Written by Alex Harvey

Over the past couple of years we have seen a number of sports rights holders feature in all-access, behind-the-scenes documentary series. Manchester City, the All Blacks, Sunderland AFC and Formula 1 are just a few of the names which immediately spring to mind, with Borussia Dortmund, Leeds United and Chelsea Women recently announcing that they will be next to jump on the bandwagon.

This article will consider some of the commercial drivers behind this recent trend and then go on to look at what really goes on behind the scenes (from a lawyer’s perspective).

Engaging with fans

Rights holders are constantly exploring new ways to engage with fans; particularly a newer and younger audience with ever-changing consumption habits. Clubs have experimented with various strategies, including innovative match-day experiences, a growing presence on social media, and even a move into the esports space. These fly-on-the-wall documentaries fit neatly into this wider industry trend.

This type of content is proving popular as it treats fans to the authentic, behind-the-scenes access which they so desperately crave. Gone are the days when fans simply turned up at the weekend to watch their team - sports stars are now as much celebrities as they are athletes and fans are desperate to know what goes on behind closed doors. Which players are best mates? Who plays the funniest pranks? Who are the characters in the backroom staff?

Man City’s ‘All or Nothing’ documentary is filled with snippets of gold-dust for the new generation of fans; from Benjamin Mendy’s high-spirited road to recovery to the constant joking around of their popular kitman, Brandon Ashton. Similarly refreshing moments are found in the All Blacks documentary, where the team bus driver takes us through the (almost comical) hierarchical nature of the team bus seating plan.

These stories are what it’s all about for the modern-day fan - and the rights holders know it.

Building a global entertainment brand

Rights holders now see themselves as much more than just traditional sports teams and many of the bigger football clubs in particular have gradually evolved into 360° entertainment brands. As part of this broader trend there has been a growing focus on creating innovative content - Southampton’s 2019/20 kit launch is a recent example, with the club producing a brilliant parody video of Fyre Festival.

The behind-the-scenes documentaries are a particularly appealing content strategy because of the global reach of Netflix and Amazon. The two OTT platform giants are commissioning and streaming the series to their worldwide audiences and the documentaries therefore provide rights holders with the perfect opportunity to amplify their brand on a global scale. With a ready-made script, an existing superstar cast and a commissioning platform funding the project, the potential benefits can also come at a relatively low cost.

Sunderland 'Til I Die is a great example. A club now playing in the third-tier of English football (and not benefiting from the media rights revenue or eyeballs of the Premier League) is suddenly able to push out its brand to the 148 million Netflix subscribers around the globe - to put this into perspective, Sunderland has a population of just over 275,000. This increased visibility can have significant knock-on effects on commercial revenues, with the club becoming a more attractive proposition to potential sponsors.

Indeed, Sunderland recently announced its first ever sleeve sponsor and is believed to be in talks with a potential stadium naming rights sponsor for next season. Just how much of this is down to their documentary, we’ll never know – but you can be sure it played a part.

Legal insights: what really goes on behind the scenes?

1. The flow of rights

The first thing to understand is how a documentary series is actually structured. Who are the key stakeholders and how do the IP rights flow through them?

i. Players/Staff - it all starts with the players and staff who appear in the series. Each of them will own the rights in their image and will need to consent to the use of their image in the series. This will often be done by way of a simple release form; either to the club or production company (see the clearances section below for more info).

ii. Club/Rights Holder - a football club, for example, will own various IP rights in the club name, badge, kit, stadium and other club trademarks. All these rights will need to be licenced up the chain to the production company for its use in the documentary.

iii. Production Company - the production company will create the documentary, mostly using its own behind-the-scenes footage. It may also need to licence in-game footage from third parties, such as UEFA or the Premier League, who will usually expect to be paid a licence fee in return.

iv. Commissioning Platform - once the documentary has been finalised, the full package of rights will be passed on to the commissioning platform (i.e. Netflix or Amazon) who will stream it onto our screens.

2. Editorial Control

Whilst there are clearly benefits to sports rights holders featuring in a documentary, they must recognise the inherent risk of exposing their brand when they hand over creative control to a third party. This will often lead to complicated and lengthy negotiations at the outset, with the club, production company and commissioning platform all battling for editorial control of the series.

The commissioning platform will almost always end up with final approval rights, but the club will certainly want to ensure it has some protection. Here are some of the compromise solutions which are not uncommon:

· The club having the right to veto particular scenes - Man City reportedly had the right to veto any scenes which divulged commercially sensitive information or personal details;

· The club having approval rights or consultation rights over the script and storyboard;

· The club having the right to restrict camera access to particular training sessions, team meetings and matches of their choice;

· A cross-party group being set up to make decisions on all creative aspects, with specific roles and powers designated to individuals from all parties; and

· A panel of independent lawyers being established to decide if particular scenes are damaging to the reputation/public image of the club or its players.

Whatever is eventually agreed, it’s crucial that the details are well-documented in a contract before any filming begins. Without this contractual certainty, disputes are far more likely to arise further down the line.

3. Clearances

Obtaining clearances for a sports documentary can be a time-consuming and expensive task, with a huge variety of IP rights needing to be cleared. This will usually include image rights (players and staff), music (publishing and recording), club trade marks, sponsors’ trade marks, match footage, in-stadia advertising and stadium naming rights.

Getting the consent of the players can be particularly problematic, especially where the players (and their agents) try to procure a fee in return. One thing for clubs to consider is whether they can offload this responsibility to the production company, essentially bypassing themselves in the flow of rights and, crucially, passing on liability. The production company may accept this responsibility but only on the basis that the club facilitates the necessary meetings with the players/agents.

There are question marks over whether consents are also required from opposition players and managers who appear in the series. Jose Mourinho, who featured extensively in the first episode of City's documentary, jokingly suggested that he could ask for some royalties, and he may actually have a point. It will certainly be interesting to see if this issue crops up in the future.

4. Other Considerations

Access : the production company, and more specifically their camera crew, will need to be given access to the club's stadium and training ground. It may be more difficult, however, to ensure that they are granted access to opposition stadiums. Indeed it was reported that Leeds United’s filming crew were denied access to Bristol City’s Ashton Gate earlier this year.

Image Rights Contracts: could clubs start using their players’ image rights deals to avoid having to get their separate consent for a behind-the-scenes documentary? Without going into too much detail, when a player signs for a club they will enter into an image rights deal and grant the club the right to use their image in certain ‘promotional’ contexts (for more information, have a read of this blog). If these documentaries are to become the norm, it may be sensible for clubs to think ahead and start specifically including behind-the-scenes documentaries within the grant of rights in those image rights contracts.

Conclusion

Featuring in a behind-the-scenes documentary is quickly becoming a popular content strategy for sports rights holders, allowing them to drive fan engagement on a global scale. With a growing appetite amongst younger audiences for this type of exclusive content, it’s likely that this trend will continue over the coming years and rights holders must remain cognisant of the various legal and IP issues at play.

Alex Harvey is a trainee lawyer at Sheridans. You can follow him on Twitter here or contact him at alex.harvey@sheridans.co.uk