TICKETING: Is the Digital Economy Act 2017 a knockout blow for ticket touts?

A record breaking 90,000 fans packed out Wembley stadium recently to witness the heavyweight title clash between Anthony Joshua and Vladimir Klitschko, but how many of them purchased a ticket at face value?

The event sold out within minutes and shortly afterwards, secondary ticket websites featured tickets for resale at extortionate prices. According to Boxing News, Viagogo was advertising an inner ringside VIP ticket for £88,000 (face value £2,000) and £26,399 for a seat in row 10 (face value £400 – £800). Although many would question how fair this is, it is in fact not illegal to resell tickets and there is no resale price limit.

The recently passed Digital Economy Act 2017 (DEA) is set to change that and may now prevent tickets being snapped up and resold at inflated prices.

The most significant change is to the regulation of ticket buying bots (Bots), which use computer software to purchase large amounts of tickets online at high speed – faster than a person. The newly implemented DEA will provide further clarity on the consumer protection laws already in place, primarily by requiring information from the ticket seller and imposing criminal sanctions for acts involving the use of Bots to purchase tickets online.

Amendments have also been made to the Consumer Rights Act 2015 to include mandatory information requirements when sellers (acting as a business or as an individual) wish to trade online. Before a buyer can be bound by any terms of sale, the following information relating to the purchase must now be provided: seat name or number; row, seating or standing location; area of the venue; ticket or booking reference; and specific conditions. It is also important to note that if the ticket has any applicable conditions (for example, restricting the ability to resell) then this has to be disclosed prior to purchase. A failure to provide the information is punishable by way of a fine of up to £5,000. Under the DEA, there is now the ability to create an offence against people breaching the limits on purchasing a number of tickets for a recreational, sporting or cultural event in the UK.

Although the DEA will primarily relate to online purchases, there may still be an impact on the street tout, especially if they’ve used a Bot to purchase their stock. Although it’s not illegal to buy or sell tickets on the street, the tout is still obligated to provide buyers with sufficient information to make an informed decision. It is therefore not the end for touts, however, the new law prevents them using Bots to bulk purchase tickets as they come on sale. This should, in theory, reduce the number of tickets offered for resale both online and on the street.

Aside from the new legislation, more can be done to ensure consumers are both protected and have a fairer chance of obtaining tickets at face value, while still allowing the secondary ticket market to thrive. Promoters can, for example, place terms and conditions on tickets in respect of the ability to resell, or even appoint exclusive resellers.

From the perspective of the secondary ticket market, it could be argued that they should do more to identify buyers who are not interested in attending events and are simply facilitating the mass buying and selling of tickets for profit, particularly those who are acting in a fraudulent manner. The platforms should ideally look to work with organisers, athletes, performers and enforcement bodies to create sustainable measures that will allow them to continue to make profit from the resale of tickets.

The only way that the new laws will have any impact is for enforcement action to take place to demonstrate to the touts that there is a risk and consequence to their actions. The law is focused on protecting consumers, so enforcers should act within their powers accordingly to do so.

We will have to wait to see the true impact of the DEA on the secondary ticket market, but the new law is a step in the right direction – perhaps analogous to Anthony Joshua’s uppercut in the 11th round, it won’t end the fight but it has certainly set up the beginning of the end.

This article was written by Ryan Adams, Commercial and Sports Law Solicitor at Shulmans LLP. For more information, please visit www.shulmans.co.uk or call 0113 288 2817

LEGAL: Steps to avoid reputational damage when tackling online defamation

Sports clubs are being urged to act immediately to minimise reputational damage when their employees or directors are the target of online defamatory remarks.

The advice from hlw Keeble Hawson litigation specialist, Andrew Broadbent, follows a recent case where a Blackpool Football Club staff member secured £18k in damages for a defamatory post relating to a lawyer on an online fan’s message board.

The solicitor was untruthfully described in the Blackpool FC “Fansonline” forum as “the well-known struck off solicitor Graham Woodward”. The post was also repeated on another website, although the fan denied submitting the post.

Aligned with the growing public and judicial desire to stamp out a culture of harassment and bullying that can blight professional sport clubs, Andrew outlines four steps for sport businesses who find themselves at the centre of online smears.

Act quickly to minimise reputational risks. A long delay in challenging a defamatory remark can jeopardise a successful claim.
Preserve the evidence by quickly securing a copy of the offending comments. Web postings (particularly those on social media) can easily be removed and may be very difficult to locate subsequently.
Resist the temptation to respond to the upsetting material. A spat in a public forum is likely to draw further attention to the defamatory remark and is likely to be counterproductive.
Establish a consistent approach to dealing with defamatory remarks. A reputation for taking a firm but fair line can be effective in preventing further defamatory comments.

Always take expert advice from an experienced solicitor, who can guide you on the most appropriate course – then put this into action.

Andrew Broadbent, hlw Keeble Hawson, advises clubs to be pro-active when it comes to avoiding reputational damage

For more information, contact Andrew Broadbent on 0114 252 1416 or andrewbroadbent@hlwkeeblehawson.co.uk

hlw Keeble Hawson, an expert in defamation law, has successfully pursued a number of individuals in respect of defamatory remarks made on fan’s forums and on social media.

The firm, which has offices in Sheffield, Leeds and Doncaster, has acted behalf of football clubs and other organisations and individuals – obtaining immediate written retractions/apologies and payment of substantial damages.

ARTICLE: More than just a stadium…Patrick Brown from the Sports Business team at law firm Lewis Silkin

Patrick Brown, Associate in the Sports Business team at law firm Lewis Silkin, reviews trends in stadium commercialisation, local council involvement in development and the rise of fan ownership and influence in the status of stadiums

More than just a stadium…

However it’s done, whether being rebuilt from scratch (Tottenham Hotspur, Chelsea, Arsenal), expanded (Liverpool) or converted from other uses (West Ham, Manchester City), football stadiums are big business, and vital community assets. There are, though, some vital legal and commercial factors that stadium owners and managers should bear in mind when looking to redevelop.

Commercialisation

Quite simply, it is no longer commercially acceptable to sell a ticket and a pie and be done with it, and clubs are looking at ways to generate revenue all year.

When new stadiums are constructed, it’s no coincidence that box numbers go up, along with the capacity, as clubs seek to eke out every penny from their supporters, and new ways to capitalise on the myriad food, drink and merchandise opportunities are adopted. Chelsea are more restricted by space for their ongoing redevelopment, meaning they will dig down in order to increase capacity to a reported 60,000, while Tottenham have gone so far as to include the UK’s longest bar, a micro-brewery capable of delivering 10,000 pints a minute and even an in-house bakery.

Ground-sharing – particularly between rugby clubs (who typically have less money) and football clubs (Reading’s Madejski Stadium hosting London Irish, Wasps moving to Coventry City’s Ricoh Arena) – is another key means of bolstering receipts beyond match days. NFL’s popularity in the UK has offered further opportunities. Tottenham are redesigning their new stadium to enable a retractable grass pitch to slide on top of a permanent artificial NFL pitch and incorporated NFL-size (i.e. much bigger) locker rooms alongside a number of other features. Tottenham have agreed a deal to host at least two games a season for the next ten years which will bring in extra revenue, as well as promoting their brand further in the US. Twickenham are already in on the act and look set for more tie-ups in coming years.

Council counsel

Local councils have historically sought to gain as much as possible for their constituents from stadium developments, and sport-led regeneration has had dramatic impacts around the country in recent years.

Councils have sought these benefits in two ways. Firstly, by using the stadium to attract new businesses and families to the area. Secondly, by securing planning obligations under section 106 agreements. Arsenal for example, whose move from Highbury to the Emirates took place in the early 2000s, had extensive obligations to comply with, including funding a £60m waste-recycling centre near Holloway Road and 3,000 new homes, as well as contributing towards improvements to both Drayton Park and Holloway Road tubes.

However, with tighter guidelines now in place these regulations are not as wide-reaching as they once were and, generally, a council would not want to scare off a club by attempting to impose onerous obligations. For example, Haringey council was reportedly desperate to accommodate Tottenham rather than risk it moving to neighbouring Enfield, or to the former Olympic Stadium, and miss out on the local regeneration and income the stadium would bring. Tottenham were therefore able to negotiate a more advantageous planning permission. Although developing a new hotel, a Sainsbury’s megastore, new public square and extreme sports centre (hopefully bringing jobs) the club will make comparatively low financial contributions to the council.

Mind the community

Meanwhile, for fans and local groups who benefit culturally and economically from an existing stadium, and who may fear the ramifications of upheaval, a practical way of keeping a club rooted is through the Assets of Community Value (“ACV”) regime in The Localism Act 2011. Listing as an ACV prevents an owner from selling a stadium without a supporters group first being alerted and given the chance to make a bid. Oxford United Supporters Trust protected the Kassam Stadium back in May 2013, and Old Trafford, Portman Road, The Valley and St Andrews stadiums have since been successfully listed.

Of course, it is not all sweetness and light with many seeing ‘regeneration’ as synonymous with ‘gentrification’, and local residents routinely forced out of their homes by either compulsory purchase orders (CPO) or by escalating costs. Indeed, even clubs in more precarious positions than those discussed above can come under threat of CPO when competing interests are at play – just look at Millwall.

A stadium’s legacy is impossible to predict but what is certain is that stadiums are playing an increasingly central role to both a club’s and its local area’s future, and innovative means of attracting new supporters and maximising revenue look set to continue apace.

Contact: Patrick Brown, Associate in the Sports Business team at law firm Lewis Silkin

VENUE DEVELOPMENT NEWS: York procurement questioned; Dalymount Park upgrade, Irish arena opens

Local governance campaigner Gwen Swinburn has listed nine reasons at an executive meeting why she believed the Monks Cross project, including York Community Stadium, breached UK and EU procurement laws. These included the use of a competitive dialogue procedure under 2006 public contracts legislation, under which negotiations were not allowed after the tender was received, bar minor tweaks.

York CEO Mary Weastell apologised for the delay in responding to the complaint, which was due to independent legal advice she had been given. She said the council had ‘throughout had proper regard to the regulatory framework within which this procurement is taking place’. She said the contract for the stadium project was being run under the competitive dialogue procedure, which was specifically introduced to help procuring authorities work up with bidders suitable solutions for their tendered requirements and was designed to be flexible.

The project recently overcame a legal challenge from a cinema involved in the development.

Dalymount Park upgrade

Dublin City Council says it will make a submission to the Government for funding for a €20 million redevelopment of Dalymount Park.

The council, which bought the Phibsborough sports ground in 2015 from Bohemians football club for €3.8 million, will own and run the new 10,000-seater stadium. No funding for the project is expected to come from the Football Association of Ireland (FAI).

In November 2016 the council acquired the lease on Tolka Park, the home of Shelbourne football club and both clubs are to become tenants at Dalymount. However, neither club will have naming rights which will remain with the council.

Pending the redevelopment of Dalymount, Shelbourne will continue to play out of Tolka Park. During the demolition and reconstruction project, Bohemians will also use the Drumcondra football ground. The council has yet to determine the future use of Tolka Park.

The council has been in discussions with the clubs and the FAI about their requirements, project manager Don Daly said.

The accommodation brief is currently being finalised and the business case, which is required for the funding application, will be completed by early in the new year.

We own the stadium and we will run it. It will based on a European model where local authorities own and manage their stadiums. The FAI will have an advisory role, but they are not part-funding the project. We are hoping to get most of the funding from central Government.

National Indoor Arena opens

Ireland’s indoor arena has opened its doors.

Ireland’s Indoor Arena officially opened

CONSTRUCTION MANAGEMENT: JCT launches Design and Build Contract 2016

The Joint Contracts Tribunal (JCT) has launched the Design and Build Contract family as part of the release of its 2016 Edition of contracts. Design and Build contracts are available to purchase at JCT’s online store (www.jctltd.co.uk).

New features included in the Design and Build contracts as part of the 2016 update include:

Incorporation of the provisions of the JCT Public Sector Supplement 2011 that relate to Fair Payment, Transparency & BIM.
Adjustments to reflect the Construction (Design & Management) Regulations 2015 and the Public Contracts Regulations 2015.
Amendments to the works and existing structures insurance provisions to make them more flexible.
Revision and simplification of the Section 4 Payment provisions, including:
- Establishing (for Fair Payment purposes) Interim Valuation Dates that apply to main contract, sub-contract and sub-subcontract levels
- Increasing flexibility in relation to fluctuations provisions
- Consolidating the notice requirements of the Housing Grants, Construction & Regeneration Act 1996.
Inclusion of provisions for the grant of Performance Bonds and Parent Company guarantees.
Extension of the optional provisions for Collateral Warranties from sub-contractors to include Third Party Rights.

The 2016 Edition of the Design and Build Contract family includes:

Design and Build Contract (DB)

Design and Build Contract Guide (DB/G)

Design and Build Sub-Contract Agreement (DBSub/A)

Design and Build Sub-Contract Conditions (DBSub/C)

Design and Build Sub-Contract Guide (DBSub/G)

Design and Build Contract (DB) Tracked Change Document

Tracked change versions of the Design and Build Sub-Contract Agreement (DBSub/A) and Conditions (DBSub/C) are also available via the Docdel service. Users should visit www.jctltd.co.uk/category/jct-tracked-change for more information.

JCT chief executive, Neil Gower, said:

JCT has been working hard to ensure the timely release of contract families from its 2016 Edition, and we are pleased to announce the release of the Design and Build Contract, a form that is used and recognised widely, and the release of which will have been highly anticipated by the industry.

Design and Build 2016 provides a series of essential updates and enhanced flexibility for JCT users.

JCT customers can purchase Design and Build 2016 contracts by visiting JCT’s online store.

JCT users are encouraged to join the JCT Network – a new resource specifically for JCT users to receive first notification of information and details of new products becoming available.

ACCESSIBILITY: Level Playing Field evidence to Accessibility of sports stadia inquiry

Joyce Cook OBE, Chair, Level Playing Field, and Ruth Hopkins, General Manager, Level Playing Field, recently gave evidence to the Accessibility of sports stadia inquiry. Read her comments in full, which include her concern about the amount of excuses that still abound that it is not possible; it is too expensive. She says that with smart, low-cost solutions very much is possible. But that it is not all only about infrastructure. There are lots of other aspects in regards to service and information.

Below is Joyce Cook’s opening statement. The full evidence is on parliament’s web site.

First of all, thank you very much for inviting us. We are really delighted that the Select Committee is focused on our topic. It is something we have been passionate about for a very long time and been aware that it has been a serious issue for a very long time. If we just reflect, the Disability Discrimination Act first came into practice 20 years ago and here we are, after all of this time, still in this current situation. Yes, there is rightly progress, but we still have a great deal to do.

One of the biggest concerns I have is the amount of excuses that still abound that it is not possible; it is too expensive. We have endless examples where with smart, low-cost solutions very much is possible. It is not all only about infrastructure. There are lots of other aspects in regards to service and information. If I may I will just touch on a few of those now.

Our primary focus has been over the years on football, but from 2008 we began to get involved with other sports. We have a feel for other sports, but our real intelligence, for want of a better description, is around football and our day-to-day work is largely on football, although we have had some great interaction and really positive steps with cricket, premiership rugby and rugby league more recently.

I think it is worth us all remembering that this is the largest minority group. We talk about disabled people; we talk about 15% of the population and rising. I think we often forget that. This is a very large number of people that I think at the moment are getting a really raw deal. What is clear to me and to us as an organisation is that disabled fans in particular realised from the great experiences and positive experiences they had around London 2012 just what they were missing at matches week in, week out. We saw a significant increase in complaints after that because, quite rightly, their expectations were raised.

It is also worth noting that it is much more than just being about a football match. It is about a sense of belonging, well-being, self-esteem. We often forget that. We quite rightly talk about the health benefits of sports participation for disabled people, but the well-being, social inclusion, removal of isolation and so on is critically important. We have examples. My own example: I spent two years when I became disabled just before I was 40 that I did not leave the house. I look back; I was probably depressed. I stopped engaging with life, yet I had had a really busy job—I had worked as a sales manager in Europe—a busy social life, and I completely withdrew from the world. A game of football gave me my life back and we have endless similar testimony. It is about so much more but, of course, it is about the basic right to be able to do what everybody else maybe takes more for granted.

We have issues with disabled people who want to go to matches with family and friends and have to sit in a different stand. We have issues whereby disabled football fans, where it is so important to sit with your own fans, are having to sit as away fans with the home fans, often complaining that they are asked to hide their team colours, not to celebrate goals. We have lots of incidents where disabled people go to a football match, particularly ambulant disabled fans and wheelchair users, whereby they sit and at every exciting moment of the game the crowd stands up to watch a goal being scored or to watch a free kick being taken or whatever it might be and they miss those critical moments. That is all part of being in the stadium and enjoying that. These may be fans that have travelled half the country and, with respect, although public transport is greatly improving, it can still be a real challenge as a disabled person.

That touches on another issue. If we think about a disabled person who decides they want to go to a sporting event, they have to think about, first of all, how am I going to get there; how am I going to get a ticket; what is it going to be like when I am there; I particularly need reassurance that I am going to be properly accommodated; will there be toilets I can use, all those things that most of us just instinctively accept that it will all be laid on for us.

Most of the websites are still inaccessible, some completely inaccessible. If I use voice-activated software as a blind person, for example, the websites are inaccessible. The places where the information lies around clubs and stadiums, if it does exist on the website, it varies where it is located. It is like a whole exercise in detecting to be able to find that information in the first place, and mostly you cannot.

Lifts

Facilities for the blind (RNIB)

Sensory

Ergonomics

LEGAL: Lawyers warn sports clubs: protect client data

Stadium box offices and CRM departments take note: A new ruling means compensation is now payable without the need to show financial loss in event of data breaches.

Moore Blatch, one of the UK’s leading commercial and technology law firms, is warning sports clubs and leisure centres that they could be hit with compensation claims in the event of a data protection breach even if no ‘financial loss’ occurs.

This follows the ruling in last month’s Google Inc. v Vidal-Hall Court case, where the Court of Appeal clarified the rules under the Data Protection Act 1988, which were previously interpreted as allowing compensation claims only if a data breach caused a financial loss.

Following clarification by the Court, Clause 13 of the Act will now be interpreted so that financial loss no longer needs to be shown for a compensation claim for emotional impact on the claimant, such as anxiety or distress. The previous interpretation had meant that compensation was not available for most breaches.

Furthermore, Moore Blatch warns that while all reputable organisations follow good data protection policies, more stringent practices need to be in place for data where a financial risk might be exposed by a data breach, such as the holding of bank or credit card details, as “appropriate measures” will be tougher in the financial sector.

The decision is likely to have a number of potentially wide-ranging implications, including an increase in claims for compensation under Clause 13, and a likely rise in class actions, in which a large number of individuals have suffered emotional distress or invasion of privacy due to the same data breach. Such claims could be very costly to any kind of sports or leisure club in terms of damages.

John Warchus, partner, Moore Blatch, says:

Sports and leisure clubs, or indeed anyone in control of client data, will now have an even stronger incentive to comply with data protection rules. The decision by the Court of Appeal is also consistent with the likely future trend of data protection legislation – the draft EU Data Protection Regulation will mean that someone can seek damages regardless of a financial loss. Sports clubs should urgently review their data protection procedures and strengthen where necessary as more compensation claims are likely and the amount of damages awarded is also likely to increase.

Legal aspects of venues taken care of by Foot Anstey

The events and venues lawyers at Foot Anstey have a strong reputation for advising on the regulatory requirements of venues sports stadiums and outdoor events. This capability includes all aspects of the Health and Safety Act, Licensing 2003 Act issues (including new applications and variations, sub-committee hearings, appeals and reviews), Safety Certification, Crowd Management and Environmental issues (such as noise management and waste disposal).

Foot Anstey also assists on commercial matters such as artist and supplier contracts, police costs, data protection and marketing law, terms and conditions, ticketing, merchandising and insurance and employment law issues.

Foot Anstey is pleased to provide a 10% discount on legal fees and a free initial consultation to UKVMA members to help identify risk areas.

Key contact is Chris Pritchett, Partner.

Chris is a member of the Institute of Licensing, Football Safety Officers Association, the Association of Festival Organisers, the National Outdoor Events Association and the Gambling Commission Industry Forum.

Sources praise the quality of his advice and also the level of understanding and enthusiasm that he displays.

Chambers 2013

Foot Anstey is one of the West’s fastest growing firms with over 200 legal specialists. It offers a broad range of legal services, is ranked in The Lawyer’s UK Top 100 Law Firms and was named Regional Law Firm at the British Legal Awards

Contact: chris.pritchett@footanstey.com. Tel: 0117 915 4900