Sept. 27, 2016 – The Seventh Circuit Court of Appeals has ruled that U.S. Soccer’s governing body properly authorize the promotional use of player images without consent from the labor organization that represents the U.S. Men’s National Soccer Team.
In 2013, the U.S. Soccer Federation, which governs U.S. Soccer, wanted to market the sport with a tequila poster containing print creatives of some members of the U.S. Men’s National Team. The U.S. National Soccer Team Players Association did not approve.
In response, the U.S. Soccer Federation (Soccer Federation) said that player and collective bargaining agreements governing relations between the Soccer Federation and the U.S. National Soccer Team Players Association (Players Association) did not require the Soccer Federation to obtain approval for using player likenesses.
The Players Association filed a grievance, arguing that approval was required. The Players Association won in arbitration, and a federal district court confirmed.
But in U.S. Soccer Federation Inc. v. U.S. National Soccer Team Players Association, No. 15-3402 (Sept. 22, 2016), a three-judge panel reversed, concluding that an arbitrator exceeded his authority in determining that player approval was required.
The collective bargaining agreement at issue incorporated a uniform player agreement and addressed the use of player likenesses by the Soccer Federation.
It said that Soccer Federation “partners” could use U.S. National Team player likenesses for any non-commercial use, or for advertising or promotions.
If player likenesses were used in a “spot” – a video commercial – the Soccer Federation was to provide the Players Association with a copy of the “spot” for approval.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
Although Players Association approval was not expressly required for non-spot advertising, such as the tequila poster at issue, the Soccer Federation had been requesting approval of print creative images between 2001 and 2013.
The arbitrator determined that the collective bargaining agreement was silent on whether approval was needed for creative images that were not videos. Thus, the arbitrator relied on “past practice” in determining that approval was required.
This was a mistake, the three-judge appeals court panel concluded.
“Contrary to the arbitrator’s determination, the CBA/UPA is not silent as to the approval procedure for sponsor use of print creatives,” wrote Judge Michael Kanne.
Kanne noted that the agreement said the Soccer Federation would request but not require a sponsor/partner to make a discretionary money contribution to a “player pool” if the sponsor used the player likenesses of six or more players in non-spot material.
The panel concluded that no “ambiguity” could arise from the contract language, and the arbitrator did not have authority to interpret the contract based on past practice.
“These contractual provisions are clear and unambiguous, establishing that the parties contemplated and anticipated the use of player likenesses for six players or more on both non-Spot and Spot mediums,” Judge Kanne wrote.
Before vacating the arbitrator’s award and entering judgment for the Soccer Federation, Judge Kanne invoked a 1977 book by soccer great Pelé in the context of labor relations.
“Soccer is called ‘the beautiful game,' but the collective-bargaining process behind the sport can be ugly,” wrote Judge Kanne for the three-judge panel.