Unlike was the case a few decades ago, sports has today become a multi-million dollar industry. It is this exponential growth in the 'business of sports' that has informed the growing interest in sports law. The legal issues that, in one way or another, relate to sports typically range from intellectual property to torts to contracts and many others. In seeking to explore the various legal issues in the sports industry, this text concerns itself with the legal environment of a typical sports organization. The organization of choice for purposes of this discussion is Octagon Sports/Octagon Football.
A sports marketing agency with global presence, Octagon could easily be one of the largest sponsorship consulting outfits in the world. Typically, sports marketing firms like Octagon Football concern themselves with not only the creation but also the maximization of commercial opportunities for clients. In addition to working with scores of athletes, Octagon also works with hundreds of corporations, most of them blue-chip entities. One of the key entities Octagon has worked with in the past, according to the organization's president is FIFA (Robinson, 2008). Octagon also manages numerous events annually. One of the key goals of the athlete marketing department of Octagon is the creation and maximization of each of its client's off-field corporate engagements or relationships. In the final analysis, therefore, Octagon Football is of great relevance to players seeking to have their earning potential further enhanced throughout their playing careers.
Being one of the most visible and successful athlete representation entities, Octagon Football, like any other sporting outfit of its kind, is exposed to a variety of legal issues and concerns that have an effect on both its operational and managerial aspects. In addition to being actively involved in contract negotiations, Octagon Football also engages numerous other stakeholders in the industry as it seeks to create unique athlete brands. Ideally, an organization like Octagon Football ought to be aware of the various competitive challenges it could face and how to deal with them. Amongst other things, it must be aware that capitalizing on the success of other players in the sports entertainment realm could result in violations of common law, in which case it might find itself being accused of 'free-riding' or 'passing off.' Similarly, the company must protect itself from the unfair moves and practices of other players in the sports entertainment arena.
Sports Management, Promotion and Marketing: Legal Issues and Concepts
According to Jones (2011), in the past, there is no single area of law that comprised of the United States sports law. As the author further points out, traditionally, U.S. sports law has "comprised the more traditional areas of labor law, antitrust, tort law, contracts law, and others" (Jones 2011). Therefore, in the opinion of the author, the development of sports law as a unique legal concept has given rise to enhanced focus on the special components of sports law. Based on the nature of my sports organization of choice, I will in this text highlight contracts, intellectual property rights, and publicity rights and privacy rights.
The nature of sports and sporting events management dictates that emphasis be placed on the various provisions of contract law, especially given that negotiations are, in this case, commonplace. From the onset, it is important to note that the various provisions governing the entry into, and enforcement of contracts are found in common law, the Uniform Commercial Code, and both federal and state laws. As numerous legal texts point out, there are various elements that ought to be present for a contract to be viewed as being valid. These include; an offer, acceptance of the said offer, obligation, and consideration. In any contract scenario, whether in sporting or elsewhere, an individual (to whom an offer is made) has several courses of action: he or she could reject, deny, or make what is referred to as a counter offer. The offerer (the individual making the offer) also has the ability to revoke the offer. The offer could also be voided by the incapacitation or death of a party to the said contract. Like is the case in most undertakings of a commercial nature, contracts in sporting engagements are binding. This is particularly the case once the elements I have highlighted above are present and once the parties to the offer agree on the terms as set therein. In that regard, therefore, if either party vacates or neglects its duties and obligations as per the terms of the contract, the offended party has legal backing, in which case the remedies offered could include monetary damages. Most contracts according to Jones (2011) also include what the author refers to as an arbitration clause. Such a clause according to the author "requires the contracting parties to resolve disputes either by mediation or arbitration" (Jones, 2011). Some of the most critical considerations as far as contracts in the Octagon Football's legal environment are concerned will be addressed in the sections below. They include athlete personal service agreements, licensing agreements, and publicity releases.
To begin with, when it comes to athlete personal service agreements, it is important to note that sporting organizations ought to take into consideration the role of various athletic governing bodies prior to commencing contractual engagements. It is only in those circumstances when it if fair to do so should negotiations on this front proceed. As much as it could be a prerequisite, ensuring that all the athletes actively engaged with an entity like Octagon Football are placed under contract could be an excellent strategic move. This is particularly the case given that such a move makes it extremely difficult for competitors in the same business to access such stars, and their services. For an entity like Octagon that lists maximization of client off-field relationships (particularly corporate) as one of its key goals, the relevance of negotiating for the inclusion of merchandising rights in the athlete personal service agreement cannot be overstated. This is more so the case given that as Blackshaw (2010) points out, "sports merchandising is an integral part of the sports marketing mix." Octagon Football might also, from time to time, find itself negotiating certain agreements on behalf of its clients. Negotiations could in such a case fall under personal service agreements. Athletes must commit to a publicity release condition as a personal service agreement condition. This is meant to ensure that transfer of their property rights most particularly in their likenesses, images, and personalities has legal backing. This is particularly important for organizations like Octagon Football that engage in sports marketing. As I have already pointed out elsewhere in this text, Octagon Sports is a leader when it comes to the maximization of the corporate relationships (off-field) of clients. Octagon Football would need publicity releases for not only the telecast but also the promotion of clients. Athletes affiliated to professional teams could in some cases be bound by their club's bylaws and employment contracts. This is something organizations like Octagon Football ought to be aware of. In such a case, publicity releases could be arranged with the relevant parties.
Licensing agreements, on the other hand, allow for the association between the service marks and trademarks goodwill of the licensor with the corporate service or product of the licensee. As Moorman and Hambrick (2009) observe, the sports licensing industry is huge. Apart from the licensing provisions typically included in sponsorship agreements, licensing agreements could also be granted to a franchisee (by a franchisor) for the utilization of intellectual copyrights and trade secrets. Nonexclusive licenses could also be issued to broadcasters (by the owner of an event) to not only record, but also engage in the distribution of telecasts. In most cases, it is a sporting entity's negotiation skills that determine the outcome of the various agreements of a contractual nature.
Intellectual Property Rights
Essentially, the overriding purpose of intellectual property rights is the promotion of innovation and creativity. Because of its nature and activities, modern sports marketing cannot thrive outside the legal framework governing intellectual property rights. The power to enact copyright, Patent, and trademark laws in the U.S. is vested on Congress. It should be noted that as long as they do not seek to make use of intellectual property laws in the creation, exercise or sustenance of what is referred to as market power, companies like Octagon Football can greatly benefit from intellectual property rights and the exclusivity arrangements they bring fourth. Otherwise, they risk antitrust litigation. Effectively, given that intellectual property rights seek to prevent other entities from making use of the protected works of other parties, sports organizations such as Octagon Football are in this case provided with yet another avenue to generate profits -- i.e. By way of licensing such rights to other entities through merchandising, broadcasting, or even franchise arrangements. Intellectual property rights could be discussed in the context of trade names, trade secrets, and service marks and trademarks.
As it has already been pointed out elsewhere in this text, service marks…