Traditional intellectual property-based industries were based on patents, designs, and trademarks, and their protection was a matter of interpretation and application of individual laws, such as the Patent Act, Design Protection Act, Trademark Act, and Unfair Competition Prevention Act. In addition, even though there is no clear legal regulation for the right of publicity, it has been classified as 'new intellectual property' and the interpretation conclusion that it can be protected through the interpretation of existing laws has been discussed and legislative theories have been considered. The professional sports industry, centered on the right of publicity, is also included in the cultural industry based on intellectual property. In terms of protecting IP-based industries, I have been thinking that more active intervention is needed by emphasizing the role of competition law, such as the Fair Trade Act, in the context of fairness of transaction relationships, prevention of free riding tantamount to technology theft, and prohibition of abuse of dominant position. As an extension of this thought, I would like to carefully develop my short opinions on the 'Happening' related to the use of a player in the professional sports industry.

 

 

 A. The Need to Enhance the Role of Competition Law in the Professional Sports Industry

 

  The revenue model of the professional sports industry has been formed through various contractual relationships, including licensing based on the publicity rights of sports stars, advertising, management, and other rights protection based on copyright laws, trademark laws, and unfair competition laws, as well as representative forms such as broadcasting fees for sports events and sponsorships. Looking back, professional sports in Korea has been in full swing since the establishment of professional baseball in 1982, and has a long history of well over 30 years. Nevertheless, competition law has remained virtually silent on various transactions related to professional sports, and although the KFTC has recently begun to actively intervene in the issue of unfair terms and conditions for professional baseball players, there are still no representative cases of direct application of competition law and consumer protection law or various discussions on correcting unfairness in transactions. From the perspective of civil law, it is necessary to reflect on whether the unfairness of profit squeezing, free riding, and abuse of dominant position in trade has been overshadowed by the principle of private autonomy and the interests of the trading relationship that should be protected have taken a back seat.   

 

B. Lee Yong-dae Case

  

 At the time of the sponsor conflict involving Lee Yong-dae, a leading badminton player in Korea, the Korea Badminton Association had been receiving cash and goods worth $3 million a year from Taiwan-based Victor. However, during this period, Yonex, which is not an official sponsor of the Korea Badminton Association, signed a 'personal sponsorship contract' with Lee Yong-dae, and Lee Yong-dae acted as an advertising model for Yonex on social media and online shopping malls, and used Yonex's badminton rackets and other playing equipment according to his own choice. The Badminton Association of Korea publicly requested a correction, which was reported in the media and caused a lot of controversy, and Lee Yong-dae, who felt psychologically burdened, immediately held a public press conference to apologize and announced that he would stop using personal items and modeling for Yonex, and that he would devote himself to the Rio Olympics. In a similar case overseas, in May 2015, European powerhouse Denmark dropped the then world No. 3 men's doubles pair of Mathias Boe and Carsten Mogensen from its national team ahead of the 14th World Team Badminton Championships (Sudirman Cup) in Dongguan, China. According to reports, Boeh-Morgensen insisted on using his own equipment at the World Championships, rather than that of the official sponsor of the Danish national team, and the Danish Badminton Association decided that this was unacceptable as the national team was operating on a budget provided by the official sponsor, so they took the bold decision to take away the Danish flag from the team ace. 

 

 

The following is a summary of the case. The legal status of the KFA and its affiliated sports organizations 

 

 

 

 To conclude, the KFA and its affiliated sports organizations can be classified as a business entity under Article 2(1) or a business entity under Article 4 of the Fair Trade Act. Therefore, it is judged that the Fair Trade Act can be directly applied to the KFA and its affiliated sports organizations. First of all, the current Fair Trade Act does not actively define the concept of business, so it comes down to a matter of legal interpretation. Not only is it common to interpret the scope of business under the Competition Act to be very broad (Volker Emmerich, Das Recht des Unlautern Wettbewerbs), but domestic academics also believe that a business under the Fair Trade Act is not limited to a commercial business as prescribed by the Commercial Code, but also refers to any economic activity that is carried out continuously and repeatedly based on economic calculations. In particular, non-profit organizations are also broadly interpreted as business entities under the Fair Trade Act, which is divided into 'absolute business entities' and 'relative business entities' in the lectures (see Jung Ho-Yeol, Encyclopedia of Economic Law, 5th edition, p. 75), and it should be considered that the status of a business entity can be recognized in any continuous transaction relationship that considers economic incentives, even if it is limited to 'product sponsorship and marketing utilization' and seeks to utilize the attribution of profits in the public interest. The Supreme Court has also ruled that "the state and local governments should be considered to be included in the definition of business operators within the scope of the Fair Trade Act if they engage in transactions with others as subjects of the private economy" (Supreme Court, Nov. 23, 1990, Decision 90 DAKA 3659), and it should be seen in the same light that the concept of business operators is judged from the perspective of actual conduct.

 

 

 In the end, in light of the organizational characteristics of the KFA and its affiliated sports organizations, their legal status can be assessed in two ways: (1) by including individual professional athletes as business entities under the Fair Trade Act, meaning that they are affiliated organizations, or (2) by directly including the KFA and its affiliated sports organizations as one individual business entity and applying regulations on business entities. This is not an incompatible status, but rather a matter of operational delineation and choice in the process of applying the Fair Trade Act. 
 

 In the end, considering their status, the Fair Trade Act can be directly applied to transaction-related acts that may occur in the process of concluding sponsorships and selecting personal items between athletes and associations. 

 

 

. Evaluation under the Fair Trade Act

 

 

 As for the consequences of an athlete choosing to abandon a sponsor in response to a complaint from his or her sports organization, the first issue that can be examined is the issue of exclusive dealing, which is a type of binding conditional transaction under the Fair Trade Act, and interference with business activities, abuse of a dominant position in a transaction, or interference with the business activities of an affiliated business organization. Furthermore, depending on the outcome of the relevant market, it cannot be ruled out that a monopolistic position of the Korea Sports Federation or its affiliated sports organizations may be recognized, so this case is also considered to be an abuse of a dominant market position (Article 3(2) of the Fair Trade Act). Of course, the issue of whether or not there is a restriction of competition is a difficult judgment that requires a comprehensive consideration of various factors, and it must be judged by synthesizing various incentives such as restricting competition and increasing efficiency. However, can it be justified to go beyond the sponsorship of general items that do not directly affect the outcome of a match, such as a simple 'uniform' as in the case of Lee Yong-dae, to the uniform decision and compulsory use of items such as rackets that can directly affect the performance and outcome of a match? I seriously doubt it. Furthermore, in light of the lack of adequate procedures to control the conflicting interests of the two parties, the lack of adequate compensation measures for the sacrifices made by the parties, the fierce nature of sports competitions, and the 'vested interests' of athletes and associations, the antitrust law should intervene more actively, which will contribute to the development of a healthier sports industry in the long run rather than causing the sports industry to shrink. In addition, if competition among multinational sporting goods companies is further promoted, the positive effects of competition and the increase in consumer benefits will contribute to the motivation of athletes.  

 

     

  Separately, if we look at the applicability of the Terms and Conditions Regulation Act among the laws under the jurisdiction of the KFTC, there is a large scope to include the internal regulations (regardless of the name) of the association, such as the restriction of individual athletes from entering into sponsorship contracts, as terms and conditions under the Terms and Conditions Regulation Act, and we believe that the law can intervene complementarily to control unfair terms and conditions as a general law on terms and conditions.