The sponsorship contract has a specific breach regime under the Spanish General Advertising Act. A little-explored route that may offer advantages over the general regime of the Civil Code.
An athlete with a digital presence is subject to three overlapping layers of obligation: those imposed by their club or federation, those undertaken towards their personal sponsors, and those binding them to each platform. All three were drafted without knowledge of the other two. Disputes in digital sponsorship are therefore not unpredictable: they follow a pattern, and they almost always arise at the same seam.
What follows are the four points at which it breaks, and what Spanish law offers at each.
1. The statutory regime almost nobody invokes
It is worth starting here, because it changes the strategy of any claim.
Article 22 of Ley 34/1988, the General Advertising Act, defines the advertising sponsorship contract as one by which the sponsored party, in exchange for financial support for its sporting, charitable, cultural, scientific or other activity, undertakes to collaborate in the sponsor’s advertising. And it adds something usually overlooked: that contract is governed by the rules of the advertising dissemination contract, in so far as they are applicable to it.
What that refers to is article 19 of the same Act. Save in cases of force majeure, where the medium does not disseminate the advertising, the advertiser may require later dissemination on the same terms or terminate the contract with restitution of what was paid for the advertising not disseminated; and in both cases the medium must compensate the damage caused. The rule also runs the other way: where the failure to disseminate is attributable to the advertiser, the advertiser must compensate the medium and pay the price in full, unless the medium has filled the reserved space with other advertising.
The practical consequence matters. Faced with an athlete who does not publish what was agreed, this remission allows the consequences set out in article 19 of the General Advertising Act to be invoked, where they are applicable to the obligation breached, without the claim being necessarily confined to the general regime of article 1124 of the Civil Code. It is a route most sponsorship claims never mention.
It should be bounded honestly. Article 22 refers across “in so far as they are applicable”, which requires examining which obligation was breached and how the contract is built: the transposition is arguable where the obligation was to disseminate content, and much less evident where it was to wear a logo on kit or attend an event. Nor should the result be presented as automatic: the scope of that remission in sports sponsorship is not settled with the clarity with which the statutory text is. And nothing prevents the contract from regulating the consequences of breach expressly; where it does, what was agreed applies. What is unwise is to leave it silent.
2. Exclusivity: the problem is not the clause, it is its perimeter
The existence of an exclusivity clause is almost never disputed. Its edges are, and there are four of them.
The sector. “Shall not promote products of competing undertakings” defines nothing. Is a bottled water brand a competitor of an isotonic drinks brand? What about a supplements brand? If the list is not closed, the argument is guaranteed.
The cut-off date. The perimeter of competitors changes by itself: a company that was not a competitor at signature may become one two years later through an acquisition. If the contract does not say whether the list is the one existing at signature or the one in force at any given time, both parties will be right.
Territory and channel. An exclusivity designed for Spain does not resolve what happens to content published on a global platform, which is all digital content.
And the collision with the club or federation. This is the most frequent and the least addressed. The athlete has usually committed their image rights within the competition sphere, and the personal sponsor rarely knows the extent of that commitment. The question to ask before signing is not what exclusivity is being granted, but what exclusivity remains available to grant.
3. Social media: three distinct problems treated as one
The first is the identification of advertising. Article 26 of Ley 3/1991 on Unfair Competition treats as misleading, and therefore unfair, the inclusion as information — in the media, information society services or social networks — of communications promoting a good or service that are paid for by the trader, without their advertising character being clearly specified, whether in the content itself or through clearly identifiable images or sounds.
And here a widespread confusion needs undoing. Real Decreto 444/2024 regulates “users of special relevance”, and its requirements are cumulative: there must concur, at the same time, gross income in the preceding year of at least EUR 300,000 derived from activity on video-sharing platforms, as provided for in the regulation, and one million followers on a single platform at some point in the preceding year or two million across all of them, and at least twenty-four videos published or shared in the year. These are high thresholds, and they may leave outside that specific regime a good many athletes with a substantial social media presence.
But falling outside that specific regime does not exempt anyone from the general obligations to identify advertising, and that is where the real error lies: article 26 of the Unfair Competition Act applies regardless of the number of followers, whether a hundred or a hundred thousand. The rule usually breached is not the influencer one; it is the general one.
The second is ownership and permanence of content. Whose posts are they? May the athlete delete them the next day? Is there an obligation to keep them up during the term, and what happens on termination: are they removed, retained, relabelled? A sponsorship that buys reach without agreeing permanence has bought something that can disappear with one click.
The third is the right to one’s own image, and it is of a different nature. Article 2(2) of Ley Orgánica 1/1982 provides that consent to the intrusion is revocable at any time, with compensation payable where appropriate for the damage caused, including justified expectations.
This means the athlete may revoke consent during the term of the contract, without prejudice to the compensatory consequences that may follow from that decision and to the contractual liabilities that subsist in respect of their other obligations. What the sponsor cannot do is simply impose the continuation of a use of the image whose consent has been validly revoked. It is a structural asymmetry that no contract eliminates, because the right cannot be waived; what the contract can do is regulate in advance the economic consequences of revocation, within the applicable legal limits.
And it operates in the other direction with equal force. Article 7(6) treats as an unlawful intrusion the use of a person’s name, voice or image for advertising, commercial or analogous purposes. So use of the image after revocation, or once the contract has ended, will be unlawful if no other valid title authorises it — and the position is then not one of mere contractual breach but of the regime of article 9, under which damage is presumed once the intrusion is established, compensation extends to moral damage, and the profit obtained through the intrusion may be claimed. The actions lapse after four years.
4. Termination: what the clause promises and what a court will grant
Conduct or morality clauses are the sponsor’s usual exit when behaviour off the field becomes a problem. Their typical defect is to make the trigger a reputational judgment — “conduct damaging the sponsor’s image” — which hands a subjective assessment to the judge. An objective, verifiable and proportionate trigger is applied; a reputational clause is argued about.
Penalty clauses are almost always argued about the opposite way round from how people assume. It is true that article 1154 of the Civil Code allows a court to modify the penalty equitably where the principal obligation has been partly or irregularly performed by the debtor. But the case law has established something decisive for the drafter: where the penalty clause was agreed precisely for the breach that has occurred — even if that breach is partial or irregular — the moderating power does not come into play.
Nor is it enough, to justify moderation, that the penalty exceeds the damage actually caused, even where the difference goes beyond what would be proportionate to its punitive function: pacta sunt servanda governs. Case law has also contemplated, exceptionally, moderation by analogy where unforeseeable changes in circumstances produce an extraordinary disproportion between the damage actually caused and what was reasonably foreseeable when the penalty was agreed.
The practical reading is the opposite of the intuitive one. A generically drafted penalty clause may be exposed to moderation; one drafted for a specific, contemplated default — failing to publish the agreed number of posts, breaching exclusivity with a listed competitor — is, in principle, applied as agreed. Precision in drafting is not a precaution here: it strengthens the enforceability of the penalty.
And there is a final asymmetry. Termination does not undo image uses already made, does not return the exclusivity time already consumed, and does not take down content that remains published. Exit clauses that regulate only money therefore resolve half the problem.
What to agree, one line each
The exclusivity perimeter, with a closed list of competitors and a declared cut-off date. The regime for posts: ownership, minimum permanence, and the obligation to remove or retain on termination. The consequences of revoking image consent, regulated in advance within the applicable legal limits, because the right to revoke cannot be excluded. Objective termination triggers, not reputational ones. Penalty clauses tied to specific, contemplated defaults, for the reason given above: a generic penalty may be exposed to moderation, while one specifically agreed for the breach that occurs is, in principle, applied as agreed. And express regulation of the consequences of breach — publication obligations, cure periods, restitution of sums paid, damages and grounds for termination — having regard both to the regime of the General Advertising Act and to the general rules of the Civil Code that apply.
Six decisions, taken in an afternoon at signature — and if they are not taken, they decide themselves at the point when agreement is no longer possible.
Note: this analysis is general in nature and does not constitute legal advice on any particular contract. The application of the advertising dissemination regime to sponsorship operates “in so far as” its rules are applicable, which requires examining each obligation in the specific contract; and whether a penalty clause is moderated depends on its drafting and on the circumstances of the breach.
Sources: Ley 34/1988, General de Publicidad, articles 17, 19 and 22; Ley Orgánica 1/1982, articles 2(2), 7(6) and 9; Ley 3/1991 on Unfair Competition, article 26; Real Decreto 444/2024, articles 2, 3 and 4; Spanish Civil Code, articles 1124 and 1152 to 1154.