Don't mention the boot war
A dispute between the German Football Association and its players could have implications for international competition
The German Football Association (“DFB”) recently entered into an exclusive contract with Adidas to supply the national side with all sports equipment, including boots and footwear. The DFB national coach, Jürgen Klinsmann, said: “There will be nobody representing the national team without wearing Adidas boots. If any player says that he must wear an alternative [brand], he can go home and watch the game on television.”
The “Schuh-Krieg” (boot war)
Traditionally kit-supply agreements have expressly excluded footwear, ordinarily regarded as tools of the players’ or athletes’ trade. Many players have individual exclusive agreements for footwear, requiring them to wear one brand whenever competing and irrespective of for whom. The repercussions for the DFB are that the host team at the 2006 World Cup could be without up to 12 key players due to the “Schuh-Krieg”. Klinsmann’s stated position suggests those players will not play, or will have to terminate (probably unlawfully) their own agreements or act in breach by wearing Adidas boots. If such a situation were to arise in Scotland, the legal issues could include interdict, damages and procurement of breach of contract. In sporting terms, if a national association fielded a team that may not be the best available, the sporting spectacle may be devalued, in turn affecting the organising body as rights-holder, the value of its product and the credibility of international competition.
Players are employees of their clubs. A boots requirement, introduced by a club in the appropriate manner, could constitute a legitimate term of the player’s contract of employment. On the other hand, players are not free to play for a country of their choosing and play only if eligible and selected. Selection for representative international honours is regarded as a privilege and not a right.
International teams have previously not sought to qualify the criteria for selection, preferring to select the best available players, taking into account domestic fixtures, injuries etc. There have even been examples of players’ commercial demands being accepted in preference to team arrangements. In 1974, Dutch legend Johann Cruyff refused to wear the national strip with Adidas’ stripes and logos because Puma sponsored him. The KNVB relented and Cruyff wore a two-stripe version. Whilst it may seem peculiar that a national association would risk restricting its player pool size, as the DFB has threatened, closer consideration suggests good reason.
The good of the game
At the highest level of participation, internationalists tend to wear custom-made boots and the comfort factor that previously categorised footwear as “tools of the trade” is less of a justification compared to commercial considerations. Players often agree six- or seven- figure sum deals to wear a manufacturer’s boots, whereas they earn little if anything for international honours. The crux of the impending dispute between the DFB and players is simply competing commercial interests. The governing body’s stance is that exclusivity is offered to the kit and bootwear supplier in return for increased consideration, which is used for the benefit of the sport within its jurisdiction. An individual deal, on the other hand, benefits the player, and the money involved leaves the game.
Recent decisions concerning similar issues have been resolved without any indication that “official sponsor” deals are to be prohibited, provided there is no unjustified qualitative association placed on the supply of goods (see Danish Tennis Federation v Commission OJ  C 138/6;  4 CMLR 885). Therefore any challenge by the player(s) would likely face difficulty. However, the kitwear supplier and national association would need to be careful about the way images and/or names of players wearing the manufacturer’s boots were presented, as an action may lie in passing off, for example if a player’s image or name was used to advertise and sell the kit and boots.
If the DFB/Adidas deal heralds an increase in exclusive sponsorship deals for clubs and international teams, and it is suggested that it may (the Bradford Bulls rugby league champions recently signed an exclusive kit and boot deal subject only to honouring players’ existing deals), this may lead to a fundamental change in kit-supplier and sponsorship culture; exclusive partnering with teams may increase but exclusivity with individual players decrease. Players will of course seek to resist this change because their own agreements will be less valuable.
International federations and governing bodies should monitor the issue closely, because if “player power” is maintained and players were to prefer commercial endorsements rather than making themselves available for international selection, consideration may need to be given to the regulation of national associations entering into exclusive deals (similar to the current regulation of kit-advertising restrictions), for the protection of the overall credibility and marketability of international sporting competition.
Bruce A Caldow, Sports Practice Group, Harper Macleod LLP