Examining breach of contract disputes between sporting-goods manufactures and sportspersons

Nike European Operations Netherlands BV v Rosicky [2007] EWHC (Ch) is a legal case involving an interim injunction preventing Arsenal midfielder Tomas Rosicky from wearing another manufacturer’s boots. In 2005 Rosicky signed a two-year deal with Nike to wear their Total 90 Supremacy football boot. The contract between Rosicky and Nike was made in the Netherlands and governed by Dutch law which stated that Rosicky would wear only Nike merchandise for the length of the contract which was for an initial two year period. Also Nike had the ability to extend the contract for another two years if they wished for Rosicky to continue to be associated with their product. In return Rosicky would be paid a sum of money as an endorsement or sponsorship.

In 2007 and after the period for Nike extending the contract had expired Rosicky signed a deal with one of Nike’s competitors Puma. Again he agreed to wear Puma merchandise, specifically Puma v-Konstrukt II football boots, in return for a sum of money and he began wearing them during pre-season friendly games for Arsenal FC. Nike claimed that it had exercised the option by writing to both Rosicky and to his agent. Rosicky claimed that he had not received notice until after the relevant period had expired. By that time, however, Rosicky had already signed the new contract with Puma.

Nike accused Rosicky of breaking their contract, and as a result the Czech midfielder refused to continue wearing Nike merchandise and continued to wear Puma’s merchandise in accordance with his new contract. Nike brought an action for breach of contract in the Netherlands and applied for an interim injunction in England to stop Rosicky wearing Puma’s boots rather than their own while playing for Arsenal or on international duty for the Czech Republic.

Allowing the application and granting the injunction, Justice Patten decided that damages were not an appropriate remedy for either party. The marketing value to Nike of having Rosicky wear its boots could not be assessed, while the allegation of breach of contract affected Rosicky’s reputation, damage to which was also not best compensated in monetary terms. However, Nike had a sufficiently strong case to justify seeking relief and it was likely to suffer more damage than Rosicky if the status quo was not preserved until trial in the Netherlands.

This simple contractual dispute highlights that by entering into contracts sportspersons limit their choice of equipment and may thereby put themselves at a sporting disadvantage. Yes to some fans a football boot is just a football boot and only a bad workman would blame his tools. Yes footballers are paid huge sums of money simply to don footwear that many of their fans cannot afford but they may also be restricted from future freedom of choice.

Given the number of recent football related toe injuries some commentators had expected Rosicky to have argued that as a skilled performer who was dependent on a high level of confidence in his equipment, that his personal choice of the boots that he felt were the most efficacious and likely to protect him from foot injury would override any contractual entitlement to the exposure of the brand that Nike may have. This may sound like a decent argument but to me I think it unlikely to have been accepted bearing in mind Nike’s standing in world sport for quality of products.

Of course regardless of the legal issues this matter raised it also led to the unusual spectacle of a player being forced into wearing blacked-out boots for the opening games of the 2007/08 Premiership season. I will be honest and say that at the time I did not notice at all. If I had done I would probably thought it refreshing to see a player wearing something in a non-fluorescent colour.

Note: I have tried quite hard to find out the outcome of the legal proceedings held in the Netherlands between the parties but have so far been met with no success. If anyone who happens to speak Dutch an awful lot better than I do can provide me with the answer then it would be much appreciated.

Disclaimer: The views expressed are those of the writer and this article does not constitute legal advice.

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