The self-marketing of athletes is not as developed in athletics as it is in football, for example. But it is precisely from this that athletics can learn and avoid conflicts. WIESCHEMANN Attorneys at Law have been able to resolve a conflict between NIKE, PUMA and TV Wattenscheid at least temporarily.

For the athlete taking part in a competition in a club, a conflict regularly arises between the rights he has to transfer to the club within the scope of the club sponsoring and the rights he wants to transfer to his own sponsors within the scope of his individual marketing. Sports management and sports law have developed an instrument in the sport with the highest value creation potential and the highest capitalisation, football, which takes into account the interests of athletes, clubs and sponsors or suppliers, because all parties involved are aware of the conflict.

There is no doubt that the knowledge is also available in athletics among the sponsors and equipment suppliers; it is the same as in football, but less so among the athletes in athletics and their managers. This seems to have been exploited by Nike.

The story is public and therefore quickly told through the following article in the WAZ. NIKE was the club supplier for TV Wattenscheid 01 and the club assured NIKE that all athletes would start with NIKE equipment and clothing. It was necessary for the club to be granted the right by its athletes to determine with which equipment they would compete.

After that, NIKE had the rights, which NIKE knew the athletes had already assigned to the club, reassigned to the athletes under an individual outfitter contract. Thus the legal conflict was already present, even if it did not have to be carried out as long as NIKE was an individual and club supplier in one person.

However, this changed when NIKE terminated the contract with TV Wattenscheid 01 and later PUMA became a club outfitter and sponsor. PUMA and ADIDAS are more consensus-oriented in such situations and seek a balance of interests. NIKE’s contract with the athletes, on the other hand, spoke a clear language: only NIKE, no foreign logos on the clothing. A demand that the athletes were simply unable to meet.

Legally, NIKE’s position is hardly questionable. In essence, NIKE promises the athletes an economic advantage (sponsorship money) in the individual supplier contract, so that they break their contractual obligations to the club PUMA to carry equipment and the LOGOs of the other sponsors and instead use equipment from NIKE. This understanding places the contract in the area of criminal liability risks due to the new version of § 299 StGB, which has not yet received the necessary attention in professional sport. I recommend reading the essay by Prof. Kubiciel in SpuRt 1/2019 page 17ff.

In any case, the behaviour is anti-competitive but – even more – simply not very fair towards the affected athletes and not very likeable for the brand.

The dispute has not yet come to a complete conclusion, even if the first step before the German Championships has led to a relaxation. Athletes in athletics, however, are strongly advised in future to clearly distinguish between the granting of rights to the club and individual sponsors and to take into account the interests of all parties involved.

The following article by Melanie Meyer was publisher on 03.08.2019 in the WAZ:

TV Wattenscheid wins victory with signal effect
BOCHUM. A change of supplier brought athletes into trouble. Just in time for the German Championships there is a solution for the TV Wattenscheid.

Daniel Jasinski will look different on Saturday. When the discus thrower of TV Wattenscheid enters the ring at the German Championships in Berlin’s Olympic Stadium, he will not wear a Nike jersey as usual. Because his club changed supplier at the beginning of the year, he will compete in puma dress. The fact that the Nike athlete Jasinski is allowed to compete in Puma is the result of a tenacious argument, a result with a signal effect.

Dispute over sportswear
But one thing at a time. For the new year Nike had retired after years of cooperation as supplier of the athletics club. Puma replaced them. The problem for some athletes: In addition to the contract with the club, they also had private contracts with Nike. “Nike had noticed at the time that some athletes were particularly successful and therefore had a lot of advertising potential,” explains lawyer Christof Wieschemann. In addition to Jasinski, hurdler Pamela Dutkiewicz, long jumper Sosthene Moguenara, medium distance specialist Marius Probst and long-distance runner Hendrik Pfeiffer are affected. But only Jasinski starts in Berlin. “Nike demanded to fulfill the individual contract, which was concluded according to the club contract, and to start exclusively in the Nike jersey.

Wattenscheid manager Michael Huke was desperate. “As a club, we always have the interests of the athletes in mind,” he reports. “But we also have an obligation to our supplier.” With the help of Wieschemann, we came closer to a solution. The Bochum expert for sports and trademark law says: “What Nike wanted is not permitted under competition law – so we opened the door for them and made a proposal. It was agreed that athletes who represent the club are allowed to compete in the Puma jersey – as in German championships. They wear Nike at commercial events at home and abroad. With Adidas, by the way, this regulation has been in place for a long time.

Sensitizing other clubs
A few days ago the association received the written confirmation – just in time for the DM. “It is a case with a signal effect,” says Wieschemann. “It is intended to sensitize clubs and athletes to ask whether contracts collide with each other and comply with the applicable law in Germany.