Introduction: Establishment of Athletes’ Commercial Personality Rights and Commercial Value Assessment Methods
At the intersection of modern business society and the highly developed competitive sports industry, top sports stars have fully evolved from mere participants in competitive events to super commercial IPs carrying huge economic benefits. The reflection of this phenomenon in the legal system is the leap-forward extension of natural persons' personality rights to property rights. From the perspective of jurisprudence, the traditional civil law system’s protection of portrait rights and name rights mainly focuses on the defensive protection of spiritual interests, and its core is to protect an individual’s personal dignity from infringement 1 . However, with the high degree of marketization of the sports industry, the huge commercial ability to attract money contained in the image of athletes has gradually become apparent, giving rise to the theoretical evolution of "Merchandising Right". Under this theoretical framework, athletes not only have the right to prohibit unauthorised commercial misuse by others, but also have the positive right to put their names, likenesses, signatures, nicknames and related derivative logos into commercial circulation and obtain huge economic benefits accordingly2.
In this context, sports agency legal services and "athlete commercial value assessment methods" have become core propositions in the sports industry. Currently, top international sports agencies (such as IMG/Endeavor, which represents Gu Ailing) and the commercial branches of players unions (such as the NBA's THINK450) no longer rely solely on their on-field performance (such as the number of Olympic gold medals or league rankings) when evaluating the commercial value of athletes, but have established a multi-dimensional composite evaluation model 4. The core indicators of this model include: first, the basic value of competition, that is, the performance stability and exposure frequency of athletes in core events; second, cross-border breaking ability, that is, the influence of athletes in pan-cultural circles such as fashion, technology, and entertainment; third, social media assets, including cross-platform fan base, interaction rate and user stickiness; fourth, legal rights confirmation and exclusivity premium, that is, whether athletes have a clear trademark layout plan, and whether their brokerage contracts can provide sponsors with strict category exclusivity protection 4.
The legal services of sports agents run through the entire life cycle of value evaluation and realization mentioned above. Professional sports lawyers not only need to be responsible for the drafting and negotiation of complex "image licensing agreements" and "commercial sponsorship contracts", but also need to be deeply involved in athletes' global trademark layout, compliance review of digital asset (such as NFT) issuance, and response to the "Morality Clause" triggering in crisis public relations 9. Based on detailed judicial precedents and international sports organization rules, this report will exhaustively analyse the evolution of commercial rights disputes between top Chinese and international athletes, deeply deconstruct the transnational legal regulatory framework, and prospectively explore the reshaping of athletes' commercial value by cutting-edge technologies such as artificial intelligence, the Metaverse, and high-net-worth wealth management.
Judicial practice and case analysis on the protection of commercial rights of Chinese athletes
The take-off of China's sports industry has been accompanied by a series of athletes' rights protection cases that have great social influence and legal breakthroughs. These cases not only define the standards of Chinese judicial judgment on the protection of personality rights, but also profoundly reveal the deep game between the current sports management system and the laws of market economy.
Defensive protection of name and portrait rights and their commercial pricing
China's judicial practice has gone through a transition from passive mental defence to active confirmation of the value of commercial logos when it comes to the protection of athletes' rights to names and portraits. Yao Ming’s infringement case against Wuhan Yunhe Shark Sports Goods Co., Ltd. (the “Yao Ming Generation” case) is a landmark case in this judicial evolution. In this case, the infringing party registered and used "Yao Ming Generation" as a commercial logo without any legal authorization, and used Yao Ming's name and portrait extensively in the promotion of sportswear and other products. 2 Yao Ming ("Team Yao") not only claimed infringement of portrait rights and name rights, but also introduced the "Anti-Unfair Competition Law" as the core cause of action, claiming 10 million yuan2.
The Higher People's Court of Hubei Province made a landmark finding in the second-instance judgment: the name of a natural person protected by the Anti-Unfair Competition Law is different from personal rights in the general sense, but a "commercial identifier" that distinguishes different market entities. 12 The court held that Wuhan Yunhe Company violated the principle of good faith and generally accepted business ethics by using Yao Ming's name and likeness to create confusion about the source of the products, despite knowing his high social popularity. Because the infringement was intentional and the consequences of the infringement were ignored, the second-instance court revoked the first-instance judgment of only 300,000 yuan in compensation. After comprehensive consideration of the time, consequences and reasonable rights protection costs of the infringement, the court finally awarded 1 million yuan in compensation. 2 This case legally established the legal status of the name rights of top sports stars as high-value commercial assets.
In the "Ambush Marketing" of the Internet era, infringement methods are concealed and fragmented. The case of former Olympic champion Liu Xiang against Didi Travel is a typical example. Didi Chuxing used a picture with Liu Xiang's event photos on its official Weibo (the text was "#Liu Xiang Retires# My runway! My column! The end of every period is another beginning, come on!").Liu Xiang sued the Haidian District People's Court of Beijing for 1.26 million yuan for infringement of portrait rights. 13 Eventually, Didi publicly apologized and admitted that its commercial promotion had infringed 13 .Coincidentally, New Oriental's wholly-owned subsidiary was also ordered by the court to apologize in writing and pay 6,000 yuan in compensation for using Liu Xiang's match photos in an article on its WeChat public account without consent16.
In addition, Asian flying star Su Bingtian encountered intensive online infringement after the Tokyo Olympics. He successively filed online infringement liability dispute lawsuits against dozens of companies such as NetEase, Dewu, and Century Gold List 17. In such cases, the defendant companies often argue that the content they publish is “positive publicity” and “science popularization in nature” and is not directly used to promote products. Therefore, it is not for profit and does not constitute infringement. 19 However, Article 1019 of the Civil Code of the People's Republic of China has clearly eliminated "for profit" as a constitutive element for infringement of portrait rights20. The logic of judicial decisions shows that companies that use celebrity portraits on official social media or commercial accounts without authorization, even if they do not directly attach purchase links, use the star's popularity to attract audience traffic, increase account weight, and enhance brand attention. In essence, they have illegally absorbed the hidden commercial value of the celebrity's portrait and must constitute infringement 19.
Administrative regulations and brand defence layout for malicious trademark registration
After sports stars become famous in the international arena, their names and nicknames quickly become the hardest hit areas for capital and speculators to maliciously register trademarks. The inherent economic driving force of trademark squatting lies in extremely low upfront costs and potential huge profit expectations. In my country, the market cost of applying for a trademark is only about 2,000 yuan. Once the preemptive registration is successful, the return may be dozens or even hundreds of times through extortionate transfer or false endorsement. 21
During the Tokyo Olympics, the names of Quan Hongchan, Yang Qian, Chen Meng, Wang Shun and other Olympic athletes encountered large-scale malicious registration. In just a short period of time, there have been more than 20 trademark applications in the name of “Quanhongchan”, and even evasive variants such as “Hongchanchan”, “Xingge”, and “Tian Shen” have been derived 22. In response to this bad phenomenon, the Chinese Olympic Committee issued a solemn statement, and the National Intellectual Property Office (CNIPA) took thunderous measures. In accordance with the provisions of Article 10, Paragraph 1, Item (8) of the Trademark Law (that is, signs that are "harmful to socialist morals or have other adverse effects" shall not be used as trademarks), 109 trademark registration applications containing the names of Olympic athletes were quickly and proactively rejected, and relevant trademark agencies were interviewed and administratively punished in accordance with the law 23.
This rapid rejection mechanism reflects a major strategic shift in China's administrative regulatory orientation: from relying on rights holders to raise objections during the subsequent preliminary announcement period or to declare invalidity after registration (ex-post relief), to substantive interception during the active review stage (pre-emptive prevention). An in-depth legal analysis shows that registering the names of sports stars as trademarks not only damages the athletes' prior rights to their names, but also damages public order and good customs. Such speculative behaviour attempts to improperly take advantage of others' market reputation accumulated through long and hard training, shorten the public's awareness of goods or services in order to earn economic benefits, and seriously disrupts the normal order of trademark registration 25.
In order to turn passive defence into proactive attack, the new generation of top athletes began to pay attention to building their own brand matrix. Take tennis Grand Slam runner-up and Olympic gold medalist Zheng Qinwen as an example. His team attaches great importance to forward-looking trademark layout and brand protection7. In 2024, Zheng Qinwen relied on his strong strength and excellent public image to hold endorsement contracts with more than 10 cross-industry luxury and technology brands such as Rolex, Dior, Audi, Lancôme, and Balenciaga 7. According to Forbes' list of the highest-paid female athletes in 2024, Zheng Qinwen ranks fourth in the world with US$20.6 million (US$5.6 million in on-field endorsements and US$15 million in off-field endorsements). The stability of its business empire is based on a strict intellectual property protection network and proactive trademark strategic layout.
The interest game between personal endorsement and collective sponsorship: the pain of commercialization within the system
The commercial value development of Chinese athletes faces a unique institutional friction - the serious conflict between collective commercial rights and individual commercial rights under the national system. Sun Yang's "award-wearing controversy" (dressing scandal) at the 2018 Jakarta Asian Games was the epitome of this deep-seated conflict. As a member of the Chinese sports delegation, when Sun Yang won the 200-meter freestyle gold medal on the podium, he did not wear the uniform of the official sponsor of the delegation, Anta, but wore the 361° brand sportswear endorsed by him personally 27. In the subsequent 800-meter and 400-meter freestyle award ceremonies, although Sun Yang changed into Anta's award-winning uniform, he adopted alternative methods such as wearing the national flag, using national flag stickers, or holding a mascot to cover the Anta trademark 27.
In this incident, the legal boundaries between the parties are highly blurred and full of games. Anta officially issued a stern statement, stating that "Athletes from the same country appeared on stage wearing different award uniforms, which is unprecedented in the history of world sports" and seriously violated the spirit of the contract and the bottom line of the rules. 28 However, from the analysis of contract law, there is no direct commercial sponsorship contract relationship between Anta and Sun Yang. Therefore, Anta cannot directly sue Sun Yang for liability for breach of contract. It can only pursue liability for breach of contract from the contracting party (i.e., the Chinese Olympic Committee or the Chinese Sports Delegation) 28.
Examined from a more macro legal perspective, this contradiction reveals the historical legacy of the current Chinese sports law system regarding the ownership of commercial rights. Traditional sports management regulations often stipulate that the commercial personality rights of athletes belong to the state or the collective, or require the collective and the individual to be divided proportionally (for example, historically it has been stipulated that athletes 50%, coaches and meritorious personnel 15%, associations 15%, and transport units 20%) 3. This kind of management thinking was reasonable in the early days, because the training of athletes was highly dependent on state financial investment. However, as the marketization of sports deepens and the individual commercial value of athletes increases exponentially (for example, Ning Zetao also had a serious dispute before when he secretly accepted a commercial for a competing milk product sponsored by the national swimming team30), the mandatory "overall package sponsorship" will inevitably trigger a huge backlash. Due to the lack of equal business negotiation mechanisms and a clear licensing contract system, star athletes often lack substantial control over the scope of their transferred rights. How to establish a modern profit distribution mechanism that takes into account national interests, association development and individual commercial demands, and introduce internationally accepted sports arbitration and due process (Due Process), is a deep-water area that China's sports market-oriented reform needs to overcome 1.
In sharp contrast to the pain within the system, top athletes who have jumped out of the traditional framework have demonstrated a highly autonomous business development model. For example, Gu Ailing's business territory is exclusively represented by the top international sports agency IMG (Endeavor Weimei) 4. Under this in-depth agency model, athletes no longer just sell simple advertising spaces, but output a set of all-round, international, and daring to challenge the limits of their value system. It is estimated that Gu Ailing’s after-tax fee for one endorsement is as high as 2.5 million U.S. dollars, and her more than 20 top-level endorsements have brought in huge income of more than 40 million U.S. dollars 4. This model of matrix operation of athletes as independent transnational business entities represents the ultimate form of future sports commercialization.
In order to more clearly present the context of China’s judicial and administrative practice in protecting athletes’ rights, the following summarizes core typical cases and their legal implications:
Case characters
Focus of disputes and forms of infringement
Applicable Laws and Judgment/Processing Results
Deep legal implications and industry impact
Yao Ming
Name rights, portrait rights and unfair competition ("Yao Ming Generation" case)
"Anti-Unfair Competition Law", name rights; awarded 1 million yuan in damages and published an apology in the newspaper.
Establishing the legal status of sports star names as high-value "commercial identifiers" breaks through the limitation of only applying to personality rights and the low amount of claims.
Liu Xiang, Su Bingtian
Social media “ambush marketing” and portrait rights infringement
Protection of portrait rights under the Civil Code; the platform parties (Didi, New Oriental, etc.) were ordered to apologize and compensate.
It is clear that unauthorised “borderline” publicity on official social media constitutes a deprivation of the commercial value of a portrait, even if it has no direct profit purpose.
Quan Hongchan, Wang Shun
Malicious trademark squatting
Article 10, Paragraph 1, Item (8) of the Trademark Law; 109 applications were actively rejected by the State Intellectual Property Office.
Administrative supervision is put in place to combat malicious registration at the source, and it is determined that registration of names of well-known athletes violates public order and good customs and disrupts registration order.
Sun Yang, Ning Zetao
Exclusive conflict between collective official sponsorship and individual commercial endorsement
Principle of privity of contract; no direct litigation, but triggering profound disputes over compliance and internal disciplinary penalties.
It exposes the ambiguity in the ownership of athletes’ commercial personality rights under the national system and calls for a more equal collective authorisation negotiation mechanism and hearing system.
Comparison of international legal jurisdictions and transnational arbitration on the protection of athletes’ image rights
In the context of global operations, understanding the legal differences in the protection of athletes' rights in major jurisdictions is a core prerequisite for transnational business layout and rights protection. The United States, the United Kingdom and continental Europe have taken very different paths in this field, reflecting the different value orientations of different legal systems towards free competition and personal property ownership.
Reflections on the “Right of Publicity” and over-protection in the United States
The United States is the first country in the world to establish and most deeply commercialize athletes’ image rights. This right originated from the famous case of Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. in 1953. In this case, Judge Jerome Frank recognized for the first time that individuals (especially professional baseball players) have independent property rights to their own images, thus completely separating the "right of publicity" from the traditional right of privacy ("the right to be undisturbed") and becoming a property right that can be authorized, transferred or even inherited 32.
Under the American system, the scope of protection of the right of publicity is extremely broad. It protects not just an athlete's name and true likeness, but extends broadly to nicknames, signatures, signature moves, and even unique physical features or identifiable voices. The evolution of this strong property attribute has led to the “overprotection” trend in the American sports industry33. For example, former NBA coach Pat Riley successfully registered the trademark "Three-Peat"; NFL star Marshawn Lynch registered "Beast Mode"; NBA star Giannis Antetokounmpo registered "Greek Freak" 33. This act of privatizing common language or culturally derived symbols has made the trademark landscape of sports entities extremely crowded, greatly increased the compliance costs of potential competitors and media, and even restricted the rebranding of teams (such as the trademark barriers encountered by the Washington NFL team when it changed its name) 33.
The academic and judicial circles have begun to reflect on this over-protection. On the one hand, the freedom of speech (Free Speech) guaranteed by the First Amendment to the U.S. Constitution is often used as a defence to balance the absolute expansion of the right of publicity 32; on the other hand, the Trademark Modernization Act (TMA) introduced in 2020 provides a new mechanism aimed at cleaning up idle trademarks in the federal register that are not actually used for commercial circulation, reiterating the statutory requirements of "commercial use", and trying to break the absolute monopoly of capital on sports cultural symbols 33.
UK’s “Passing Off” and its strict legal logic
Unlike the United States, which vigorously promotes the commercialization of image rights, the United Kingdom (and Wales) does not yet have an independent and universal “Image Right” in statutory law. 34 The British judicial system is extremely cautious and refuses to create an exclusive right that would give celebrities absolute control over the arbitrary use of their image34. Therefore, when British sports stars encounter unauthorised commercial use, they can only rely on the "passing off" action under the common law of intellectual property to defend their rights.
According to the classic three elements established in the famous case of Reckitt & Colman v. Borden, a plaintiff filing a counterfeiting action in the UK must simultaneously prove: (1) It enjoys goodwill (Goodwill) for the relevant goods or services; (2) The defendant made a false statement (Misrepresentation) to the public, causing the public to misunderstand; (3) The plaintiff suffered actual commercial harm38.
In court practice, this threshold is extremely high. In the case of F1 racing driver Eddie Irvine v. Talksport Radio, the radio station altered an old photo of Irvine holding a mobile phone into holding a radio with the radio station's logo and used it for advertising. For the first time, the court supported the passing-off lawsuit based on "False Endorsement" in a sports celebrity's rights protection. 38 However, when defining the boundaries of "merchandising", Rihanna v. Topshop provides a more precise footnote. Topshop sells T-shirts printed with Rihanna music video stills (the copyright of the photo has been legally authorised by the photographer). Although the court ultimately sided with Rihanna, the Court of Appeal judge specifically emphasized that British law does not recognize the general right of celebrities to control their images; the only and special reason for ruling in favor of Rihanna was that the uniqueness of the particular photo and the history of cooperation between the parties led to a large number of consumers seriously misperceiving that the T-shirt was "officially authorized" by Rihanna 36 . This suggests that the unauthorised sale of merchandise bearing the likeness of an athlete in the UK may not be illegal at all if it is simply viewed by the public as an expression of adoration and does not cause confusion about "commercial endorsement".
Trademark functionalism in the EU and procedural challenges at the Court of Arbitration for Sport (CAS)
The protection of sports intellectual property rights in the EU is between that of the United States and the United Kingdom. The core of the review by the European Court of Justice (CJEU) is whether third-party use substantially affects the "statutory function" of the trademark (such as the source indication function, quality assurance function or investment function) 33. In the famous case of Arsenal Football Club v. Reed, even if street vendors printing the Arsenal team logo on scarves was regarded purely as a "Badge of Allegiance" by some fans, the EU judicial bodies still tended to believe that this behaviour inevitably damaged the core function of the trademark to indicate the source of the goods, and therefore constituted infringement 33.
In terms of transnational dispute resolution mechanisms, the Court of Arbitration for Sport (CAS) plays the role of the highest judicial final authority. However, academics have pointed out that the organizational structure and arbitrator selection mechanism of CAS are often biased at some levels towards powerful institutions with deep resource backgrounds such as the International Olympic Committee (IOC) and International Sports Federations, and face challenges in ensuring the procedural justice and substantive justice of individual athletes 41. In the case of Sun Yang v. the World Anti-Doping Agency (WADA) and FINA, CAS went through a lengthy review process and finally determined that Sun Yang failed to provide an extremely sufficient reason and refused to take the blood sample away from the sampling personnel, which constituted an out-of-competition violation of anti-doping rules, and sentenced him to a suspension period of up to 4 years and 3 months (51 months) 42. This far-reaching ruling not only destroyed the prime-time competitive careers of top athletes, but also directly caused their commercial endorsement value to be wiped out. It is a cruel warning to top international athletes: when dealing with anti-doping compliance and transnational commercial disputes, they must be equipped with a top team of international sports law lawyers to accurately handle the highly complex and confrontational CAS arbitration procedures.
In order to visually compare the differences in the protection of athletes’ commercial rights in major jurisdictions around the world, the following table systematically sorts out:
Jurisdiction/Mechanism
Core legal concepts and protection paths
Strength of protection and threshold of proof
Typical cases/regulations
Applicable features and potential defects
USA
Right of Publicity
Extremely high; the scope of protection is not limited to portraits and names, but even nicknames and iconic actions.
Haelan Labs Case; Trademark Modernization Act
The property rights attribute is extremely strong, but it has triggered conflicts over the "over-protection" controversy and the First Amendment to freedom of speech.
United Kingdom
Passing Off
Weak; the law refuses to recognize absolute “image rights” and the threshold for rights protection is high.
Eddie Irvine case; Rihanna v. Topshop case
The plaintiff must prove three strict elements (goodwill, confusion caused by false statements, and damage). If there is no confusion, there will be no infringement.
European Union
Trademark functionalism
Higher; focused on protecting the core functions of commercial identification (origin indication and investment functions).
Arsenal v. Reed
Even if consumers regard the infringing product as a badge of allegiance, it will be sanctioned as long as it affects the function of the trademark.
China
Commercialization of personality rights/anti-unfair competition
Above average; transitioning from spiritual defence to recognition of commercial identity value.
"Yao Ming Generation" Case; Image Rights Clause of the Civil Code
There is a lack of special "right of publicity" legislation and multiple laws need to be cross-applied; the distribution of rights within the system still needs to be clarified.
The evolution of business rules of international sports organizations and the redistribution of interests
On the highest stage of international sports, the commercial development of individual athletes will inevitably collide with the interests of the official sponsors of the event (Top Sponsors). In order to balance the huge financial demands for hosting games and the rights of individual athletes, international sports organizations have formed a complex and sophisticated legal compliance ecosystem by constantly revising their business charters.
International Olympic Committee (IOC) Rule 40 Power Compromise and Compliance Guide
Article 40 of the Olympic Charter (Rule 40) was originally a strict prohibition established by the International Olympic Committee (IOC) to resolutely combat "ambush marketing". Its core purpose is to protect the exclusive rights and interests of those global official partners who spend hundreds of millions of dollars to sponsor the Olympic Games, and to maintain the long-term capital pool and solidarity fund model of the Olympic Movement43. The original rules required athletes participating in the Olympic Games to be absolutely prohibited from using their personal names, likenesses or sports performance for any commercial advertising activities that were not approved by the IOC during the event. 45
However, the rule, which deprives athletes of their ability to monetize during a period of greatest global attention, has been met with huge resistance. Under the heavy legal pressure of the German Federal Cartel Office, which determined that it constitutes abuse of market dominance and unfair competition, the IOC has made subversive changes to Rule 40 since 2019, completely changing it from "prohibited in principle" to "permitted in principle if conditions are met" 45.
For the 2024 Paris Olympics and the 2026 Milan-Cortina Winter Olympics (the silent period of Rule 40 is set from January 30 to February 24, 2026), the IOC issued a detailed "Guidelines for Athletes' Commercial Activities" 44. According to the latest rules, brands that are not official Olympic sponsors can conduct commercial activities during the quiet period as long as they strictly abide by the following compliance red lines:
Generic Marketing: Brands are allowed to use the images of sponsored athletes during the Olympics, but the prerequisite is that the advertisement must have been placed on the market before the Olympics (usually 90 days before) and maintain a consistent frequency of exposure during the silent period. Advertising content is absolutely prohibited from showing any Olympic intellectual property (IP), such as the five-ring logo, mascots, Olympic slogans, competition venue interiors, national team uniforms, and protected words such as "Paris 2024" and "Team USA" 44 .
Thank You Messaging: Athletes can post simple thank you messages to their personal sponsors on personal social media, but the number is subject to strict quotas by the National Olympic Committee (NOC). For example, the United States Olympic Committee (USOPC) stipulates a maximum of 7 times, and the British Olympic Committee (BOA) stipulates a maximum of 10 times per athlete. And the content of the post can only express gratitude, and it is absolutely prohibited to imply that the brand's products improve sports performance or conduct substantive product promotion45.
Congratulatory Messaging: Unofficial brands are strictly prohibited from publishing congratulatory or cheering advertisements for athletes during the Olympic silent period. Such advertisements may only be published before the quiet period begins, or after the quiet period ends, otherwise it will be considered an infringement of establishing an illegal commercial association 44 .
In order to achieve transnational monitoring, non-Olympic partners must submit cross-regional advertising reports to the official in advance through the "Athlete Advertising Notification Portal" (rule40.olympic.org) established by the IOC 48. This extremely sophisticated system design demonstrates the ultimate balance made by international organizations between monopoly profits and the empowerment of underlying athletes.
FIFA and EA Sports’ collective licensing break: the separation of underlying data and portraits
In the field of international football, the ownership and authorisation of players' image rights are more fragmented and complicated. This involves the division of rights in four dimensions: individual players, their clubs, national teams, and the International Federation of Professional Footballers (FIFPro). Usually, when players sign a club's labour contract, they will transfer part of their image rights for the club's collective promotion and sponsorship50.
However, in the globally popular video game "FIFA" series, this complex licensing chain caused a serious crisis. Famous football stars Zlatan Ibrahimović and Gareth Bale publicly protested strongly against game developer EA Sports and the players union FIFPro, questioning why they could use their names and facial features in games to make huge profits for a long time without the players explicitly signing a licensing agreement 51.
This controversy exposed the secret chain of the game giant’s acquisition of sports image rights: in order to embed the real data of more than 17,000 players in the game, EA Sports cannot directly sign contracts with each player one by one. Instead, it obtains package rights by signing exclusive cooperation agreements with leagues such as the Premier League and La Liga, or by signing a package of “Collective Licensing Agreement” (Collective Licensing Agreement) with FIFPro, which represents players unions in 65 countries around the world. 51 When top players believe that they have not substantially participated in the reasonable distribution of profits under the collective agreement, or claim that they have never authorised the union to represent their e-sports derivative industry rights, the legal basis of collective authorisation is severely challenged. This internal friction was superimposed on the breakdown of negotiations between EA and FIFA to increase trademark licensing fees to tens of billions of dollars, which ultimately led to the complete end of the nearly 30-year-old EA-FIFA iconic partnership in 2022. 54 This case profoundly shows that as the revenue of the digital entertainment industry far exceeds that of traditional sports licensing, the old collective representation system is facing a fierce impact from the awakening of individual rights of players.
The union-led model of NBA and THINK450: collective awakening and the ultimate operation of capital
Compared with the looseness and frequent disputes in the international football world, the National Basketball Players Association (NBPA) of the National Basketball League (NBA) has demonstrated the world's most successful and mature athlete collective business rights protection and wealth creation model. According to the latest "Collective Bargaining Agreement (CBA)" reached in 2017 and updated in 2023, the NBPA has completed a historic rights recovery: completely withdrawing the players' "Group Licensing Rights" (the right to use the names, likenesses, and numbers of three or more active NBA players in products or sponsorships at the same time) from the control of the NBA league and handing it over to the union for independent operation 55.
In order to realize the market realization of this huge intangible asset, NBPA established a wholly-owned for-profit subsidiary - THINK450 5. The name symbolizes the union's commitment to business benefits for the league's approximately 450 active players. THINK450 has not only taken over hundreds of millions of dollars in collective licensing negotiations with giants such as 2K Sports (digital games), Fanatics (peripheral apparel and player cards), and Panini, but has also been deeply involved in original content production, technology start-up investment, and even helped players develop collegiate co-branded licensing projects (Collegiate Co-branded Licensing) 6.
The legal essence of this model is that it uses the legal representation of the union to forcibly aggregate the originally scattered personal influence of 450 NBA players with uneven bargaining power into a monopoly business entity that is unshakable in the face of external sponsors. This not only greatly increases the leverage of licensing bargaining, but also provides generous long-tail commercial dividends to the league's bottom-tier fringe players. It is a textbook case of modern sports unions leading the redistribution of wealth.
The impact and reshaping of athletes’ rights by cutting-edge technologies in the digital era
With the explosive growth of Web 3.0, blockchain underlying technology and generative artificial intelligence (AIGC), athletes' business carriers are migrating from the physical world to the digital twin world in an irreversible trend. This triggered a series of unprecedented legal challenges, forcing the connotation and extension of traditional protection of portrait rights and name rights to be reconstructed.
AI deepfakes and the expansion of personality rights of virtual images
The proliferation of AI face-changing, voice cloning algorithms and large language models has made the image of athletes no longer limited to their biological bones and appearance, but inevitably extends to their digital characteristics and behavioral habits. The recent typical cases involving artificial intelligence released by the Beijing Internet Court have drawn extremely important judicial red lines for this frontier field. In an “AI companion” infringement case, the court clearly pointed out that the personality rights of natural persons not only extend to the physical person, but also to their “virtual image” 59 .
In judicial practice, if a software developer uses a clustering algorithm or generative model to create a virtual portrait with the typical facial features, movement habits or characteristic voice of a well-known athlete without legal authorisation (and even provides a "training" function to allow users to interact intimately) for profit, even if the virtual image is not a direct copy of a real photo, as long as it reaches the level where "ordinary people in society can identify the identity of the corresponding subject from facial features, body image, etc.", it constitutes a serious infringement of the natural person's portrait rights, name rights and voice rights 20.
More importantly, the court broke through the traditional "safe harbor principle" in such cases. If a technology platform substantially encourages and participates in the generation and distribution of infringing virtual content through its product design and algorithm recommendations, the platform will no longer be regarded as a "technology-neutral" fault-free network service provider, but will be directly characterized as a "content service provider" and must bear strict legal responsibilities to cease infringement and jointly and severally compensate for losses60. Faced with the current situation where the cost of technical infringement is extremely low and rights protection and evidence collection is extremely difficult, experts in the legal field strongly call for the refinement of the infringement identification standards for AI face-changing at the legislative level, forcing AI synthesis tools to embed "spatial and temporal information identification codes" and blockchain evidence storage mechanisms, and establishing "one-click complaint" rapid processing channels for virtual image infringement on major short video platforms 61.
NFT digital collections conflict with the property rights definition authorised by the Metaverse
Sports NFTs (non-fungible tokens, such as the popular NBA Top Shot video cards or exclusive digital avatars of players) have set off an amazing digital asset frenzy. However, due to the disconnect between the underlying code and actual laws, the qualitative and regulatory attitudes of NFT under the laws of various countries show sharp differences.
In the United States, sports NFTs are often injected with strong financial speculation attributes. The U.S. Securities and Exchange Commission (SEC) is inclined to apply the "Howey Test" in its lawsuit against Dapper Labs (issuer of NBA Top Shot), accusing some NFTs issued unregistered on its platform to allegedly constitute "investment contracts" and essentially "unregistered securities." This makes sports NFTs in the U.S. market face extremely high-level financial compliance risks and administrative litigation pressure 9.
In mainland China, the judicial system resolutely rejects the financialization tendency of NFT. In the first domestic infringement dispute judgment regarding NFT digital collections, the Hangzhou Internet Court made a very clear legal definition: NFT itself is just an abstract information record marked with specific digital content on the blockchain, and works under copyright law are specified as a "digital commodity" with property rights attributes through the object of NFT transactions 62. Digital collections in the Chinese market strictly restrict secondary market circulation and speculation, and place greater emphasis on copyright protection, fan collection and digital aesthetic attributes9.
For athletes seeking to issue digital collectibles, authorizing the issuance of NFTs must be extremely careful to define the ownership of the underlying rights system. Since digital goods have unlimited reproducibility of codes and the sole ownership of certificates on the chain, if athletes blindly produce images of their classic game moments into NFTs for distribution, it is extremely easy to create extremely complex cross-infringement risks with the audio and video producer rights of the official broadcaster of the event and the trademark rights of the club. 9
Legal risks and strict "moral clauses" of social media live streaming
Live streaming has become the most efficient shortcut for retired or active high-profile athletes to quickly monetize their traffic. However, the accompanying administrative penalties and compliance risks have also increased exponentially. According to the regulatory framework of the current Advertising Law, athletes who recommend and certify products or services in their own name in the live broadcast room are strictly defined as "advertising spokespersons" in accordance with the law 63 .
The law has set a red line that cannot be crossed: first, as spokespersons, athletes must personally experience, use the product or receive the service, and false endorsements that "recommend without using them" are strictly prohibited; second, if the live broadcast room sells products that infringe on intellectual property rights, fake or shoddy products, or For more serious cases involving products that do not meet food safety standards, athletes not only face huge civil joint and several liability to consumers, but are also likely to have their illegal gains confiscated and imposed heavy fines by the market regulatory authorities. They may even face devastating administrative penalties such as being completely banned from participating in any advertising endorsements within three years. 8.
In order to minimize risks, brands will inevitably insert extremely strict "Morality Clauses" when signing endorsement contracts with sports stars. This clause originated in the entertainment industry in the early 20th century and has become standard in top commercial contracts. Once an athlete violates social ethics, makes inappropriate political remarks, is suspected of illegal drug use, or is involved in a private life scandal that causes the collapse of his public image, the brand has the right to immediately terminate the contract unilaterally and without liability based on this clause, and forcefully require the athlete to return all paid endorsement fees and bear huge liability for breach of contract 10. For athletes’ professional brokers and legal teams, reviewing the technical compliance of live broadcast platforms, the legality of in-depth back-selection supply chains, and accurately defining the boundaries of force majeure and joint liability in contracts have become the core lifeline of brokerage services64.
Wealth management, tax planning and retirement rights continuation of high net worth athletes
The careers of top professional athletes are very special: their peak period is extremely short, and their income shows highly concentrated and explosive growth characteristics in a very short few years. At the same time, major developed countries around the world impose extremely high personal income taxes on ultra-high net worth individuals. Therefore, how to protect existing huge wealth, avoid high tax burdens, and achieve smooth intergenerational inheritance through legal and complex financial and legal structure design is the ultimate consideration for top athletes' legal and family wealth management teams.
Cross-border tax planning: Image Rights Corporations (IRCs) and compensation deferral arrangements
In the international sports world, it is an extremely common and effective tax avoidance practice to divest personal income by setting up an offshore or local Image Rights Company (IRC). In the UK, the top marginal personal income tax rate for high-income people is as high as 45%, while the corporate income tax (Corporation Tax) is only 19%. Therefore, many top Premier League stars sign two completely different contracts with their clubs: one is a purely employment-playing contract, which is taxed according to high personal income tax rates; the other is a portrait rights licensing contract, in which the club pays this huge "image licensing fee" directly to an independent legal entity actually controlled by the star (i.e., IRC), thereby legally avoiding the high personal income tax difference and exempting both players and employers from huge National Insurance (National Insurance) payment obligations. 34 For international players with "Foreign Domiciled status", a very special remittance basis can be used to intercept the huge commercial endorsement income from overseas in overseas tax havens. As long as it is not remitted to the UK, they will be exempt from paying tax in the UK 34. However, due to the lack of clear statutory definition in statutory law in the UK, this structure is often challenged by severe substantive audits by Her Majesty’s Revenue and Customs (HMRC) on whether athletes “really have substantial commercial goodwill that can be divested” 34 .
In contrast, Canada offers a more structured and transparent tax avoidance model based on statutory law. In view of the short nature of athletes’ careers and the instability of income, Canadian tax law allows the implementation of “Salary Deferred Arrangements” (SDA) and “Retirement Compensation Arrangements” (RCA). Under this model, clubs or sponsors do not directly distribute part of the huge income of athletes during their peak years, but deposit it into specific trust accounts that are strictly regulated. After an athlete retires and his annual income drops sharply and is in a lower progressive tax rate range, the benefits will be gradually distributed over an agreed period of time. This inter-temporal income smoothing mechanism not only legally avoids high tax penalties during the peak period, but also provides strong financial protection for athletes’ post-retirement life and achieves the optimal allocation of personal taxes throughout the life cycle 34.
The establishment of the athlete family trust and the continuation of the retirement business landscape
For super sports stars with annual incomes of tens or even hundreds of millions of dollars, simple tax planning is no longer enough to resist various potential risks. The establishment of a family trust is an essential core tool to build the ultimate wealth firewall. The core demands of top Chinese and overseas athletes in establishing family trusts are mainly reflected in three dimensions:
First, extreme legal risks and debt isolation: In the later stages of their careers, top athletes often engage in complex cross-border business investments, sign huge gambling agreements, or face huge breach of contract claims due to extremely controversial remarks and endorsements. Since trust property has absolute legal independence and bankruptcy isolation properties, once an athlete irrevocably injects his legal salary and endorsement income into the trust structure, this part of the assets will no longer legally belong to his or her personal name, thereby being protected from future potential creditors’ recovery and freezing, ensuring the absolute bottom line of an extremely comfortable life for multiple generations of the family. 66
Second, cross-border tax optimization and estate planning: For top athletes with complex overseas immigration plans, multi-national family members, or extensive allocation of luxury homes and financial assets around the world, professional offshore family trusts can extremely effectively avoid the extremely stringent estate tax and capital gains tax risks in target countries (such as the United States and the United Kingdom) with extremely high tax rates. At the same time, under China’s domestic tax regulatory environment, trust structures can currently play a key role in substantially blocking or deferring personal income tax withholding obligations66.
Third, intertemporal survival and sustainable realization of commercial rights: Retirement definitely does not mean the end of the commercial value of top athletes. Sports giants such as Michael Jordan, David Beckham, and Li Ning have a commercial footprint after retirement that far exceeds their service period. By establishing an asset protection trust, athletes can package and place the ownership of their huge trademark matrix, domain names, and unique digital copyrights (such as the right to adapt their own biographical film and television, and long-term authorisation of exclusive game images) into the trust structure, and hand them over to the most professional trustee institutions and professional managers for divestment and sustainable operations. This fundamentally ensures that after athletes lose the support of exposure to competitive performance, their families can still rely on the accumulated intellectual property barriers and intangible asset matrix to obtain extremely generous and continuous passive business dividends.
Conclusion
To sum up, the commercial rights protection and value development of modern sports stars are undergoing a profound and historic evolution from "passive defence of territorial personality rights" to "active expansion of global digital assets."
In terms of judicial and administrative supervision, although China's current legal system has established a basic rights protection network through the Civil Code, Anti-Unfair Competition Law and Trademark Law, it is faced with the irreconcilable problem of collective official sponsorship and individual commercial endorsement under the national system. Systemic friction requires an urgent need to clarify the principles of ownership and distribution of "commercial personality rights" at the legislative level (such as further improving the Sports Law or issuing a special judicial interpretation), and build an independent, efficient, and fair sports arbitration system with Chinese characteristics to completely quell internal friction. In terms of commercial development, the huge commercial dividends of the modern sports industry are no longer monopolized by stragglers, but are accelerating to elite multinational agencies and players' unions represented by IMG and THINK450. Highly organized collective bargaining (Collective Bargaining), exclusive control of subdivided categories and forward-looking global trademark matrix layout have become the only solution to maximize the interests of athletes. In the dimension of cutting-edge technological change, the advancement of digital technologies such as AI deep forgery, Web 3.0, and the Metaverse have completely broken down the barriers between real people and virtual digital avatars. The comprehensive arrival of athletes' virtual images, sound data and digital collections urgently requires global judicial authorities to continue to expand the boundaries of protection of personality rights and intellectual property rights. At the same time, brands are required to preemptively embed strict digital rights confirmation clauses and extremely strict moral breach constraints into the heavy sponsorship contract system.
Future super sports stars are by no means just lone heroes who challenge the limits of human physical ability on the field. Behind them must be an indestructible business fortress built by global venture capital, top sports legal services, cutting-edge digital technology and offshore family trusts. In this irreversible process, the dynamic balance between refined legal regulation and commercial profit-seeking logic will become the core cornerstone that determines the long-term prosperity of this trillion-dollar sports market.
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