing his image. The new theory does not request this condition for unjust enrichment but only the fact that an athlete's image has a certain material value, which could be converted into money. If an infringer interferes with the personality right of an athlete and uses his image in commercial sense, such an activity, in fact, proves the "indirect" recognition of his market value. Following this approach, the aim of the claim for unjust enrichment is to return material benefits which were gained by an infringer even if detriment of an athlete has not been proved. Such a standpoint which is widely acknowledged2 seems to be well founded, having in mind, that unjust enrichment should be a legal mechanism to establish equitable situation and it is not fair if an infringer keeps the benefits at an athlete's expense.

   The Slovenian legal system limits the claim that an athlete can get from an infringer by detriment which was suffered by an athlete and does not include any benefit which exceeds the detriment. Such a solution is questionable as the infringer is in the same position as if he acquired the approval from an athlete in time. It would also mean a kind of prevention from future infringements. (3)

   3.1.2. Claim for damages

   An athlete as the injured party can principally not only claim that actual damage sustained a reimbursement of the profits achieved by an infringer, but also the payment of an adequate profit, which was not gained. The amount of Reimbursement of Material Damage for infringement of his personal rights is legally covered by Article 168 of the Code of Obligations, which introduces ordinary damage and lost profit.

   Article 168

   1 The injured party shall have the right to the reimbursement of ordinary damage and the reimbursement of lost profit.

   2 The reimbursement of damage shall be levied according to the prices at the time the court ruling is issued, unless stipulated otherwise by law.

   3 In the estimation of lost profit, the profit that could justifiably have been expected given the normal course of events or given the special circumstances but could not be achieved owing to the injurer's action or omission, shall be taken into consideration.

   4 If an object was destroyed or damaged intentionally the court may levy compensation with regard to the value the object had for the injured party.

   Unauthorized exploitation of an athlete personality can harm material interests of an athlete in the shape of lost profit. Infringement of the image of an athlete can reduce or eliminate the willingness of other commercial companies to sign a contract with an athlete in the light of commercial exploitation...