Image rights might have kept Springbok star in South Africa

By Jan-Hendrik Gous on 5 June 2020
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After weeks of speculation, it was finally confirmed earlier this year that Pieter-Steph du Toit would for the time being continue to ply his trade as professional rugby player in South Africa. This came at the conclusion of a 21-day period during which professional rugby players were entitled to cancel their contracts in order to take up better offers at foreign teams. It now appears that a change of the terms relating to Du Toit's image rights played a key role in keeping the Springbok star in South Africa.

Collective bargaining agreement 

In order to soften the financial blow of the Covid-19 pandemic on professional rugby in South Africa, the South African Rugby Union ("SARU") concluded a collective bargaining agreement with all professional rugby players in South Africa in terms of which the players agreed to salary reductions across the board. In exchange, the players were granted a 21-day period during which they were allowed to cancel their existing contracts and to take up more lucrative offers overseas. 

It was a provision of the collective bargaining agreement that provincial unions were not allowed to negotiate improved contracts with their players. Top players like Du Toit accordingly stood to lose up to 40% of their existing salaries due to the agreed pay-cuts.

After much uncertainty, it was eventually announced that Du Toit would not cancel his contract. It now appears that an alteration in the provisions relating to Du Toit's image rights might have persuaded him to stay in South Africa. 

What are image rights?

Image rights refer to the right to use someone's name, reputation, performance or image for commercial purposes. The commercialisation of image rights through advertising and sponsorships plays an important role in supplementing sport stars' standard salaries for on-field performances. According to a recent study, tennis player Roger Federer earned £81 million in endorsements during the last year, making out more than 90% of his total earnings. 

Image rights are generally protected in South Africa in terms of the common law protection of personality rights. In terms of the law of delict, the actio iniuriarum can be instituted to protect a person's dignitas, which is a collective term referring to all personality rights, including privacy, dignity and identity. 

Image rights can also be protected by using the common law action of passing off, or by registering a person's name, image or signature as a trade mark in terms of the Trade Marks Act. 

Unbundling of Du Toit's image rights 

In terms of a collective image rights agreement concluded in 2015, the image rights of all South African professional rugby players are held by SARU. SARU, together with the 14 provincial unions, is accordingly entitled to use the collective images of its contracted players for marketing and sponsorship purposes. The proceeds arising from the exploitation of the image rights are subsequently distributed to the players through the players' representative body. 

According to reports, Du Toit's local employer, Western Province Rugby, managed to retain Du Toit's services by amongst other things unbundling his image rights from the collective image rights agreement. Like Springbok captain Siya Kolisi, Du Toit now has control over his own image rights and can conclude more lucrative personal advertising and sponsorship deals. Given the rise in Du Toit's stock as rugby player over the past few years, he will clearly benefit having control over his image rights, rather than having them pooled into a collective agreement with all the other players. 

In conclusion 

It is expected that Du Toit's earnings from exploiting his image rights will more than compensate for his agreed salary reduction under the collective bargaining agreement. This again goes to show how important the commercialisation of image rights can be to supplement sport stars' earnings. Without it, the current World Rugby player of the year might have been lost for local South African rugby.

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