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Yao Ming - Ka Ching Ka Ching!
From time to time, the sports world witnesses the emergence of a true giant. That description could not be more apt in the case of Yao Ming.
Many New Zealanders will fondly remember last year's world basketball championships, which witnessed the tremendous success of New Zealand's Tall Blacks. That tournament also served as the stage for a young basketballer from the Chinese national team to strut his stuff. Following the tournament, Yao Ming was drafted into the squad of an NBA basketball team - the Houston Rockets. His successful rookie season has confirmed him as a true star of the game.
For Yao Ming - who stands 7 feet 5 inches, and has earnt the nickname "Great Wall" - one would imagine that nothing in life has been normal. That is now also true of his employment relationship - and its commercial consequences.
For most employees, work involves turning up at one's workplace and performing some defined services for one's employer. That is, of course, something which Yao Ming does for each of the two basketball teams with whom he has an allegiance - being the Chinese national team, and the Houston Rockets. The issues surrounding Yao Ming do, however, run deeper.
Each of Yao Ming's respective teams claims to own some intellectual property in his image. For example, the Houston Rockets use images of Yao Ming in their team uniform to promote the team. Similarly, the Chinese national side has sought to use Yao Ming's image in its team's strip for its own purposes.
To complicate the situation, however, Yao Ming has agreed to individual endorsements (not necessarily associated with either of his two teams). It is this that has led to a significant issue.
In February of this year, Yao Ming signed a multi-year endorsement contract with Pepsico to promote one of its products - Gatorade. One might image that, amongst the other motivations for wishing to obtain Yao Ming's endorsement of its product, Pepsico would have its eye on the 1.3 billion consumers in China (who are, as one might expect, generally enthralled by the international success of this sporting superstar).
However, the Chinese basketball team has entered into a sponsorship arrangement with Pepsico's principal competitor, Coca-Cola. Amongst other things, that company has begun to use Yao Ming's image (together with that of two of his Chinese national team mates) on its cans of products in China.
This is a situation which has left both Yao Ming and Pepsico quite upset - and seems to be destined to result in litigation of some sort.
Regrettably, commercial clashes such as this are not altogether uncommon in the sporting world.
At the 1992 Olympics the US basketball "Dream Team" were required to wear Reebok tracksuits - despite several members of the team (including Michael Jordan) having significant commercial arrangements with Nike. The solution? Nike-sponsored team members wore an American flag about their shoulders each time that they were required to wear their team tracksuit in public. This patriotic gesture resulted in the practical obscuring of any Reebok brand logos.
More recently, a significant issue arose prior to the Cricket World Cup in South Africa. A condition of participation in that tournament was the association of players with the tournament's principal sponsors. In some cases, that association resulted in conflict for individual players who had personal endorsements with competing commercial entities.
For most employees, these complicated issues of rights to images - and the consequential right of assignment to commercial entities - are unlikely to arise in the context of an employment relationship. Employment law does, however, offer some guidelines as to the appropriate way to deal with such matters.
As a general rule, it is accepted that in order for an employer to claim intellectual property in respect of something generated out of the employment relationship, the employer must show that the "thing" is developed or used during the course of the employee's employment duties. In Yao Ming's case, the Houston Rockets would probably lay fair claim to images of him in a Houston Rockets team uniform. These are images of Yao Ming which are generated in the course of him performing his work for that employer. A separate issue arises, however, as to whether the Houston Rockets may use Yao Ming's individual image - or whether it is necessary for the organisation to use it as part of a team endorsement or promotion (necessarily involving more than just one player).
On the other hand, however, Yao Ming obtains the intellectual property in his own image - independent of any team logos or uniforms. He is free to exploit that image by entering into commercial arrangements in respect of it.
In summary, therefore, employment law does not necessarily provide an answer to the present dilemma. Each party has a legitimate right to use of certain images. There is, however, an inevitable commercial conflict by virtue of each party's use of its particular property.
We will have to await the outcome of this contest of the soft drink giants over the "Great Wall".
