The electronic games market is huge, but still in a period of expansion. In 2019, it generated 120.1 Billion dollars, involving more than 2.5 billion gamers across the world. FIFA, the football game produced by EA Sports, is the go-to title for most of the gamers around the world, consistently appearing in the best-seller list year after year.

It goes without saying that every year the virtual reproduction of players’ physical characteristics is more realistic with loads of details such as Messi’s and Neymar’s tattoos being perfectly reproduced in recent editions. The producers are also able to simulate the players’ abilities and the way athletes play in real life.

Brazil has some of the most fanatic and loyal football fans in the whole world and, consequently, is one of the biggest markets for EA Sports’ FIFA. Unfortunately, since FIFA 15 Brazilian clubs do not have their athletes licensed in the game, having generic players in their squads instead, which naturally frustrates thousands of gamers who wish to play with the teams they support. One comic example is Flamengo’s star “Gabigol” who was replaced in FIFA by a generic player called “Oswaldinato” having a completely different look. The reason for this is the specific protection that Brazilian legislation and jurisprudence grant to image rights, as will be explained in this article.

In order to license and exploit athletes’ images in FIFA, EA Sports has to negotiate image rights contracts that allow it to reproduce them in the game. Usually, most of those negotiations are carried out with FIFPro, the global representative for professional football players. This allowed EA Sports to exploit thousands of football players’ images in a very effective way, as the negotiations were much less expensive and simpler. Unfortunately, the agreements made between EA Sports and FIFPro are not considered valid under the law of one of FIFA’s biggest markets: Brazil.

Image right protection in Brazil

The image right is classified as a personality right protected by the Brazilian Federal Constitution and has some special characteristics, such as being untransferable, indefeasible and unwaivable. As already explained in one of our articles, despite those characteristics the image of a player can be economically exploited by a third party through an assignment agreement. According to Brazilian jurisprudence, in order to be valid this contract must be interpreted restrictively, containing all its specific uses and exactly how the counterpart intends to exploit the image in question. Moreover, it is mandatory that the contract contains the personal, express, and unambiguous authorisation to use the image. This requirement is the key factor that has been causing EA Sports a lot of problems in Brazil over the past years.

In order to have the Brazilian club’s players in past FIFA editions, EA Sports relied on the negotiations carried out with FIFPro. Those agreements certainly did not contain the personal, express and unambiguous authorisation of every single athlete that played in Brazil at the time. Therefore, the agreements between EA Sports and FIFPro are considered null and void under Brazilian law. A considerable number of players sued EA Sports in the Brazilian state courts, as their images were used in past FIFA editions without their express and personal consent. Most of those players were successful in their claims, with EA Sports having to compensate them for the inappropriate use of their images. Several lawsuits against the company are pending before the Brazilian courts regarding this matter.

To avoid more lawsuits, EA Sports has not licensed any Brazilian club player for the past six FIFA editions. The company states that there is no competent body to conduct the negotiations in Brazil as there is in the UK with the Premier League for example, and it would have to negotiate individually with every single player in order to obtain their express authorisation. According to Transfermarkt, currently there are more than 650 players registered in the Brazilian first division clubs, which means that the company would have to engage in more than 650 different negotiations if it wanted to license all of them in FIFA. EA Sports considers that this approach would not be practical and would cost a lot of money.

Most Brazilian clubs’ jerseys and logos are still present in FIFA as a result of past deals made with EA Sports that have not expired yet. However, those deals only allow the use of the clubs’ images in the game and are not related to the athletes’ images. That’s the reason why since FIFA 15 you can see the clubs’ logos and jerseys in the game, but their players are replaced with generic athletes with different names, appearances and abilities.

In the meantime, while EA Sports apparently gave up finding feasible solutions, its biggest competitor Konami, the producer of PES, saw a great opportunity in the market, despite facing the same lawsuits problems as EA Sports. In the past years, Konami adopted a more aggressive and creative strategy to obtain more relevance in the Brazilian market, facing the challenge of negotiating with players, signing exclusivity deals with big clubs as Flamengo and Corinthians and even signing a partnership with the Brazilian association (CBF), creating a Brazilian eSports championship which is currently in its 5th edition. During the COVID-19 pandemic and the suspension of the Brazilian football, a PES competition between some first division professional athletes was organised with them controlling the clubs they represent in real life. In the latest PES edition, Konami managed to license all first and second division Brazilian clubs with most of its players and even some Brazilian stadiums.

This whole conflict does not affect EA Sports as much as the Brazilian clubs and the athletes themselves, since most Brazilian gamers are still interested in buying FIFA, because of the game’s quality and its successful competitive game mode Ultimate Team. FIFA has a huge number of consumers all around the world and it represents an opportunity for clubs and athletes to have their image and their talents advertised in different parts of the globe. Because of EA’s decision, the Brazilian clubs and its players end up losing a great opportunity to expand their brands through the most successful football game in the world.

One possible solution to this issue would be directly related to the image rights contract that is signed between the athletes and their clubs. Through this contract, clubs are able to exploit their players’ images in several different ways. It is important to remember that the clubs have to express the specific scope of use in the contract. The most common uses are, for example, participation in autograph sessions, photo shoots, advertisements, appearances in the club’s Youtube channel and so on. If those contracts contained a specific provision that allowed the clubs to explore the players’ images through electronic games, it would be way easier for EA Sports to license the athletes in FIFA, as instead of having to negotiate with every single player, the company would be able to license their images through agreements made with their clubs, as occurs in Italian football for example. This would save a lot of time and money for the company, and maybe it would motivate EA Sports to bring Brazilian football back to FIFA.

In conclusion, despite Konami’s effort, FIFA is still the best-seller title in Brazil by a good margin and EA Sports does not seem worried about losing its advantage anytime soon. Maybe in the future this reality will change, but for now Brazilian clubs and their players do not have as much global exposure in PES as they would have in FIFA, and it would be in their interest to have Brazilian football licensed in FIFA once again.

Gabriel Eguinoa

Gabriel Eguinoa is an attorney graduated from PUC Minas in 2019. Currently studying for LLM in International Sports Law at ISDE in Madrid. He had seven months of experience as a Legal Intern at Drummond & Neumayr Advocacia in Belo Horizonte, Brazil,  working with entertainment law. He is a future intern at 14 Sports Law in Porto, Portugal

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