A supplements brand posts a photograph of a footballer celebrating a goal on Instagram, with its logo over it and a discount code. A betting company uses an athlete’s face in a customer acquisition advertisement. A shop sells shirts bearing the name and number of a club’s rising talent. None of them asked permission, and all of them will say the same thing when challenged: that the athlete is a public figure.
That argument is the most widespread confusion in this field, and as formulated it is wrong. It is worth understanding why, because everything else follows from it.
Public prominence permits reporting, not selling
The right to one’s own image is protected in Spain by Organic Law 1/1982. Its Article 7 treats as an unlawful interference both the capture or publication of a person’s image (paragraph 5) and, separately and expressly, the use of a person’s name, voice or image for advertising, commercial or analogous purposes (paragraph 6).
Article 8.2(a) does introduce an exception for those holding public office or a profession of public prominence or projection, where the image is captured during a public event or in places open to the public. A professional athlete falls within that category, which is why a newspaper may publish a photograph of them playing without seeking permission.
But that exception protects reporting, not commercial exploitation. Prominence justifies an athlete’s image appearing in the match report; it does not justify a brand using it to sell its product. The moment the image stops illustrating news and becomes associated with a product, a service or a promotion, Article 7.6 applies and the exception does not.
Hence the practical rule: the question is not whether the athlete is well known, but what function their image performs in the publication.
What can be claimed, and how much
The law here is more generous than is usually assumed.
Article 9.3 presumes damage whenever the unlawful interference is established. The harm does not have to be proved: the use does. Compensation covers moral damage, assessed in light of the circumstances of the case and the seriousness of the interference, taking into account the reach or audience of the medium.
One element deserves emphasis because it changes the arithmetic considerably: the same provision requires account to be taken of the profit obtained by the party causing the harm. The claim is therefore not limited to what the athlete would have charged for licensing their image; it extends to what the infringer earned by using it without paying. In large-scale commercial uses, that difference is usually the bulk of the claim.
Alongside compensation, the claimant may seek cessation of the interference, removal of the content and, where appropriate, publication of the judgment.
The deadline that loses most cases
Here is the error we see most often: the actions lapse after four years from the moment the entitled party could have brought them, under Article 9.5.
And it is four years of caducidad — a lapse period, not a limitation period. That means it is not interrupted by a formal demand, an out-of-court claim or a negotiation. It runs regardless. Many athletes discover an old use of their image when changing agency or reviewing contracts, and by then the period has been consumed in conversations that stopped nothing.
Where a claim is approaching the limit, the prudent course is to file and negotiate afterwards.
Three situations specific to sport
Conflicts with the athlete’s own sponsorship. An unauthorised use does not only harm the athlete as against the infringer: it can create difficulties with their own sponsors. If they hold an exclusive with one drinks brand and appear associated with another, even without consenting, the problem becomes twofold. In such cases the first call should be to the sponsor, to document that the use was contrary to the athlete’s will — before the call to the infringer.
Collective image rights. In team sports there is usually a partial assignment of image rights to the club or the competition, for joint exploitation in official kit and in the team context. That assignment has limits, and does not cover individualised use of the athlete to promote a third party. Before claiming, check exactly what was assigned, because the infringer’s answer will almost always be that a licence existed.
Underage athletes. Protection is reinforced: consent is given by the legal representatives, subject to the requirements of Article 3 of Organic Law 1/1982, and the public prosecutor intervenes in the defence of their rights. In youth and academy sport, where images circulate very freely, this is particularly sensitive ground.
What to do, in order
First, secure the evidence. Full screenshots with date and URL visible, identification of the profile or domain, and a record of reach: follower numbers, engagement, duration of the campaign. Where the amount justifies it, a notarial record or a content certification service. Warning the infringer before the evidence is secured usually means the content disappears, and the claim with it.
Then, characterise the use: informative or commercial. The whole approach depends on that characterisation.
Cease-and-desist letter, precisely identifying the content and putting the infringer on notice of Article 9.3. In a high proportion of cases, a well-drafted letter resolves the matter without litigation.
Notice to the platform through the notice-and-action mechanism of Regulation (EU) 2022/2065 (Digital Services Act), where the content sits on a social network or a marketplace. This is best done in parallel with the letter, not after it.
Proceedings for unlawful interference, seeking cessation, removal and damages. Where the infringer is a competitor in the same market, unfair competition actions may also be available, and where the name is registered as a trade mark, trade mark actions.
What is worth having in place beforehand
The best claim is the one prepared before it is needed. Registering the word mark covering the sporting name, knowing precisely which image rights have been assigned and to whom, and maintaining a minimum system of monitoring mentions and unofficial merchandise, turns a diffuse reputational problem into a manageable legal matter.
At Ferrer-Bonsoms & Sanjurjo we advise athletes, agencies and clubs on the protection and exploitation of image rights: reviewing assignments, cease-and-desist letters, content takedowns and damages claims. If you have found a use you did not authorise, get in touch and we will review it.
This article opens our series on sport and intellectual property. Coming next: sponsorship contracts with content creators, and the use of athletes’ image and voice through artificial intelligence.