Tuesday, 4 October 2016

Sports Law Conference 2016, by SLAM

The Sports Law Conference, usually synonymous with RWY, will this year be organised by KLRCA & Sports Law Association of Malaysia (SLAM). Lesley Lim and I will continue to lead the Organising Committee for the 2016 edition of this annual Conference.  


Monday, 3 October 2016

New Challenges, New Chapter.

Wish to share that I have joined Messrs MahWengKwai & Associate (MWKA) on 1st October 2016 as a Partner of the Dispute Resolution Practise Group & Head of the Sports Law Practise Group. 

Fellow team members from RWY, namely Senior Associates Sarah Kambali & Lesley Lim and Associate Marlysa Razak have also joined #MWKA

Thank you.


Saturday, 1 October 2016

#SportsLaw || Image Rights : Feeding the Hungry Sponsors

Link : https://www.linkedin.com/pulse/image-rights-feeding-hungry-sponsors-richard-wee?trk=pulse_spock-articles

         Sports has evolved from an extra co-curricular activity to a booming industry over the last 50 years. The sports industry generates large funding and financial turnovers which creates a financial market on its own. In the middle of this entire gigantic industry remains the soul of sports, which is the athlete. In competitive sports, every athlete carries the goodwill and brand of that sport. Speaking of brands, it is common to read about athletes creating and maintaining their image rights. This concept of image rights is very much part of that earlier-mentioned sports industry above. Some athletes gain much financial income from their respective image rights.
         On the other hand, an increasing number of corporate companies have come to realize the potential of being associated or connected to the sports industry. Major brands like Coca Cola, McDonald’s and Samsung have constantly invested in sports sponsorship to ensure that their brand is seen to be connected to sports brands. This hunger that corporations have to link up with sports has become a driving force for the creation of a win-win situation for both parties. In all of this, sports lawyers have a unique role in bridging the gap between these demanding corporations and their desired sports.
         In Malaysia, the concept of image rights and its use in the sports industry is a foreign topic, an income-inducing opportunity unseized by many local athletes. However, with the rampant growth of globalization, a failure to properly manage one’s image would significantly hamper the individual’s ability to take control of possible additional income. It is especially relevant to sports athletes who have been granted celebrity status which may be used as a gauge of the athlete’s worth in the market. An example would be Datuk Lee Chong Wei.[1] His income is based mainly on his competition winnings but he also earns lucrative income by controlling the use of his image in endorsement deals with the likes of ‘100 Plus’ and ‘Yonex’. 
         In order to get a clearer definition of image rights in the sports industry, a panoramic comparison of image rights in the United Kingdom (UK) and the United States (US) has to be made. In the UK, there is no specific statutory provision for a right to one’s image, nor has it been expressly adjudicated within common law.[2] However, image rights is interlinked with the law in regards to intellectual property rights that protects creations. There are two aspects to the protection of image rights, which are to protect a person's right to privacy and a person's ability to commercially promote oneself. [3]

         Prior to the US case of Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc.2,[4] the right to privacy first protected individuals against the unauthorized use of their likeness for commercial purpose. It was developed in the Haelan[5] case where it formed the basis for the right of publicity.[6] This right provides that every individual has full control over the commercial use of their identity which includes their name, voice, signature and photograph. It aims to prevent unauthorized and uncompensated exploitation of an individual's image. Because of this, US is deemed to be the forerunning country for protecting an individual's image rights. However, the First Amendment to the US Constitution limits the right to publicity[7] in an attempt to form a balance between the aforementioned right and the right to freedom of expression. This is considered to be a necessary amendment to prevent infringing the freedom of press.

How are Image Rights Protected? 
As there is no specific law for image rights, intellectual property law aids in protecting an athlete's image rights through various means, for example: through the law related to trademarks and passing off.
Trademarks are recognizable insignias or words used to identify and differentiate a particular product from another, also indicating its source. Trademarks are registered to allow legal action to be taken if the trademarked brand is used without permission. In relation to image rights, athletes can register their name or their signature as trademarks. This however does not include their image. An example would be the world renown footballer, Paul 'Gazza' Gascoigne who trademarked his nickname 'Gazza', bringing about the Gazzamania fandom. These trademarks are protected under various trademark laws like the US Lanham Act and the UK Trade Marks Act 1994.
Another means of protection is through the law of passing off. Where trademarking is a precautionary measure, the law of passing off is a post-conflict step. As celebrities, it is common for an athlete’s image to be used in endorsement deals. An unauthorized use of the celebrity's image to endorse a product is considered passing off. It must be proven (1) that at that point in time, the individual had a significant amount of goodwill or reputation and (2) that a significant amount of the general population would mistake the false endorsement as a genuine endorsement by the celebrity. The athlete will then be entitled to compensation under the law of passing off.

The Role of Lawyers in Marketing Image Rights 
Malaysia applies similar law to that of UK whereby an athlete’s image rights are protected via trademarking their name. In addition to trademarks for individual athletes, sports teams like the JDT Football Team or the KLBC Badminton Team may take steps to register the team brand. This is where sports lawyers with intellectual property knowledge enter the picture.
Once the brand names are registered, it is encumbered upon relevant characters or teams to promote the brand commercially. Co-branding efforts or selling of the brand to corporate organizations are examples of commercializing an athlete’s image rights. Sports lawyers are involved in each stage of trademarking and marketing the said brand whereby they may also act as marketing advisors cum publicity agents.
Despite being a relatively uncommon field of practice in Malaysia, sports law is in great demand in Western countries. Sports lawyers draft and formalize commercial contracts between parties, ensuring the athlete is legally protected. In this modern age where having a significant presence on social media would greatly enhance the athlete’s brand, it is the sports lawyer’s duty to advise the athlete how to manage social media sites and the content that appears on their page. They filter the content to be posted on the site and advise the athlete on politically correct means of managing conflict. In terms of marketing efforts, a commercial post is planned and timed by the lawyer for maximum impact.
The commercial benefits of controlling one’s image is evident when analyzing football giants, Manchester United. Their nickname ‘The Red Devils’ has received much global recognition from corporations and fans alike. The strategic marketing of that name is a significant factor as to why they are ranked No. 1 on Forbes 2016 list of the World’s Most Valuable Sports Teams with a gross value of $1.86 billion.[8] The commercial team together with the sports lawyers of Manchester United have successfully developed their brand and image rights, forming beneficial commercial partnerships with a diverse group of elite brands (ie. Nike and Adidas). The ever-growing desire of certain corporate companies to be associated with successful sports clubs as mentioned earlier above, drives this economic pursuit for sponsorship through the image rights of the club, the team and/or the athlete.
In summary, the driving force behind a successful union between the corporate and sports sector is actually the demand potential sponsors generate by their need to be constantly fed. The relationship between the sectors has become so congruent that the absence of one would greatly impact the commercial wealth of the other. In order to satisfy this ever-growing hunger, image rights in the sports industry have to be properly created, registered and commercialized. Nonetheless, despite the hunger of sponsors, the many commercial opportunities they seek would be non-existent if it were not for the sport itself and the role the athlete plays. The centerpiece of the sports industry has always been and will always be the winning goal shot in by the athlete, the winning point scored at the final buzzer, fulfilling their principal intent of achieving victory. The spirit and soul of sports shall always remain paramount.
By Richard Wee & Samuella Kong 
[1] Jeffri Cheong, “Is your Image worth anything?” <http://www.skrine.com/is-your-image-worth-anything> accessed 7 July 2016
[2] InBrief.co.uk, “Is there a Right to Protect your image under UK Law” <http://www.inbrief.co.uk/human-rights/image-rights/> accessed 7 July 2016
[3] “Is there a Right to Protect your image under UK Law” by InBrief.co.uk <http://www.inbrief.co.uk/human-rights/image-rights/> accessed 7 July 2016
[4] 202 F.2d 866 (1953)
[5] 202 F.2d 866 (1953)
[6] Luca Ferrari and Stella Riberti, “Comparing How Image Rights Laws Apply to Sport in the US, UK and Europe” (British Association for Sport and Law, 22 December 2015) < http://www.lawinsport.com/articles/item/comparing-how-image-rights-laws-apply-to-sport-in-the-us-uk-and-europe> accessed 7 July 2016
[7] Luca Ferrari and Stella Riberti, “Comparing How Image Rights Laws Apply to Sport in the US, UK and Europe” (British Association for Sport and Law, 22 December 2015) <http://www.lawinsport.com/articles/item/comparing-how-image-rights-laws-apply-to-sport-in-the-us-uk-and-europe> accessed 7 July 2016
[8] Forbes, “The World’s Most Valuable Sports Teams” <http://www.forbes.com/pictures/mli45fdhk/no-1-manchester-united/#6e5d6c9e2270> accessed 7 July 2016

Friday, 4 March 2016

One Big Round

From The Star :-


Sunday, 2 August 2015

Be that Agent of Change

Been asked by friends, what can we do? One thing I can say, not doing anything, is not an option. 

Which leaves us with that question, what can we do? 

I would say :-

1. Start by being a leader in your own right. Lead by reminding your children, your family, your friends, on what is wrong and what is right. Stealing people's money for one thing is 100% not right. 

2. Take steps to ensure you yourself don't get involved or partake in (for example) corrupt practises. Stop giving 'duit kopi' to the cops. One less person giving 'duit kopi" mean one less corrupt incident. And remember No 1 above; be a leader and tell your kids not to do the same. Lead by example. If you continue to partake in corrupt practise; your kids may one day do the same thing too. 

3. Take part in civil movements which you feel comfortable. Do whatever little bit you can. Activities like Bersih is coming. Take part. Support. Don't stop it. Some say; "till now, after 3 Bersih rallies, nothing has happen - BN is still in power." I beg to differ. Before the Bersih rallies; we all thought we were alone. We all thought we cant voice our discontent for whatever fear we have. But Bersih has made us brave. Bersih has made us more Malaysian than ever. That itself is a big change. 

4. Some ask; what can the Bar do? I ask you, what cant you do? You have the power to speak, persuade, inspire & lead. You don't need to lead a million people. You just need to make a difference amongst your family, your friends, your circle.
As for the Bar; it is a Statutory body acting pursuant to an Act of Parliament to (amongst others), defend the Rule of Law and fight for justice. The Bar will do what it can.  

5. When the time comes, vote for change. We have come a long way since 2008. Malaysians broke the 2/3 stronghold of BN in 2008. Malaysia almost got a change in 2013. The next election, is up to all of us, to force through the change.  

6. I don't speak as Bar Council member here. I speak as a citizen of Malaysia and my views here does not represent the views of the Bar. I am like you, a Malaysian who loves his roti canal and nasi lemak and hope one day we will win a Gold Medal in Olympics. 

I do not profess to know everything and I would not be surprised that some of the points above, you may not agree. But all I can do is try to persuade you that each and every one of us, make up one powerful collaboration. Do whatever that you can, to effect change. Each and every one of us, can be an Agent of Change. 

Appreciate you taking time reading this long post. Thank you.