Guernsey Finance Chief Executive Fiona Le Poidevin takes a closer look at Guernsey's unique image rights legislation.
I am writing this article the morning after goals from Wayne Rooney and Frank Lampard have helped England to victory over Brazil in an international friendly at Wembley. Such a fixture would always be special but it was made even more poignant by the fact that it was arranged as part of the celebrations to mark the FA’s 150th birthday.
Of course, much has changed regarding ‘association football’ in the last century and a half. No more so than regarding finances where today the football community has a large number and a wide variety of needs. Guernsey is a leading international finance centre which is able to provide a wide range of services from a tax neutral environment to help meet the requirements of both organisations and individuals within football.
The Guernsey offering
Many of you may relate to Guernsey as a holiday destination and of course, most of you will know our most famous football son, Matthew Le Tissier. However, during the last 50 years, Guernsey has established itself as a leading international finance centre. Today, the four main pillars of the Island’s finance industry are:
Banking – There are 32 licensed banks holding nearly £100 billion worth of deposits.
Fiduciary services – There are 154 licensed fiduciaries, ranging from multinational organisations to independent, boutique operations, employing nearly 2,500 members of staff.
Investment funds – There are 50 fund managers, administrators and custodians with total net asset value of funds under management and administration of £274 billion.
Insurance – The Island is the largest captive insurance domicile in Europe and number four globally.
Businesses in these sectors are supported by a network of professional services, including multi-jurisdictional law firms and global accountancy practices and supervision is provided by the Island’s financial services regulator, the Guernsey Financial Services Commission (GFSC). Together, financial services firms from Guernsey provide a wide range of services at the highest standards to clients from around the globe, including those within the football community.
Financial services for football
The breadth and depth of Guernsey’s finance industry means that it is ideally placed to meet the needs of both football organisations (e.g. associations and clubs) and individuals (e.g. executives, players and agents).
The Island has a long and strong history of utilizing company structures to help organisations meet their financial needs, for example raising funds through capital markets. Indeed, Guernsey is home to more non-UK entities listed on the London Stock Exchange (LSE) – Main Market, Alternative Investment Market (AIM) and Specialist Funds Market (SFM) – than any other jurisdiction globally.
Guernsey entities can also be listed on the locally based Channel Islands Stock Exchange (CISX), Euronext
Amsterdam, markets in Toronto and Australia, as well as the Hong Kong Stock Exchange (HKEx), among others. This means that the Island can be used as a gateway to access capital from around the globe, including developing economies where there is the fastest growth in corporate and private wealth looking for suitable investment opportunities, including football. Guernsey was also the first place in the world to introduce Protected Cell Company (PCC) legislation. The pioneering move created a structure where different pieces of business can be placed within individual cells, such that the assets and liabilities are ring fenced from each other but are still within one legal entity. It has since been followed by the Incorporated Cell Company (ICC), which is based on the same principles but where each cell is a distinct legal entity.
The concept has now been replicated by jurisdictions around the world. However, the fact that the PCC was conceived in Guernsey means that the Island has had ‘first mover’ advantage in building up expertise in utilising cell company structures in particularly innovative ways across the financial services industry, including wealth management for private clients.
Guernsey has significant experience in servicing private clients by employing structures such as companies and trusts. In January this year the Island also introduced the Guernsey Foundation, which provides local practitioners with another option for meeting client needs, in particular asset protection, succession planning and wealth planning through a third country for globally mobile individuals, such as footballers.
The Guernsey Foundation is expected to be particularly attractive to clients in civil-law jurisdictions not just in continental Europe but also further afield in Asia, in particular China, Russia and Latin America, where the common-law concept of the trust is less well understood. However, the specific provisions of the new law and the Island’s heritage in providing trust and company administration means that the Guernsey Foundation will also be attractive to clients in common law countries, such as the UK.
This expertise means that Guernsey is also very well placed to administer new business under what is world-first image rights legislation. At the end of last year, Guernsey became the first jurisdiction globally to recognise image rights in law and provide them with a register. The register went live on 3 December 2012 and later that day, the world’s first image right application was approved. This has since been supplemented by two international DJs receiving approval for their personalities and associated image rights to be added to the register.
The image rights offering can also be utilised by corporate entities but it will be particularly attractive to high-profile individuals, including footballers. The lack of definition in UK law in this area means that it has been very difficult to place a value on image rights and as such, there have been disputes with HMRC in relation to distinguishing between where income arises from an individual’s ‘day job’ or ‘brand’.
Placing image rights on a statutory footing provides definition around the person as the individual and the brand.
In doing so, it creates both certainty for tax matters and also a commodity which can be both protected and exploited. The registered personality and image rights can be licensed, traded and assigned, allowing complete freedom in their use by the individual or their licensees. They also offer a high degree of protection against the use of an individual’s image by unauthorized third parties. However, it should be noted that the Guernsey legislation also includes express provisions balancing these rights with other interests, including the right of free speech, parody or satire and news reporting. Therefore, football players cannot expect to try and get away with hiding behind this legislation if they are looking to avoid making headlines for the wrong reasons.
We have also seen footballers making headlines in the past for some aggressive tax planning arrangements but Guernsey is not inviting the use of any of its services, including its image rights legislation for these purposes.
Guernsey provides a safe and secure jurisdiction offering tax neutrality, which means that clients are not taxed twice on the same income. They do not pay tax in Guernsey on the income but they are expected to declare income and pay the relevant taxes due in their ‘home’ country i.e. where they are ordinarily resident.
The Island is an international finance centre with a reputation for meeting the highest international standards in terms of regulation and tax transparency and exchange of information. Indeed, Guernsey does not condone tax evasion or financial crime of any form.
The right result
Guernsey is a leading international finance centre which has the infrastructure and expertise within a tax neutral environment to meet the financial needs of football organisations and individuals. Many footballers already use our private client services but there is likely to be particular interest in our world-first image rights legislation, which in turn is expected to provide the catalyst for an increased demand for the Island’s wider wealth management services.
Originally published in FC Business, January 2013
For more information about Guernsey's finance industry please visit www.guernseyfinance.com.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.