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To Tattoo or Not To Tattoo?


By Charlie Bachtell, DePaul University College Of Law

Advertising is one of the fundamentals of professional sports today. Leagues, teams, and players try to figure out the best ways to increase their income through advertising. Advertisers are trying to figure out new ways to get the best exposure for their companies in the most efficient ways. One company may have beaten all the others to the punch: GoldenPalace.com.

Golden Palace has entered into contracts with four athletes, so far, to have 'GoldenPalace.com' temporarily tattooed on their bodies while the athletes are competing. The exposure gained has been far greater than the company could have imagined. Currently Golden Palace has only used boxers to advertise, but this could be just the tip of the iceberg.

The contracts that Golden Palace has entered into with the fighters, most notably middleweight champion Bernard Hopkins, have been on a fight-by-fight basis. Hopkins has fought twice while adorning the Golden Palace tattoo across his back while receiving $100,000 for the endorsement. Hopkins debuted the body advertisement in his championship bout against Tito Trinidad last year. The body ad received an incredible amount of publicity.

The advertisement is applied to the athletes using a technique that has been around for 3,000 years: the henna tattoo. The tattoo is temporary because of the all-natural henna ink that is used. The tattoo would usually last one to three weeks on an average person. It lasts for a shorter time on athletes due to their level of perspiration.

While this new form of advertising has increased exposure for the online gambling site, it has caused quite a debate. In January, the Nevada Athletic Commission (NAC) voted unanimously (5-0) to ban this type of body advertising. The NAC argued: (1) the advertisements could be distracting to judges watching the bouts, (2) tattooing endorsements on the body was demeaning to the sport, and (3) the ink is unsafe because it could rub off and go into the athletes' eyes. Marc Ratner, executive director of the NAC, was quoted as saying 'if they want to advertise on the trunks, it is fine with us. But we feel that the body is not meant to advertise. We feel it's not NASCAR.' Ratner also stated the ads are 'a distraction to the judges. On the TV screen when you're watching the fights, your eyes are drawn on that. It's a great advertising gimmick. I'm not saying it's not. But again, if they want to advertise they can do it on their trunks.' [FN 1].

Eric Amgar, coordinator of sports and events for GoldenPalace.com, countered by saying that it's getting more difficult to demean a sport that has all out brawls at press conferences. The commission should have no say in what a boxer puts on his body, as he is expressing his first amendment right to free speech. GoldenPalace.com officials also had concerns that the commission would not have been so quick to oppose the advertising if the endorsement was not for an online casino. Responding to the safety concern of the NAC, Amgar stated there is no risk to either fighter: 'we've done our research and we've learned as we've grown and we've found a way to make them (tattoos) stick.' [FN 1].

Amgar further states how this form of advertising can be a great and sometimes necessary financial source for the majority of boxers. Boxers are arguably the most well trained, dedicated athletes competing today. However, only the top few ever, in their relatively short careers, reap the financial benefits. Unfortunately, boxing promoters, venues and television networks, absorb most of the millions of dollars that boxing matches generate.

Golden Palace immediately challenged the NAC's decision to ban this form of advertising. Golden Palace sought a temporary injunction. The courts granted a temporary injunction and Golden Palace requested a hearing to seek a permanent injunction.

On Tuesday, March 5, Clark County district court judge Valerie Vega ruled to allow Golden Palace to continue putting their advertisements on boxers' backs. The court made its ruling after finding 'no evidence that temporary body markings, including temporary tattoos, are distracting, or would be distracting to boxing judges during a bout.' The judge went on to say that the ban was a violation of the boxers First Amendment rights and therefore could not be enforced [FN 2].

After the ruling Joe Lear, agent for Bernard Hopkins, was extremely excited at possibilities that are available for this type of advertising. Lear is eagerly lining up new advertisers with athletes in a wide array of sports. With over 1,400 online casinos currently on the web, Lear is very optimistic about future endorsement deals of this nature, 'I am going after the on-line casinos exclusively. I love working with them. They are more aggressive and they get the results quicker...I'm trying to find another two or three websites to get together with for boxing because there are more fights than Golden Palace can handle.'

After the ruling allowing body advertisements in boxing, it raises the question of whether or not other types of athletes will be allowed to wear the temporary tattoos. For certain sports like tennis, golf, and NASCAR, it would probably not be an issue since they are allowed to set up their own endorsement deals, and have adorned themselves in interesting ways already (i.e. Jesper Parnevik's hats). The question would be of greater debate in sports that have leagues and commissioners that set up league wide endorsements and with players that wear specified team uniforms, like the National Basketball Association (NBA).

The issue was raised, but not formally addressed, last March when Rasheed Wallace and his agent Bill Strickland were evaluating an offer from an unspecified candy company to wear a temporary tattoo advertisement while playing basketball. The candy company was not named except it was stated the company was not Nestle, a major sponsor of the NBA.

The NBA is not thrilled about this new form of shock advertising. As a league representative stated, 'we do not allow commercial advertising on our uniforms, our coaches or our playing floors, so there is no reason to think we'll allow it on our players.' [FN 3]. The league does actually allow sanctioned manufacturers to put their logos on the uniform, but the league receives money for this, and so do the players. Wallace chose not to go along with the Non-Nestle candy endorsement due to his own artistic expression. If Wallace had gone ahead with the endorsement, Nestle may have had a viable claim against the NBA for violating their exclusive sponsorship agreement. Nestle may have voided this agreement. The NBA's collective bargaining agreement seemingly allows the NBA to restrict what a player is allowed to put on his body. This type of expression is no different from restricting what a player is allowed to say when criticizing the league or its officials. The NBA's Board of Governors and the National Basketball Players Association establish the collective bargaining agreement. These groups, which represent the owners and players respectively, develop dress codes, set up television broadcasting agreements, negotiate league sponsorships, discuss the league's image, and more. All of this is to determine what will best suit the league and the players collectively. For certain restrictions that are placed on players they are justly compensated with contracts reflecting the amount of money the league is generating. The guidelines in the collective bargaining agreement have been instrumental in producing the greatest revenue generating sports league in the country and some of the best paid athletes in the world.

It is obvious that this type of advertising will work much better, and with less judicial conflict, in sports with individual athletes and without leagues and specified uniforms. With the attention that Golden Palace is reaping right now we can expect to see many more skin ads in the future, and there is no problem with this.

There is no reason for athletes that do not have restrictions on their on their attire or personal endorsements to jump all over this opportunity. For leagues that have general sponsors, where players receive portions of the proceeds, the leagues should have the right to contractually limit the types and amount of personal endorsements that players can have while participating in league events. However, the future possibilities available to this type of advertising are unlimited. Maybe the next draft of the NBA's collective bargaining agreement will contain provisions regarding advertisement tattoos. As Eric Amgar from Golden Palace said, 'people better lookout, because we are going to be showing up everywhere!'

Reprinted from:

http://www.law.depaul.edu/sportslaw/comments/to_tattoo.asp


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