YEAR 2018 N.º 1

ISSN 2182-9845


Francesco Rende

Contractual freedom and protection of the athlete's private life

When the well-known tennis player Sharapova announced that she had been found positive in a doping control, most of the sponsors immediately asked and obtained the termination of the contract. The tennis player's image had lost appeal to the public and the sponsors were no longer interested in her, economically.
According to studies conducted by Katrien Lefever for New Media and Sport magazine, the turnover of the sponsors of Tiger Woods fell by 12 billion dollars after the wife of the well-known golfer discovered the betrayal and asked for the divorce.
In Italy, the jurisprudence recently ruled on the request for termination of the sponsorship contract against a well-known soccer player after the news that the testimonial had attended a party with transsexual prostitutes. According to the sponsor, such an episode had irreparably compromised the public image of the player so that there was no longer any economic interest.
The preceding examples highlight the growing attention of sponsors to all aspects of athletes' lives, including respect for ethical and moral values.
Sometimes, as in Sharapova’s case, respect for ethical values ​​in the exercise of sports is emphasized; at other times, as in Tiger Wood’s or Ronaldo’s case, attention is drawn to the behavior that testimonials have in their private life.
As part of this work, we intend to verify whether and to what extent the sponsor can reserve control over the athlete's behavior.
To reconstruct exactly the issues just outlined, it is necessary to preliminarily define the subject of the sponsorship agreement.
Sponsorship is part of the broader phenomenon of the so-called sports marketing. The athlete grants a third party, for a fee, the opportunity to economically exploit their image.
Indeed, the negotiation places the image of the sponsee in a one-to-one relationship with the sponsor, creating a phenomenon of mutual interdependence.
By linking their distinctive signs to the image of an athlete, the sponsor tends to identify the success of their brand with that of the testimonial.
In sociology the phenomenon is known as meaning transference, because it involves (in the consumer's perception) the translation of the values ​​embodied by the celebrity onto the sponsored product. Indeed, it has been observed that the sponsorship contract determines a real exchange of notoriety.
Hence the interest of the sponsor not only for the competitive events but also for those of a personal nature of the sponsored, because the greater popularity of the testimonial will correspond to the greater commercial success of the sponsor. At the same time, the deterioration of the image of the testimonial can have repercussions on the sponsored product to the point of arousing the interest of the sponsor in ending the contractual relationship.
Some authors noted, when identifying the content of the obligations assumed by the testimonial, that the interest of the lender does not end in that their brand circulates in the market transported by the reputation of the sponsee. The sponsorship would rather aim at transferring the positive opinion that the public associates with the image of the testimonial to its business.
Ultimately, the interest of the sponsor does not concern the image itself of the sponsee, but the positive characterization that connotes it. The image is therefore highlighted in a dynamic perspective, and its suitability to meet the lender's needs ultimately depends on the interaction of all the factors that determine the success of the testimonial with the sponsor's target audience.
It has therefore been argued that the testimonial's performance does not end with the consent to have one's image matched with the lender's brand; the sponsee would rather be required to actively work to preserve his popularity with the public.
In this perspective, however, we end up assigning to the lender a power of control, at least indirectly, over all the elements that may affect the success of the testimonial: from those relating to competitive activity to the most intimate and inviolable aspects of his/her personality.
Such a conclusion, certainly unacceptable if affirmed in absolute terms, requires the interpreter to make a reconstructive effort aimed at identifying exactly the appropriate equilibrium point to ensure the fair balance of the opposing interests of sponsor and sponsee.
In Italy, the Supreme Court stated that the testimonial does not undertake any obligation either to achieve certain sporting results or to make the lender achieve a certain advertising return.
Rather, the Supreme Court specifies that the object of the sponsorship consists solely in allowing the dissemination and disclosure of the name and image of the sponsee together with the sponsor's brand.
According to the Supreme Court, then, the sponsor's image has not a positive response from the public; the sentence expressly states that, in advertising reports "it does not matter so much that one speaks well, but that one speaks of who wants to be known and remembered".
The Supreme Court essentially affirms that the purpose of the sponsorship contract can well be achieved even in the presence of events which, while jeopardizing the popularity of the testimonial, leave it unchanged or even increase its notoriety. At least when these events have led to greater media exposure of the testimonial-sponsor relationship of which the latter may have benefited.
The issue takes on different connotations when the contract contains the so-called moral clauses, eg those agreements that require the testimonial to act with correctness and loyalty and in compliance with high ethical values, without causing any damage to their image and reputation. Therefore, clauses containing a long list of prohibited behaviors are frequently included in sponsorship contracts: from taking drugs, to the commission of crimes, to behaviors that can create embarrassment or, in any case, suitable to arouse a sense of ridicule or even that they can cause public scandal, or that can lead the public to contempt or scorn.
Sometimes, then, the sponsor may have an interest in having the testimonial behave (or refrain from) a specific behavior to win the sympathy of the reference public.
Commonly, the violation of these clauses is accompanied by the provision of the sponsor's right to end the contract and to obtain compensation for damages.
Through these agreements, therefore, the fate of the contract is linked not only to the sporting successes of the testimonial, but to his/her life choices, in which the athlete's personality is expressed.
It is therefore understood the need to carefully examine such agreements as they could lead to an intolerable compromise of the athlete's personal rights.
To this end, it seems appropriate to examine the role of moral clauses within the sponsorship contract.
Such clauses assume the main function of extending the content of the contract, of identifying ancillary obligations that weigh on the testimonial and that are added to the main service.
Alongside the exploitation of the image of the sponsee, in fact, there is the obligation to refrain from conduct that could compromise the athlete's popularity and, therefore, undermine the success of the commercial operation.
Regarding the validity of such clauses, it seems appropriate to make a first distinction.
The athlete's image can be compromised by morally questionable conduct concerning both sporting activity (eg doping) and personal life (eg adultery).
In general, there is substantial agreement in doctrine and jurisprudence in affirming the full validity of the moral clauses aimed at ending the contract in the event of unsportsmanlike conduct likely to decrease the popularity of the testimonial. Indeed, these are behaviors already prohibited by the regulations of the sports federation and which, through the clause, are also relevant in relation to the sponsorship contract.
In this case, the clause does not place new constraints on the athlete's life choices but merely translates a ban that already exists in the regulation of a particular sport to the contractual level.
Part of the doctrine believes that in the hypothesis under consideration the moral clause would even be superfluous.
Indeed, it is known that the contractual content is supplemented by general clauses such as good faith and fairness that the parties are committed to observe during the execution of the contract. These clauses are qualified as source of primary obligations to protect the interest of the counterpart.
That is, the sponsee would be required to perform his own service in such a way as to ensure the full satisfaction of the counterpart's interest and this would entail the obligation to refrain from any conduct that could jeopardize the success of the commercial operation.
In this perspective, any sanctioned conduct on a sporting level, as it is likely to deprive the exploitation of the athlete's image of utility, would conflict with good faith and would constitute a violation of the sponsorship agreement.
A very different issue is the application of moral clauses to conduct concerning the private sphere of the athlete.
In this case, with the inclusion of the clause, the testimonial assumes obligations concerning their personal sphere and, therefore, personal rights.
No doubt can be nourished, for example, on the nullity of those clauses that impose certain life choices on the testimonial, such as the obligation to embrace a certain political idea or sexual orientation.
More delicate is the question concerning morally reprehensible conduct.
As previously reported, in Italy the sentence of the Court of Milan concerning Ronaldo’s case had a considerable impact: the sponsor asked for the ending of the contract after the news that the testimonial had attended a party with transsexual prostitutes.
The Court of Milan rejected the sponsor's request and sentenced him to pay the agreed fee to the testimonial.
According to the Court, in the context of a sports sponsorship contract, the moral clause can only concern the conduct most closely related to the professional profile and not to the personal one. The sponsor chooses the testimonial based on his/her sporting skills and not based on the athlete's private life choices.
In this perspective, therefore, the moral clause could lead to ending the contract only when the opposition to ethical principles concerns conduct relevant to the competitive activity: the use of doping substances; grossly unsportsmanlike conduct, etc.
The Court of Milan therefore solves the question in terms of the interpretation of the contract. The sentence, however, is a notable observation.
Indeed, the judge specifies that if the moral clause also refers to the conduct of the testimonial concerning private life, it would certainly be null and void because it infringes fundamental rights.
This clause, in fact, would be detrimental to the athlete's right to self-determination. This is a particularly important statement that has not failed to arouse the interest of the doctrine.
Some authors have warmly welcomed the ruling of the Court of Milan, believing that the Italian legal system ensures a protection of considerable intensity to the fundamental rights, that does not tolerate any form of influence, not even indirect. On the other hand, by tying the fate of the contract to the athlete's personal choices, one inevitably ends up exercising control over such choices, preventing the testimonial from fully expressing his/her personality.
According to a minority orientation, however, that clause would not compress the fundamental freedoms of the testimonial who would be free to disregard the agreed lines of conduct while being aware of the repercussions of this decision on the fate of the contract.
This criticism does not convince because it confuses the factual possibility of disregarding a legally assumed obligation with the non-existence of the obligation itself.
The question is not whether the sponsorship contract effectively prevents the athlete from making the decisions of a private nature that he/she deems most convenient for his/her personality; neither is it whether the legislator or the private autonomy are immune to the possibility of a transgression (which of course follows the sanctioning reaction of the legal system).
Rather, it is a matter of highlighting that, by assuming the commitment to hold or not hold certain behaviors, the testimonial has, on a legal level, inalienable profiles of his/her personality. In other words, life choices are placed at the center of the obligatory relationship that cannot in any way constitute the object of legal constraints.
The athlete's personality certainly cannot be considered a malleable material due to the needs of the company that sponsors it.
In our opinion, therefore, there can be no doubt of the radical nullity of the clause with which the athlete undertakes, to safeguard the sponsor's economic interest, certain life choices related to unavailable rights.
A radically different question, however, is whether the sponsor can invoke some form of protection in the face of behavior by the testimonial that is prejudicial to the lender.
Supporting the nullity of the clause by which the sponsee alienates their unavailable rights does not mean, in fact, excluding that the testimonial is required to safeguard the interest of the other party.
Even the exercise of an inalienable right can, indeed, cause prejudice to third parties with the consequent arising of liability. Just think of the exercise of freedom of expression of thought. But the same can be said in relation to life choices that concern the most intimate aspects of the individual's personality.
The ending of the sponsorship contract creates a link between the personalities of the testimonial and that of the sponsor, so that the harmful conduct of the former can affect the latter. The reference is not, however, to the economic prejudices that the lender can suffer as result of the personal choices of the testimonial; in this case, indeed, the opposing interests would be of different rank with evident prevalence of the freedom to express one's personality over the safeguarding of the sponsor's economic sphere.
The question should, on the other hand, be solved differently when the conduct of the sponsee is likely to cause prejudice to an inviolable right of the sponsor (such as honor, reputation, etc.).
In this case, the right of the sponsor to receive protection cannot be excluded a priori, at least in terms of compensation.
Consider, for example, the hypothesis in which the sponsor is institutionally the bearer of values ​​that the testimonial has violated with his/her own conduct.
We are faced with those hypotheses that authoritative doctrine defines as “conflict of the orders”, where the axiological order of prevalence between the opposing subjective positions cannot be determined a priori, but a posteriori and taking into account the peculiarities of the concrete case.
Therefore, it cannot be ruled out that, in the hypothesis under examination, the sponsor may legitimately invoke protection against the athlete.

Francesco Rende is an Associate Professor of Private Law in the Department of Jurisprudence at the University of Messina, Italy