In brief: sponsorship and image rights of professional athletes in Austria

Sponsorship and image rights

Is the concept of an individual’s image right legally recognised in your jurisdiction?

In Austria the concept of personal image rights is part of the personal rights and is protected by numerous legal provisions. Image protection is a specific right of the person. According to section 78 Austrian Copyright Act (UrhG), athletes have the right to their own image. This also includes the naming right in section 43 Austrian Civil Code (ABGB), the right of privacy protection under section 1328a ABGB and protection of honour according to section 1330 ABGB, etc.

What are the key legal considerations for the commercialisation and protection of individuals’ image rights?

Advertising in sport is becoming increasingly important in Austria. Without sponsors, competitive sport would not be able to survive. As already mentioned above, athletes have the right to their own image according to section 78 UrhG. Protection under section 78 UrhG only comes into effect if the person also has a legitimate interest in the non-publication of the image. According to this, portraits of an athlete may in principle neither be publicly exhibited nor distributed in any other way through which they would be made accessible to the public, if legitimate interests of the athlete, who has neither permitted nor ordered the publication, are thereby violated. If a picture is used for advertising purposes without the consent of the athlete, his or her interests will be violated, regardless of whether the advertising is offensive or not.

As far as the exploitation of personal image rights is concerned, the athletes usually agree in advance to this in licence, sponsorship and service contracts.

Further legal considerations for the marketing and protection of personal image rights are the protection of honour (section 1330 paragraph 1 ABGB), private and family life (article 8 European Convention on Human Rights (ECHR)) and economic reputation (section 1330 paragraph 2 ABGB).

How are image rights used commercially by professional organisations within sport?

Athletes who have a contractual relationship with an association can contractually grant the association the right to use their image rights worldwide and indefinitely, especially for marketing purposes. In particular, the use may also include the right to full or partial exploitation, publication, duplication, distribution, broadcasting, non-physical reproduction and other current or future possible use, for example on the internet or other new media.

The association is also entitled to transfer these rights in whole or in part to contractual partners and trade associations, to grant sublicences or rights of use or authorisations of use, as well as to exercise these rights itself or through third parties.

How can morality clauses be drafted, and are they enforceable?

Within the framework of freedom of contract under civil law, morality provisions can, for example, be integrated into employment and sponsorship contracts of athletes and into the statutes of associations and federations. In Austrian professional football, players declare their integrity in their employment contracts. This declaration protects the integrity and credibility of sporting competitions in Austria against any form of abuse.

Violation of the fair play principle can be sanctioned with warnings, suspensions, fines and deduction of points.

Match fixing, attempted match manipulations or other forms of corruption will not be tolerated and, in addition to penalties under association law, will also entail criminal consequences.

Are there any restrictions on sponsorship or marketing in professional sport?

The Austrian Tobacco and Non-Smoker Protection Act provides for a comprehensive ban on advertising and sponsorship of tobacco products, particularly in sport.

For alcoholic beverages, there are legal restrictions for the protection of minors also in the area of TV and radio advertising for alcoholic beverages. These restrictions can be found in the ORF Act, the Audiovisual Media Services Act and the Private Radio Act.

In addition, advertising for products exclusively available at pharmacies is prohibited. Legal bases can be found in the Medicines Act, the Prescription Requirement Act and the Specialist Information Ordinance.There are no restrictions with regard to gambling.

The Austrian Football League describes rules on how advertising for teams must look on sportswear. Only one player per team and round may have different sponsors on his or her jersey than the other players.

Law stated date

Give the date on which the information above is accurate.

14 July 2020.