French Consumer Law is a comprehensive and comparative overview of French and EU law in this field, covering: advertising, unfair commercial practices, conditions for the validity of contracts, unfair terms, product conformity, latent defects, product safety.

French Consumer Law

A sponsorship agreement constitutes a synallagmatic contract which as such is subject to the law of obligations concerning its formation and performance insofar as the parties have reciprocal obligations in respect of each other (Civil Code, Article 1102). In such a contract, the consideration of the obligation of one party resides in the obligation of the other. An obligation without consideratio …

Synallagmatic contract

A bilateral contract creating reciprocal obligations.

The object of sponsorship is the promotion of the sponsor's brand thanks to the financial (in kind or technological) support of an event, a person or an organization. A sponsorship operation does not necessarily have ties to the sponsor's activity although a looser link with its activity can often attest to the sponsor's reputation. The operation can therefore be unrelated with the activity of the sponsor - e.g. in the case of a yachtsman sponsored by a housing construction firm  - or have a direct link as is the case of a sportswear manufacturer seeking to enhance its reputation by the provision of its equipment to footballers   or a manufacturer wishing to demonstrate the effectiveness of particular products. A company may also choose to sponsor one of its own employees where the latter practices a sporting activity . 

Managing the sponsorship can take two different forms. The sponsor can either directly manage the operation within the company like any other marketing operation (direct management), or outsource by entrusting it to an association or foundation already in place or which was created for that purpose (indirect management) . 

CA Lyon, 2 July 2009, LawLex201300000569JBJ.

Cass. com., 2 December 1997, LawLex200200002871JBJ.

In this case, sponsorship is an addition to the relationship resulting from the employment contract, and can have an effect on that contract: in particular, the undertaking may not dismiss the employee on the grounds of prolonged and repeated absences prescribed to treat injuries sustained in the context of the performance of the sponsorship agreement, See CA Colmar, 30 November 2011, LawLex201300000728JBJ.

CA Paris, 4 April 2013, LawLex200300001843JBJ: in this case, the Fédération Française de Football (FFF) commissioned a third party undertaking company to find for financial partners to sponsor the French Cup (Coupe de France).

Object and form of management

A sponsorship agreement constitutes a synallagmatic contract which as such is subject to the law of obligations concerning its formation and performance insofar as the parties have reciprocal obligations in respect of each other (Civil Code, Article 1102). In such a contract, the consideration of the obligation of one party resides in the obligation of the other. An obligation without consideration is void , and the parties are entitled to refuse performance based on the exceptio non adimpleti contractus defense.

In the context of sponsorship agreements, the sponsor has an obligation to give something i.e. achieve a given result (obligation de résultat) in consideration of which the sponsoree undertakes to meet an obligation to do - a best-efforts obligation (obligation de moyens) or to achieve a given result (obligation de résultat) - and sometimes even obligations not to do something in the case of exclusive or non-compete clauses . The distinction between an obligation to do, not to do and to provide determines the method of performance: in kind in the case of the obligation to provide and, in principle, by equivalence, in the case of obligations to do and not to do.

When contractual liability is invoked, the distinction between “obligation de résultat” and “obligation de moyens” governs the burden of proof of the breach with the party bound by a given result presumed to be liable unless able to prove that the breach is a consequence of force majeure.

See in particular CA Colmar, 17 March 2011, LawLex201300000723JBJ, for an application (dismissed) of a lack (or withdrawal) of consideration of the sponsorship agreement in the event of the transfer of the sponsored player.

CA Paris, 9 November 2005, LawLex200600001386JBJ: a sponsored athlete who violates the exclusive promotion obligation provided for in the sponsorship agreement is liable in damages to the sponsor who is deprived  private of the media impact it was entitled to benefit from.

The sponsored person (endorser or sponsoree) undertakes to meet obligations which may differ according to the various stages of the event to which the sponsorship agreement applies: upstream during preparations; during its implementation; downstream, after the event. 

During the preparation stage of the operation, the endorser may be bound by certain obligations to achieve particular results  provided that they are specified in the sponsorship agreement: valid registration at the sponsored event may be a prerequisite for the performance of the obligation to participate under the sponsorship agreement. A sponsored athlete may be required to accept a teammate imposed by the sponsor . A sponsored athlete will have to train, submit to medical check-ups, etc. An artist will have to create the work subject to the sponsorship or participate in the rehearsals of the sponsored work. The sponsor is, however, precluded from claiming a lack of information regarding a training schedule/competition dates or the availability of an athlete, in order not to pay its financial contribution . 

At the event itself, the endorser is only bound by a best efforts obligation. The sponsor is not entitled to claim compensation based on the poor performance of a sponsored sportsperson , or on the performances of the leader of a sponsored cycling team, banned from competing for use of banned substances, in order to avoid payment of its financial contribution where the rest of the team competed and obtained good results .  A sponsored employee cannot be dismissed when on sick leave for the treatment of injuries sustained in the context of the sponsorship agreement . Although the object of sponsorship is the promotion of the brand or the name of the sponsor, the latter may not terminate the contract unilaterally because of poor future prospects or disagreements about the policies of a club . Likewise, the harm to brand image resulting from the doping by a cyclist in a team does not entitle the sponsor to file a civil action in a criminal proceeding, as its loss is indirect only . The sponsor cannot blame the artist for the quality of works carried out or his/her performance. 

In addition to participating in an event, the presentation or representation of a work, the endorser is required to promote the sponsor's name or brand - an advertising obligation in consideration of which it receives fees. The obligation to promote the image of the sponsor or its products or services can be through various means: e.g. promotion of the brand or taking part in PR operations. The obligation to display the sponsor's distinctive signs is usually a result-based obligation. The display medium differs depending on the type of sponsorship - equipment, vehicles , sportswear ,  building facades  - and can itself constitute the subject-matter of the operation where the sponsor provides the equipment and material the endorser needs for the exercise of his/her particular discipline . The transfer of a player to another club does not cause put an end to the promotional obligation where said transfer does not render impossible the performance of the contract . In certain cases sponsorees may be required to present the sponsor's products to their clients . 

The promotion obligation can be in the form of an exclusivity  or non-compete clause. Thus, where the sponsor is authorized to use images and depictions of a building, plaque or space for advertising purposes, the endorser is automatically prohibited from marketing his/her image to the sponsor's direct competitors . Similarly, the executives of a sponsored sports club are in breach of their obligation to constantly adopt “a positive attitude with regard to the articles of clothing” of the sponsor's brand, by letting themselves be photographed wearing the tracksuit of another brand . A sponsored athlete who breaches the exclusive promotion obligation provided for in the sponsorship agreement is liable to compensate the sponsor for its loss of media coverage . In principle, the use of the image of the sponsored athlete for advertising purposes does not require the consent of the sports federation as its regulations are not enforceable against third parties . In practice, however, federations impose their rules of procedure on their members , which necessarily affects the provisions of the sponsorship contract. When the parties are bound by an employment contract, the non-compete clause binding the sponsored party must fulfill the conditions required for such clauses to be valid . 

Finally, the endorser may, as part of its obligation to promote, be required to participate in public relations operations e.g. undertaking to display the logo or mention the name of the sponsor in interviews, participate in a specified number of photo signings  or lead a training session, display the sponsor's logo on his own website and embed hypertext links towards the sponsor's own site . When the image of the sponsored personality is used, the sponsorship contract will have to include an express authorization to use the attributes of that individual's personality in order to avoid a violation of the right of publicity . The breach by the sponsored party of his obligation to promote gives rise to contractual liability and the sponsor is entitled to claim damages .

Cass. 1re civ., 12 July 1994, LawLex200300003136JBJ: a second driver of Formula 1 team chosen by the sponsor.

CA Paris, 7 February 2013, LawLex201300000719JBJ.

CA Paris, 9 November 2005, LawLex200600001386JBJ: equipment provided to top athlete.

CA Colmar, 17 March 2011, LawLex201300000723JBJ.

CA Paris, 4 April 2013, LawLex201500001084JBJ. 

CA Amiens, 4 April 1995, LawLex200300001748JBJ.

CA Aix-en-Provence, 9 February 2012, LawLex201300000458JBJ.

Cass. 1re civ., 20 May 2003, LawLex201300000514JBJ.

CA Paris, 9 November 2005, LawLex200600001386JBJ.

CA Paris, 8 November 1993, LawLex200300001727JBJ.

See CA Paris, 23 August 1995, LawLex200200002290JBJ, holding that even if the act by which a sports federation decides to impose an equipment supplier on its members is outside  the competence of the Competition Council insofar as it implements its prerogatives as a public authority, wherees the contract of exclusive sponsorship agreement between a sports federation and a supplier, is a private law contract.

The sponsoree's non-compete obligation is thus limited in its scope, geographically, in time and materially, be proportionate to the legitimate interests of the undertaking it protects and provide for financial consideration.

Paris T. com. 30 June 1993, LawLex200300001843JBJ.

CA Paris, 24 January 1991, LawLex200300001723JBJ: commitment by a well-known artist to participate as a racing driving  in five photo signing sessions.

CA Paris 7 February 2013, LawLex201300000719JBJ.

CA Lyon, 8 October 1999, LawLex200300003507JBJ : conclusion of a contract for right to use an image; but see CA Aix-en-Provence, 12 February 2013, LawLex201300000721JBJ, holding that the sponsorship contract requiring the sponsoree to participate in the operations of promotion implicitly provides the right for the sponsor to use the name and the image of the sponsoree in its commercial publications

CA Paris, 4 April 2013, LawLex201500001084JBJ.

CA Paris, 9 January 2014, LawLex201500001076JBJ, stressing that the hazard of doping is widespread in the world of cycling and that the company responsible for organizing the team was not bound by an obligation of to achieve a certian result with respect to its performance.

CA Colmar, 30 November 2007, LawLex201300000728JBJ.

CA Poitiers, 5 October 1994, LawLex200300001763JBJ.

Cass. crim., 29 September 2009, LawLex201300000644JBJ.

CA Paris, 24 January 1991, LawLex200300001723JBJ: obligation to affix the sponsor's logo to the truck transporting the racing car. 

CA Amiens, 4 April 1995, LawLex200300001748JBJ: obligation to wear only clothes of the sponsor's brand during competitions; CA Poitiers, 5 October 1994, LawLex200300001763JBJ, cited above: obligation to affix sponsor's logo on player's kit; CA Paris, 24 January 1991, LawLex200300001723JBJ cited above: undertaking to wear badges of a specific size and shape at specific places on race suits and jackets; Cass. 1re civ., 20 May 2003, LawLex201300000514JBJ: obligation to  continuously adopt positive attitude with regard to articles of clothing.

CA Aix-en-Provence, 9 February 2012, LawLex201300000458JBJ: the commitment by the sponsoree to promote the sponsor's know-how and the image may be attained by the sponsor affix on the facade of the building that it has built for the sponsoree a written plaque, having a space in that building, inaugurating it, and organizing visits.

Sponsored party's obligations

In accordance with the definition of sponsorship, the sponsor's primary obligation is to provide a fee in consideration for publicity by the endorser. The amount of the payment, sometimes described as premiums (primes) , fees (redevances)  , commissions  or sponsorship allocations  by the parties, depends on what the operation is and how it is to be realized. It can, in part, consist of the award of a prize . Where the sponsor and the endorser are bound by an employment contract, the payments are regarded as a salary or remuneration , and are subject to tax and social charges as such . 

The terms of payment of the contribution will vary depending on the nature of the operation. Also, when the sponsorship operation is renewable, the agreement generally provides for payments to be spread out over time . This is the case for the sponsorship of Formula One racing teams, which extends over an annual season covering several competitions. The sponsorship sometimes concerns one specific event, which implies the immediate disbursement of a part or the whole of the budget. Like any obligation to provide something, the sponsor's financial obligation constitutes an obligation to achieve a specific result. 

Certain conditions can affect the performance of the sponsor's contribution obligation. Payments can be made subject to the selection or the qualification of an athlete in a competition  or of a certain number of racing drivers present at the starting line of a race . Although the sponsor cannot withhold payment of its contribution due to poor results by the endorser, the payment of additional remuneration may be awarded in the event of a win .

In accordance with positive law, where the sponsoree is able to bring evidence of the existence of the sponsor's financial obligation , the latter must fulfill its obligation to pay , and can be compelled to pay . On the other hand, if the sponsorship contract does not clearly set out the sponsor's financial contribution obligation, it cannot be forced to pay insofar as the sponsoree has suffered no loss . The sponsor is precluded from reproaching a club with making allegedly costly player selection decisions , in order to avoid payment of the contribution, or use the endorser's injury to claim a force majeure event  or the lack of significance of an athlete's participation in a particular event in the light of the media impact expected, insofar as nothing in the contract requires the athlete to obtain the sponsor's prior consent with regard to the event in which he takes part . The sponsor can, however, waive the obligation when another company has replaced it in respect of the obligation to pay commission .

Finally, when the sponsored party does not perform all or some of its commitment, the sponsor may invoke non- performance as a ground to waive its obligation to pay provided that it can show evidence that the breach has extinguished its own obligation in accordance with the provisions of Article 1353 (formerly 1315) of the Civil Code . 

CA Paris, 16 January 1995, LawLex200300001731JBJ: commitment by the sponsor (the company) to contribute a part of the advertising budget in the form of ranking-based premiums and result-based premiums.

Cass. 1re civ., 10 July 2014, LawLex201500001075JBJ.

CA Paris, 9 November 2005, LawLex200600001386JBJ: premiums in the event of a medal in the Olympic Games.

CA Chambéry, 13 March 2012, LawLex201300000460JBJ: where an offer of sponsorship is made only in the interest of its recipient, and it was fully executed in one year then partially in another so as to leave no doubt as to its acceptance, the provider of the offer is bound by the sponsorship contract; CA Basse-Terre, 21 January 2007, LawLex201300000720JBJ: The sponsor is bound by its fee payment obligation under the sponsorship contract insofar as it has not contested it and has called for a reduction of the amount due.

Cass. 1re civ., 10 February 1998, LawLex200300003423JBJ.

Cass. 1re civ., 12 July 1994, LawLex200300003136JBJ;Cass. com., 27 March 2001, LawLex200300003161JBJ.

Although the lack of clarity in a sponsorship agreement invoked by the sponsor in order to unilaterally terminate it does not constitute a legitimate reason for termination, it cannot however force the latter to continue performance insofar as the sponsoree has suffered no loss, Cass. 1re civ., 11 November 1999, LawLex200300003137JBJ, relative to a sponsorship agreement between the director of a hotel and an association whose members perform in shows, providing that in the event of travel, the sponsor undertook to subsidize the association for 30 return flights. 

CA Grenoble, 26 June 1990, LawLex201500001135JBJ: an association having ceased performance of the sponsorship agreement due to injury of the sponsored boxer although nothing prevented the sponsor from continuing to use the image of the boxer in promotional operations.

CA Versailles, 11 September 2013, LawLex201500001081JBJ.

Cass. com., 26 March 2002, LawLex200300003162JBJ, overturning CA Lyon, 8 October 1999, LawLex200300003507JBJ : quashing the judgment of the Court of Appeal for having considered that, insofar as the termination of the contract of employment of the athlete entails the automatic expiration of the sponsorship agreement and the dismissal of the said athlete was held to be unfair in a decision having the authority of res judicata, the sponsor must fulfill its fee obligation. As the sponsorship agreement had been signed by the company holds the right to the player's image and the sports club, in effect, the Court criticized them for not having sought to ascertain whether the sponsor has been substituted in its obligation to pay commissions by another company through an agreement signed by the third company and the company holding the right to the image, called "sponsorship concession".

Cass. 1re civ., 12 July 1994, LawLex200300003136JBJ, cited above: the sponsor had criticized the sponsored Formula 1 team sponsored of not having fulfilled its contractual obligations, in particular by not giving the second driver it had selected sufficient trials. As the plea was not supported by any evidence, the sponsor is required to honor its commitments. A sponsor who does not bring evidence of breach of the obligations of its counterparty, must fulfill its obligation to pay fees, Cass. 1re civ., 10 February 1998, LawLex200300003423JBJ, upholding CA Rennes, 13 October 1993, LawLex200300003971JBJ, relative to a "patronage" agreement, which was in reality a sponsorship operation for the financing by a company of the International Children's Choir Festival   organized by an association, which in consideration had publicly associated the name of that company to the festival.

Cass. com., 26 March 2002, LawLex200300003162JBJ.

CA Chambéry, 13 March 2012, LawLex201300000460JBJ.

TGI Paris, 9 January 1991, LawLex200300001847JBJ.

CA Paris, 5 July 2007, LawLex201300000599JBJ. 

The revenue collected by a sports personality in the performance of his athletics contract cannot be exempt from social contributions on the grounds that it is derived from a use of image contract, when it is a result of the overall economic balance of the contract that these sums have been paid only in relation with his professional activity, subject to the allocation of an endorsement right,  personal services, of the use of the products of the brand as well as consultations and public apparitions, CA Aix-en-Provence, 29 September 2011, LawLex201300000559JBJ.

CA Paris, 9 January 2014, LawLex201500001076JBJ: financial consideration subject to the condition that the team should make best efforts according to the conditions of the market cycling market in order to include several French cyclists and a minimum number of cyclist of international repute.

Cass. 1re civ., 12 July 1994, LawLex200300003136JBJ: financial contribution which is irrevocably payable, non-refundable and acquired by the sponsored undertaking, subject to the participation of the latter in all qualification or pre-qualification grand prix rounds of the 1989 FIA Formula One World Championship.

Cass. 1re civ., 12 July 1994, LawLex200300003136JBJ.

French Consumer Law

63. Synallagmatic contract(1)

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

63. Synallagmatic contract.css-17rnqzd{cursor:pointer;margin-left:4px;-webkit-text-decoration:underline;text-decoration:underline;}(1).css-1exptwg{z-index:1500;color:#FFFFFF;font-family:IBM Plex Sans,sans-serif,Playfair Display,serif;font-size:16px;line-height:body1.lineHeight;}

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

63. Synallagmatic contract(1)

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise