Professional Interpretation

I. Sports sponsorship contract

1. Nature of sports sponsorship contract

A sports sponsorship contract is an agreement signed between the sponsor and the sponsored party on the basis of their respective rights and obligations. There is no unified view of the nature of the sponsorship contract. One view is that the sponsorship contract is a kind of sales contract, which is essentially an equivalent exchange of related rights between capital and goods. However, whether from the scope of adjustment or the basic legal characteristics, the sponsorship contract and the sale contract have the essential differences. Another view is that the sponsorship contract is advertising contract. In the Contract Law of the People's Republic of China (hereinafter referred to as Contract Law), there is no relevant provision for sports sponsorship contract, and there is no clear legal characterization of sports sponsorship contract. Therefore, in the legal environment of China, the sports sponsorship contract belongs to the nameless contract.

In the basic legal characteristics, sports sponsorship contract, sales contract and advertising contract are different. Therefore, defining the sports sponsorship contract as an independent contract in legislation is the practical demand to solve sports sponsorship disputes, and it is also the internal driving force to promote the development of sports sponsorship in our country. The sports sponsorship contract has the basic legal characteristics and conditions of becoming an independent contract, and should be stipulated in the sub-rule of the Contract Law just like other civil contracts.

2. Legislative Conception of sports sponsorship contract

(1) Establishing legal norms to protect sports sponsorship

With the development of sports sponsorship in China, the forms of sports sponsorship disputes also show a trend of diversification, so the government has formulated relevant legal norms. Although these regulations are not specifically directed at the sports sponsorship contract, to a certain extent, they guide and regulate the sports sponsorship market, and at the same time, they also show the attitude of the state in encouraging sports sponsorship. Due to the extensive content of the sports sponsorship contract, in addition to the relevant sports sponsorship laws, it will also be subject to the intellectual property law, anti-unfair competition law and other adjustments. Although there are many legal norms to adjust sports sponsorship, but due to the lack of supporting implementation rules, the effect of resolving disputes is not obvious.

(2) Sports sponsorship has not yet been stipulated in the Contract Law

"Sports sponsorship contract" is not stipulated in the Contract Law, and there are no corresponding provisions to be applied to the sports sponsorship acts. Article 124 of the Contract Law stipulates: “With respect to contracts which are not clearly dealt with by the Specific Provisions of this Law or by other laws, the provisions of the General Principles of this Law shall be applied, and the provisions of the Specific Provisions of this Law as well as of other laws which deal with contracts and which are most similar to the relevant contracts may also be consulted.” So when the sports sponsorship contract has a dispute, the General Principles in the Contract Law can only be applied. In practice, there is a conflict between the abstractness of the general principles and the operability of sports sponsorship contract. At present, the legislation has not defined the legal nature of sports sponsorship contract, which is still anonymous contract. In practice, more judges tend to choose Article 124 of the Contract Law, or refer to the sales contract or the advertising contract, when judging sports sponsorship contract cases. However, as everyone knows, this kind of analogy applies only one-sided view of the connection between the sports sponsorship contract and other civil contracts, but ignores the significant differences between them. Thus, it can be seen that due to the lack of specific provisions of the Contract Law as the basis for judging, sports sponsorship contract disputes are highly prone to different judgments.

(3) Gaps in special legislation on sports sponsorship

Sports events promote the commercialization and marketization of the sports market. Compared with the developed countries, the level of sports sponsorship in China is relatively low and the theoretical research is relatively backward, so the legislative level is not high. China's current legislation has not yet formulated specific legal norms to regulate sports sponsorship acts. As far as the existing legal norms of sports sponsorship are concerned, most of them belong to advocacy clauses, which cannot provide a specific legal basis for sports sponsorship disputes and contract disputes. It is precisely because of the lack of legal provisions to determine the rights and obligations of parties that judges cannot determine the accurate legal guidelines in the trial of sports sponsorship cases so that there will be inconsistent legal application.

Ⅱ.Legislative proposals

1. Perfecting the legal system of sports sponsorship

Sports sponsorship contract is a new type of independent contract, which is a dual-service, paid, and promise contract. In legislation, the sports sponsorship contract should be typed. The definition, content, necessary clauses, rights and obligations of the parties and the liability for breach of contract should be defined in the Specific Provisions of the Contract Law. The protection of the sports sponsorship contract as an independent contract in the Contract Law can not only save the cost of legislation and transaction, but also improve the predictability of trial, which is beneficial to the protection of sports sponsor parties.

2. Defining the scope of sponsorship

Sports sponsorship has dual attributes of public welfare and commerciality. Therefore, sports sponsorship contract should not only reflect economic benefits, but also consider social value and humanistic spirit. In order to protect the humanistic value of sports sponsorship, it is necessary to restrict the qualification of the sports sponsorship contract parties. Therefore, it should be stipulated in the Specific Provisions of the Contract Law that the main body receiving sports sponsorship must be sports events, sports organizations, athletes and so on. In addition, the natural persons cannot obtain sports sponsorship. In order to protect the public interest, the law should limit the qualifications of sponsors. Because tobacco and wine products are usually harmful to human health, it is necessary to prohibit tobacco companies from providing sports sponsorship and strictly restrict strong liquor companies to provide sponsorship for sports events in the Contract Law.

3. Establishing the rules of increasing the organizer's liability for breach of contract

The core content of the sports sponsorship contract is the exclusive right of sponsors. Normally, the obligations of the receiving party are reflected in two aspects:

（1）The receiving party shall, in accordance with the terms of the contract, transfer the advertisements publishing right, naming right and relevant intellectual property rights of sports derivative products. Exclusive rights of the same content shall not be granted to other competitors in the same industry within a certain geographical and time limit.

（2）It is the receiving party who also needs to ensure that the exclusivity of the contract is free from defects. The receiving party has the obligation to cooperate with the sponsor to prevent the third party's infringement when the third party carries out hidden marketing acts.