FUFA vs FOOTBALL 256
IS GOOD FOR UGANDA’S SPORTS LAW
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Article by Ivan Ojakol, Of Counsel, International Trade
Football 256 purported to carry out an
awards ceremony of some of the most
excellent in the recently concluded
2020-2021 StarTimes Uganda Premier
League via their social media channels
dubbed “Football256 Best of the
Season Awards”.
The Federation of Uganda Football
Associations (FUFA) came out guns
blazing threatening legal action against
Football 256, the football clubs, club
officials, and players.
The contents of the demand letter from
FUFA are particularly important; ‘the
StarTimes Uganda Premier League and
other auxiliary and incidental products
are products and legal property of the
league’, the awards ceremony had
already been assigned to a third party
on exclusive terms.
This dispute though seemingly one that
can be easily glossed over by Ugandan
sports lovers is very important for the
development of sports in this country.
It poses very crucial sports law
questions that should be
comprehensively discussed.
Due to the public interest that is
involved in big sports events, many
Ugandans have questioned FUFA’s
actions as premised on bad faith.
Yet as we all know, sports is now
immense business and what this means
is that it has shifted from on-field
competition to off-field corporate
rivalry.
A paradox is then created; sponsorship,
a major revenue stream comes on
board that aims at exploiting the
exclusivities that come with sports
alongside the commercial interests of
non-sponsors perhaps based on
seemingly legitimate rights like freedom
of expression.
This is where we find ourselves with
FUFA in one corner and Football 256 in
another. Let’s try and distill some of the
legalese involved here.
The commercialization of sports has
come with all these sponsorships and
endorsements couched in often
exclusive terms by and large cutting out
non-sponsors from free-riding and
gaining off the brand exposure that
would otherwise only be available to
the official sponsor. What the official
sponsor of a football league in a
particular country as is the instant case
is concerned with usually is that
through their sponsorship, their name
and brand become synonymous with
football in that country a ’la the
‘Barclays English Premier League’.
While the law grants Charities and Religious institutions several privileges as they go about their mandate of doing good, it also places certain obligations inorder for them to continue enjoying those privileges. In order to ensure that an organisation continues being compliant, robust systems need to be put in place to ensure continuous risk assessment of all financial transactions and compliance.
With these exclusive sponsorship
agreements comes the exploitation of
the Intellectual Property concerning
sports events and their associated
products as a preserve of the sponsor.
The merchandise, logos, jersey designs,
and other promotional material will be
covered as the property of the sponsor.
Uganda has an Intellectual Property
legal regime that comprises among
others the Copyright and Neighbouring
Rights Act, 2006 and the Trademarks
Act, 2010.
I have not had the opportunity to look
at the sponsorship agreement between
FUFA and the third party that they
allege was contracted to conduct the
awards ceremony, but they claim it is
exclusive.
It must also be the case that even the
exploitation of the Intellectual Property
concerned is exclusive to whoever is
the rights-holder in the agreement
between FUFA and that third party.
There is an interesting aspect to all this
called ‘Ambush Marketing’. In a nutshell,
this is the association of an enterprise’s
brand or products with a major event in
the absence of any sponsorship,
licensing, or legal rights as the official
sponsor.
The practice is deemed such a threat to
global sports because of its ability to
dilute sponsorships that the
International Olympic Committee
requires local organizers of the
Olympics to enact specific legislation to
address the perceived vice as a
pre-condition to hosting the Olympics.
One example is the London Olympic
Games and Paralympics Games Act of
2006.
Sports law scholars are still divided on
this subject with some arguing that it is
only controversial but not illegal
especially if the ambush marketer does
not use the sponsor’s Intellectual
Property. To explain this, a French
Court has in the past held that a sports
event belongs to everyone and that
sponsorship should not deprive another
economic player from basing its
publicity on an event.
There is a strong argument for Football
256 being an ambush marketer
however noble its intentions might
be-there is massive brand exposure that
they have gained from conducting their
awards. I have seen some big football
clubs like KCCA recognize their awards.
If FUFA had not come out to warn them
with the said demand letter, we would
all have thought that they are
connected to the Uganda Premier
League in one way or the other as an
unofficial sponsor. I have since followed
them on Twitter as many others.
Uganda like many other jurisdictions
does not have a bespoke law to counter
ambush marketing. In their letter, FUFA
mentioned ‘passing off’ as a possible
cause of action which I believe is
premised on infringement of Intellectual
Property assets, there could also be
another one on ‘misrepresentation’.
I will leave that to FUFA’s able lawyers.
Beyond this ambush marketing
discussion is another very important
one on ‘Image Rights’. Again, I have not
seen the sponsorship agreements that
FUFA enters into but the question begs
whether these sponsorship contracts
attempt to place the control of
Ugandan footballers’ images in the
hands of whichever rights-holder
(FUFA/UPL-StarTimes).
In Winnie Asege Vs Opportunity Bank &
MAAD Advertising, a Ugandan Court
stated that image rights
interchangeably referred to as
‘personality rights’ are the rights of an
individual to control the commercial use
of their name, image, likeness, or other
unequivocal aspects of one’s identity.
Image Rights is a serious issue in
professional sports. Many elite sports-
men license their image rights to an
Image Rights Company. During con-
tractual negotiations, a footballer’s club
will usually contract with the player’s
‘Image Rights Company’ to enable them
lawfully exploit the player’s image
rights.Christiano Ronaldo who plays his
domestic football under the Italian Serie
A can receive an award as the “Best
International Men’s Soccer Player”
under the ESPY Awards organized by
ESPN away from the Serie A because
he is firmly in control of his Image
Rights. Neither his club, Juventus, nor
the Serie A has a grip on them.
If our local footballers want to be
awarded by Football 256 without any
potential legal exposure from FUFA,
they have to get a hold of their image
rights and of course employ the
services of experts in sports law to help
them negotiate their contractual
arrangements.
There is a lot to be unpacked in this matter that has far-reaching implications
on our sports industry.
At the risk of sounding cynical, let this matter go to Court, and hopefully, a
good Judge will give us a good decision that will go a long way in improving
our sports law.