All the questions
Marketing of sports events
i Types of rights and ownership of rights
The main sports-related rights exploited in Spain are the image rights of athletes, the rights to broadcast sports competitions and the intellectual property (IP) rights held by clubs and organisers.
The right to self-image, guaranteed by Article 18 of the Spanish Constitution and developed by Organic Law 1/1982, of May 5, on Civil Protection of the Right to Honour, Private and Family Life and in its own image (Organic Law 1/1982), allows athletes (those who practice individual sports and those who render their sports services in collective sports) to exploit their image and transfer it to third parties.
Each sports competition operates its own broadcast rights. The ownership of the sports broadcasting rights will ultimately depend on the competition involved. However, as a general rule, these broadcasting rights belong to the clubs participating in the sports competition or to the organizer of the competition, or to both. In this regard, the Government has promulgated Royal Decree-Law 5/2015, of April 30, on urgent measures relating to the commercialization of the rights of exploitation of the audiovisual content of professional football competitions, by virtue of which it has established rules for the exploitation of the broadcasting rights of the national professional football leagues (first and second divisions), the Spanish Cup, the Spanish Super Cup and other competitions organized by the Royal Spanish Football Federation ( RFEF), including the distribution of income between clubs and SADs (depending on certain legal criteria).
Clubs and organizers may also own intellectual property rights which are exploited in the merchandising activity of their marks and symbols, either personally or through licensing to third parties, on the basis of the private law rules.
ii Protection of rights
The protection and enforcement of sports-related rights depends on the type of right concerned in each specific case.
With regard to the image rights of athletes, their defense can be ensured before the ordinary courts by a procedure based on the principles of preference and preliminary hearings or, if necessary, by a relevant appeal before the Constitutional Court. In particular, the right to self-image is covered by the civil protection procedure established by Organic Law 1/1982, which provides legal guarantees against the illegal exploitation of the right to one’s own image. Spanish case law has made important contributions to the development of this law.
Intellectual property rights are protected by the specific mechanisms provided for in Law 17/2001, of December 7, on Trademarks, which include, among others, the cessation of actions, the removal of effects and the compensation of damages in the event infringement of any intellectual property right.
The tools and mechanisms provided for in Law 34/1988, of November 11, on General Publicity and in Law 3/1991, of January 10, on Unfair Competition must also be taken into account with regard to the protection of this kind of right.
iii Contractual provisions for the exploitation of rights
In accordance with Spanish law, sponsorship, merchandising and image rights contracts are not expressly governed by any specific regulations; thus, the parties can freely determine their content with the only limitations arising from the law.
Nevertheless, a certain number of provisions generally appear in these contracts, such as the granting of licenses of trademarks and other distinctive signs, non-competition and exclusivity clauses, first refusal clauses and provisions relating to the transfer intellectual property rights. In this regard, Spanish regulations prohibit the sponsorship of sporting events by brands of alcoholic beverages and tobacco. The exact definition of the scope of exploitation and transfer of these rights is also of the utmost importance, as well as the self-reservation of rights, where applicable.
The sale of broadcasting rights may be carried out on an exclusive or non-exclusive basis in accordance with the legal provisions in force. Furthermore, in accordance with Law 13/2022, of July 7, on General Audiovisual Communication, the exclusive assignment of television broadcasting rights of sports competitions cannot restrict the rights of citizens to information. To this end, broadcasters who hold the exclusive rights to an event of “general interest to society” must authorize other broadcasters to broadcast “short news summaries” (of less than 90 seconds duration) to use only in general information programs in which will appear the logo or mark of the organizer and the mark of the main sponsor of the event.