Brazilian footballers take on video games in legal battles

The video game market in Brazil is already the world’s 13th largest, worth over USD 1.5 billion a year according to market research consultancy firms. In a matter of a decade, the industry doubled in size. Projections suggest it could be three times larger in 2030. 

While globally popular freemium battle royale games such as CrossFire, League of Legends, and Call of Duty: Warzone have a strong market in Brazil, the country’s best-selling game is EA Sports’ FIFA football sim series. More than six million units have been sold in Brazil since 2014, mainly for Playstation 4 and Xbox One consoles.

But while leading football games FIFA and Pro Evolution Soccer enjoy a huge market in Brazil — the so-called “land of football” — both games have not exactly enjoyed smooth sailing in South America’s biggest country. Combined, FIFA and Pro Evolution Soccer are currently facing over 70 lawsuits in Brazil’s Supreme Court.

Current and retired footballers have sued the games for the alleged misuse of their image. According to the players, they never gave their express consent for the use of their name and likeness.

Video game developers stage licensing race

Licensing has always been an issue in football sims. Traditionally, the FIFA series led the way, snapping up the rights to include clubs and players from the major European leagues, as well as official FIFA and UEFA tournaments. Meanwhile, competitor Pro Evolution Soccer was forced to include teams with fake club names and generic players, often hilariously close to their real-life counterparts.

In earlier versions of Pro Evolution Soccer, Brazilian national team stars Ronaldo and Roberto Carlos were included in the game as “Ronarid” and “Roberto Larcos.”

In recent years, Pro Evolution Soccer — developed by Japanese company Konami — has made great strides in obtaining licenses for South American football. The most recent offering from the series, eFootball PES 2021, includes licenses for the Brazilian national championship, as well as leagues in Argentina, Colombia, and Chile. The game also has exclusive deals with major Brazilian clubs Corinthians, Flamengo, São Paulo, Vasco, and Atlético Mineiro.

Meanwhile, FIFA 21 includes the Copa Libertadores and Copa Sudamericana, South America’s principal continental club competitions.

Legal troubles

The court cases filed by footballers against video game developers all concern the alleged misuse of their images, with players demanding large amounts in damages for the use of their faces, names, and technical attributes in the products.

Legally, they have an argument. The complaints are based on the 1998 Pelé Law, which determines that the image rights of each player can only be used — in video game, television and marketing media products — in case of specific and individual contracts. 

Case records show that players have requested an average of BRL 150,000 (USD 30,000) in damages, often for more than one unauthorized appearance. 

Public opinion is largely against the players. In line with the recurring argument that footballers “earn too much money,” critics have blasted the lawsuits as opportunistic. The players, on the other hand, say they are simply exercising their legal rights.

Digital and data privacy law expert Marcelo Cárgano told The Brazilian Report that the players are not simply being money-seeking opportunists.

“That’s how democracy works. The same is valid for those players who don’t feel that the use of their image is worth suing for. But when players seek justice, others unaware of their own rights are encouraged to do the same.”

According to the expert, the lack of consistency between footballers who choose to sue and those who don’t is down to the lack of an intermediary organization between video game developers and players.

Though the Pelé Law states that every player requires their own contract to sign away image rights, Mr. Cárgano believes that the entire process would be made easier by an intermediary organization establishing contact between the parties, potentially even offering collective contracts to football clubs.

In the meantime, however, as the exposure and importance of football simulators continues to grow in Brazil, as will the legal complaints of the country’s footballers.