PhD, Associate Professor I.Y. Rogaleva¹
Dr. of Law, Professor, Honored Lawyer of the Russian Federation I.V. Ershova²
PhD, Associate Professor G.V. Shoniya²
PhD, Associate Professor G.A. Rogaleva^2
1Plekhanov Russian University of Economics, Moscow
²O.E. Kutafin Moscow State Law University (MSLU), Moscow

Keywords: advertising, sport, law, sport event, sponsor, employer, TV broadcasting service.

Background. The valid legal and regulatory framework for the sports advertising service is rather multilateral i.e. composed of the multiple departmental and sector provisions regulating civil, labor, sport, economic, competitive, administrative and other activities; and this is the reason for the inefficiency and difficulties in the law application practices. Studies of the sport advertising service related issues are always topical due to the multiple and often inconsistent and opportunistic changes to the relevant national legal and regulatory provisions, with the critical regulatory issues often coming to a forefront prior to or during the top-ranking international competitions.

Objective of the study was to analyze the problems faced by the national legal and regulatory framework for the sport advertizing service.

Study findings and discussion. Presently the national sport advertizing service is basically regulated by the Federal Law #38-FL of March 13, 2006 “On Advertizing” (hereinafter referred to as the Law on Advertizing). It should be mentioned that the regulatory framework provided by the Law may in special cases give place to special provisions [2] as provided by the relevant legal acts. Since the sport advertizing service is traditionally dominated by commercial interests, it is only natural that the sponsors (or their agents) of the competitive events, TV/ radio broadcasting companies and copyright holders are sensitive to the regulatory system inconsistencies and inefficiencies. The sponsor promoting advertizing service component is presently regulated by a few special legal provisions. Whilst the Law on Advertizing Article 10 item 4 prohibits any mentioning of the specific trademarks/ models/ individual versions of goods and the relevant production companies or individuals in the social advertizing service, this prohibition is not applicable to sponsors and sponsorship, as provided by the Law on Advertizing Article 10 item 5. As far as the Law on Advertizing application practice in the sport advertizing domain is concerned, it may vary depending on the data/ information distribution media and methods, with the TV/ radio broadcasting service being in priority (due to the mass clientele) by the valid legal and regulatory framework. Live broadcasts or replays of competitive events, for example, may be interrupted by an advertisement conditional on it being timed to the scheduled/ unscheduled breaks in the competitive events. When the advertisement cannot be timed to such breaks, the broadcast/ replay may give place to advertisement on a few other conditions: the advertisement, for example, should not overlap with the essential elements in the visual/ auditory data flow; and should not exceed 20% of the net time of the broadcast/ replay of the event. Any party violating these and other relevant requirements of the Law on Advertizing may be called to responsibility as provided by the Administrative Code of the RF Article 14.3.

It was in July 2014 that the Law on Advertizing was provisionally amended in the part regulating the corporate identity advertizing service with a special priority to identities of the beer/ beer-based beverage producers and their products in advertisements in the formal competitive events. This provisional amendment (valid till January 1, 2019) comes in conflict with the valid prohibition on advertisement in sport facilities and their close (100m) vicinity that means that till the above deadline the beer/ beer-based beverage producers are free to advertize their products in the TV/ radio broadcasts/ replays on the national and special sport/ physical education channels, with the only exclusion for the children/ junior competitions. It is clear that the provisional amendment that clearly comes in conflict with the Law on Advertizing was lobbied by the commercial vested interests in the professional sport sector driven by their profit-making, business promotion and other agendas [1].

It is common knowledge that conflicts of interests are particularly acute when an advertisement of alcoholic products comes to the sport grounds and arenas. The national legislators have been successful in setting forth a few absolute prohibitions for the sport sector advertisement. The advertisement, for instance, shall be clear of any connections of the competitive accomplishments with a consumption of alcoholic beverages; and shall give a clear warning that overconsumption of the alcoholic beverages may be harmful for health, with the warning taking at least 10% of the total square/ time of the advertising material. As emphasized by the Russian Federal Antimonopoly Service Letter #АК/7749/15 of February 20, 2015 “On Advertizing of Alcoholic Products”, the warning shall be performed and timed so as to give enough time for the consumers to perceive it, otherwise the advertizing material may be qualified free of the obligatory warning.

Furthermore, it is quite common for the modern sport legislation to increasingly regulate the image-usage rights i.e. the usage of personal images of sport celebrities for advertizing purposes. Legal relationship in this domain may be reasonably and effectively regulated by the valid Civil Code of the RF on the whole and the licensing provisions in particular. The individual image of an athlete shall be interpreted as his/her inalienable property produced by the intense physical and creative work. When the athlete delegates his/her own image usage rights to some sport entity/ club, both of the parties enter into certain legal civil relationship that should be regulated by an image title handover contract with the exclusive individual rights being handed over in full – or by a licensing contract when the title usage is limited by the contractual provisions to some degree. The athlete should be fully aware of the fact that the exclusive entitlement contract (when the image usage rights are handed over to the sport entity/ club) makes it impossible for him/her to use it any more on his/her own discretion nor delegate the same image usage right to the third party including goods/ works/ service advertisers, with such delegation being only possible on a special permission of the image title holding sport entity/ club. It should be emphasized that such an athlete shall in no case promote any company, goods, works or services unless such promotion is agreed upon in writing by the image title holding sport entity/ club. The sport celebrity, having received an offer from an advertiser, shall duly notify the image title holding sport entity/ club on such an offer and make sure that the advertiser is aware of the sport entity/ club holding the exclusive right for his/her image – when the relevant limitations are expressly provided by the image usage contract of the athlete with the sport entity/ club. The athlete can accept an advertising offer on his/ her own discretion when he/ she is not bound by a service contract with the sport entity/ club. It should be mentioned, however, that such service contracts shall secure equal rights and liabilities of the parties regardless of the service nature or domain, with every right and lawful interest of each party being duly protected [3].

In actual practice, however, the individual and collective image title usage policies and practices may vary, particularly in the modern team sports. A collective sport image means the sport club/ team/ federation signage and identity closely associated with the collective/ consolidated image of the team (its main line) and/or individual athletes. A sport entity/ club is generally entitled to use the individual identities/ images of its member athletes (under the relevant sponsorship contracts, among other things) when such usage is expressly provided for by the individual service contracts. Individual and team images in modern sports shall be interpreted as the subjects for intellectual property titles of the athletes and teams.

The competitive event hosting/ organizing entities generally hold exclusive titles for the broadcasts, replays and images applied for advertizing purposes prior to and during the events and for final individual/ team scorings, standings and publications/ declarations thereof.

The sport celebrities’ intellectual property securing legal and regulatory provisions for the sport advertizing service may generally be described by the intersection theory that implies the image title holders’ interests being viewed as intersecting and addressed as such by the relevant legal provisions.

Conclusion. The study data and analysis give the grounds to conclude that the commercial interests of the parties in the image usage relationship may be secured despite the fact that in certain domains they go beyond the valid legal and regulatory framework for the modern sports, advertizing service, civil and labor relationships; as there still exist certain legal means that for the contractual rights and liabilities of the parties being formed on a sport-specific basis to fully protect the lawful interests of the sport celebrities and sponsors in the image usage domain. The still existing legal and regulatory deficiencies and inefficiency need to be straightened out by the consistent and theoretically well-grounded legal framework for the sport sector advertising business that shall be developed and implemented to facilitate the national economic progress as required by the governmental policies, with due balance of the private and public interests in the new sector legislation.

References

1. Ershova I.V., Mokhov A.A. [ed.] Pravovoe regulirovanie ekonomicheskoy deyatelnosti: edinstvo i differentsiatsiya [Legal regulation of economic activity: unity and differentiation]. Moscow: Norma-INFRA-M publ., 2017. 464 p.
2. Rogaleva G.A., Rogaleva I.Y., Shonia G.V., Gusov K.N., Tuchkova E.G. [ed.] Trudovoe pravo Rossii [The Labour Law of Russia]. Turotial. 4th ed., Rev., Sup.. Moscow: Prospektus publ., 2014, 272 p.
3. Blazheev V.V., Bayramov V.M. et al.; Rogachev D.I. [ed.] Sportivnoe pravo Rossii [Sports law of Russia] Textbook for masters. Moscow: Prospekt publ., 2016, 640 p.

Corresponding author: andryushenko-lil@mail.ru

Abstract

The article analyzes the problem of the still inadequate legal provisions for the national sport sector on the whole and the sport advertising service in particular. The problem appears to be due to the loose interdepartmental and interdisciplinary format of the sector regulatory system – that means that the existing legal and regulatory provisions for sports advertising service are rather multilateral i.e. composed of multiple civil, labor, sport, economic, competitive and administrative codes, rules and provisions. This loose interdepartmental system design makes the regulatory policies and practices inconsistent, with the new changes, amendments and provisions being rather fragmented, contradictory and, hence, inefficient. These legal and regulatory inefficiency and inconsistencies are heavily detrimental for the legal procedures and often result in violations of the lawful rights and interests of many parties to the advertising business, including the advertising material providers, producers, distributors and clientele. We believe that it is high time for a consistent, theoretically well-grounded legal framework for the sport sector advertising business being developed and implemented to facilitate the national economic progress as required by the governmental policies, with due balance of the private and public interests in the new sector legislation.