Ever since the English Roses won Commonwealth Gold on the Gold Coast in Australia last year, the interest and participation surrounding netball has been on the increase. Already a popular sport at club and school level, netball is now beginning to enjoy the same opportunities of other sports.
The interest and engagement is only set to increase when the Netball World Cup starts in Liverpool at the ACC Liverpool campus on 12 July 2019. The entire competition, including training, warm ups and matches will be based at the ACC Liverpool. The campus is made up of the M&S Bank Area Liverpool, BT Convention Centre and Exhibition Centre Liverpool. This multi-purpose facility has hosted a variety of events, including BBC Sports Personality of the Year and Championship Boxing, and is indicative of the type of multi-use real estate which is now so popular.
When this type of development is done well, it can only be seen as a positive as it increases the use and productivity of a single enterprise. The danger for developers of course is that, in trying to make a development as versatile as possible, they do not deliver on the buildings which were needed. Features such as folding walls, which can be used to sub divide larger spaces, or rows of chairs which can be folded back to create a large surface area, may not always justify the increased cost of development.
Equally, there is a danger that such developments, in seeking to accommodate every type of event, all become too similar. Whilst sporting venues such as Lord’s or Twickenham will doubtless have their own limitations, their individuality and instant association with certain sports can be seen as a strength, rather than a limiting factor in how they can be used as a venue.
This, however, does not seem to be the case for many of the multipurpose buildings which the England Roses and Netball Superleague teams use. Instead, netball has used its access to such real estate to its advantage and encouraged large crowds with exciting and fast paced entertainment. Rather than tying itself to a particular arena, international netball takes place in a variety of locations around the country. This fluidity means that organisers can adapt the venue to the type of event they wish to create and are not limited to a specific venue in a fixed area of the country.
Whilst Superleague teams have their ‘home’ courts and the Copperbox in London has become synonymous with netball, these are still usually part of wider sporting developments such as universities. Instead, netball can take advantage of its ever increasing popularity by staging events in larger arenas, without needing to provide the capital to build or funds to maintain courts or other infrastructure. It also means that large amounts of capital do not need to be invested in building an arena which will need maintaining and may even become superfluous due to its position or size.
The venue for the Netball World Cup has a variety of spaces which are all being used to their full potential. The matches will all take place inside the M&S Bank Arena Liverpool with the warm up courts and hospitality events accommodated in the adjoining BT Convention Centre. There will also be a ‘fan park’ at Chavasse Park where fans can watch the matches on a big screen whilst taking part in social media activities and sampling the variety of food vendors and live music which are promised.
Similarly, the M&S Bank Arena will have a variety of activities happening outside it before, during and after the netball. The multi-faceted nature of developments such as the ACC Liverpool means that organisers can spread the atmosphere of the event. Ticket holders are not tied to their seats but can go and enjoy other aspects of the World Cup after the matches. Similarly, those who were not lucky enough to get tickets can still take part in the action.
Using the variety of spaces and environments which the ACC Liverpool can offer, the Netball World Cup is sure to build on the Roses’ success down under. Let’s hope that they can go for gold again on home soil.
In the era of athleisure fashion, sportswear branding is a highly valuable asset. Sportswear companies commonly use a themed type of branding, rather than an exactly identical mark, applied in inventive ways across their product portfolios. While that works well as a customer engagement tool, it is dangerous from a trade mark perspective.
Trade mark protection relies on clearly defined boundaries around the registered word or logo. This is understandable – allowing broad and flexible brand protection for one producer cuts down the freedom of movement for others. But brand-owners should take care that their embrace of modern branding practices does not undermine protection of their trade mark assets.
Last week brought bad news for sportswear brand Adidas. Its EU-wide Community Trade Mark registration for three parallel stripes was rejected again, this time by the EU General Court. (You can see the ruling here.) We consider why below.
Relying on market recognition
Adidas had already accepted defeat on whether the trade mark was inherently distinctive, focusing its arguments on distinctiveness acquired through use of the trade mark in the market.
Briefly, inherent distinctiveness is when the chosen word, image etc. is able on its own to act as a link between branded products and a particular source without the need to rely on existing presence in the market. The three stripes on their own were not enough to jump that hurdle.
Failing that, Adidas needed to show that market recognition developed over time had reached the point where people across the EU would know that the branding linked back to Adidas. But this brought with it the challenge of proving that the trade mark as registered had become distinctive of the company for consumers in all 28 EU countries.
A mountain of evidence was not enough
Adidas had submitted a huge quantity of evidence including:
images of its three stripes marking across a range of clothing, bags etc,
survey evidence linking the three stripes with Adidas as a producer of sportswear and related products, and
information about its annual spend on marketing.
This did not get them over the line. Why?
The main problem was the court’s view of how close the various uses were to the mark as registered. Differences in colour (white on black rather than black on white), dimensions, whether the stripes were vertical or slanted, cut-off at a slanted angle, were all seen as differences going beyond “insignificant variations”. Given the simplicity of the registered mark, changes like these very easily became “significant.” As the EU court explained:
“the simpler the mark, the less likely it is to have a distinctive character and the more likely it is for an alteration to that mark to affect one of its essential characteristics and the perception of that mark by the relevant public”
Much of the imagery filed in support of the brand family in use was dismissed out of hand as too far removed from the registered image to be helpful.
The information submitted about marketing spend could have been helpful, but it was not broken down sufficiently to show investment in the narrow form of the brand, or the brand as used on sportswear as opposed to other goods.
The third category of evidence used was extensive market survey evidence in ten countries. This is expensive and time-consuming to collect and so it is really important to make sure that it is carefully planned in advance. Here, there were flaws in the survey evidence in terms of the questions asked and the branding shown to participants. Most of it was disregarded.
Showing distinctive character across the whole EU
EU-wide registered trade marks offer the great advantage of equal protection across all 28 member states. But when a brand-owner relies on proving distinctiveness through use, they will have the uphill struggle of establishing distinctiveness in all countries. This does not necessarily mean separate survey evidence in every country. But other evidence will be needed to show, for example, that a group of countries comprise a single distribution network and are treated as if they were a single national market. Another approach is to demonstrate that geographic, cultural or linguistic closeness means that consumers in one country are sufficiently familiar with the market of another to be treated as one.
Take away points
This ruling makes depressing reading for owners of modern, flexible brands, who use a stable of related forms of branding across a wide range of products in ways adapted to suit the style and colour scheme of the product in question. The right approach may now be to file numerous different applications each protecting a narrower range of usage styles.
Very simple logo branding looks vulnerable. Although proving distinctiveness through use remains an option, brand-owners would do well to stick closely to one style and avoid introducing too much variation.
Finally, where defence of the trade mark through litigation becomes necessary, a careful review of this ruling will help brand-owners to build an effective case and avoid some of the pitfalls that the court identifies.
If you require any assistance with trade marks or brand protection or wish to discuss anything in this article, please contact Ed Hadcock or Isabel Teare.
To readers who, unlike the author, have a solid sporting professional reputation, here’s an expensive lesson in why it’s important to protect your brand early:
Back in 2012 one Mr Moreira applied to register the word sign ‘NEYMAR’ with the EU Intellectual Property Office.
Neymar at this point was already one of the world’s most marketable athletes - 20 years old, played for the Brazilian national team and had just been named South American Footballer of the Year. Despite this (and gearing up for a move to Barca) he had not yet protected his brand in Europe.
So, in the absence of any other registration, Mr Moreira’s application succeeded, and the word NEYMAR was registered to him in January 2013 for goods classified as ‘clothing, footwear and headgear’.
The Appeal Court found, drawing on the tastily named Chocoladefabriken Lindt & Sprüngli case, that Mr Moreira’s application was made in bad faith. His intention behind the NEYMAR registration had been to take advantage of an association with Neymar’s renown. He would have known of Neymar’s reputation and would have anticipated a likely potential transfer to Europe (as a prime destination for aspiring footballers).
Mr Moreira argued he had registered NEYMAR purely coincidentally because of its charming phonetics – he had not connected the word and the internationally-recognised footballer. Was this also the case when he attempted to register ‘IKER CASILLAS’ on the same day in 2012? The court was not convinced, and Neymar was allowed to keep his neym.
Formula One (F1) is widely regarded as the pinnacle of world motorsport and is an industry worth around $4 billion a year.
In total, the ten F1 teams spend around $2.6 billion a year on technology, research and development in order to make their cars that split second faster than their competitors in pursuit of F1 glory.
With 7 out of the 10 F1 teams based in “Motorsport Valley” (an area covering the Midlands and Oxfordshire), the heart of F1 is well and truly embedded in Britain. However, with Britain’s exit from the European Union fast approaching, is this niche industry under threat and does Britain risk losing the jewel in the F1 crown to other countries?
Broadly speaking, the automotive sector as a whole currently has a shortage of around 20,000 professionals. Against a backdrop of falling domestic car sales of leading manufacturers such as Jaguar Land Rover, and Nissan’s recent decision not to build its next generation X-Trail model at its flagship factory in Sunderland, the industry is clearly in transition and facing immediate difficulties, with further difficulties undoubtedly on the horizon.
The obvious concern for F1 is how these wider automotive issues may replicate themselves in the motorsport industry, which remains fiercely competitive and already in a state of transition in light of its changing regulations.
One of the primary issues facing F1 is logistics. Jonathan Neale, the chief operating officer at McLaren, has recently explained how: “McLaren F1 takes 40 tons and 100 people and we pop up at an event every two weeks around the globe in 20 countries and five continents, through variety of customs borders, to put the show on the road. Currently there are well-trodden paths in how we manage customs and borders in order to move seamlessly.”
The real worry is that such “well-trodden paths” and the seamless transition between customs and borders that is currently enjoyed become restricted or blocked in light of Brexit, with extra administrative burdens and costs placed on teams as they travel across the globe to compete in races. With each team possessing a workforce of varying nationalities, Neale suggests that there is a real risk in F1 teams’ abilities to “deliver the show” given the potential delays that may ensue in light of more restrictive cross-border measures.
Talent acquisition and retention is also at the forefront of the Brexit uncertainty for F1 teams. McLaren’s F1 team employs over 800 people and in its engineering group alone there are 23 different nationalities. Obtaining such a diverse workforce is of paramount importance to McLaren and Neale is alive to the real risk of “getting into crazy, administratively costly and time-consuming visa requirements either for retention or for future recruitment”. Quite rightly, McLaren (as well as the other F1 teams) want to be able to hire talent on the basis of the right person for the job, and not have to worry about whether that person’s nationality will pose an administrative visa burden.
Aside from the obvious logistical issues and workforce supply, another key area most likely to be affected is the supply chain. An F1 car has about 14,000 parts, with the majority of these parts sources from a number of small-to-medium size enterprises in the UK and across Europe. Indeed, some complex assemblies will cross many borders before they arrive in the UK. Neale explains that “if every time a border is crossed there is a transaction, it introduces a huge amount of inertia and inefficiency to our supply chain”. Clearly with inefficiency comes extra cost; which is arguably money that ought to be invested by F1 teams in the supply chain and not in dealing with further administrative and logistical road-blocks.
With 29 March 2019 fast approaching and a no deal Brexit looking a distinct possibility, F1 teams (and the automotive industry generally) must be alive to the obstacles that may be on the horizon. The risk of Britain losing the jewels in the F1 crown in the event of F1 teams relocating elsewhere in the EU after Brexit is genuine and would be a huge blow to F1 and the primarily British-focused supply chain that underpins the sport. While we hope that such legacy remains intact and Britain remains the heartbeat of F1, the uncertainties of a no-deal Brexit could well and truly put the brakes on F1 as we know it.
All British sports fans know that 2019 will be huge. The ICC Cricket World Cup, the FIFA Women’s World Cup, a home Ashes series, the Netball World Cup and a Rugby World Cup. It’s enormously exciting.
2019 is also shaping up to be a highly significant year off the pitch, particularly in the worlds of sports technology and media. A number of key future developments will have massive implications on the manner in which audiences consume sport, and how industry revenues will be generated. Will, for example, this be the year of Virtual Reality, will rights holders unlock the full power of big data, will more cords be cut, will eSports be fully embraced by the mainstream?
As we tick off (a dry?) January (and the fog of the New Year has definitely lifted!), we asked a wide range of clients, industry friends and colleagues to gaze into the future and predict what lies ahead for the remainder of the year. This is what they see…
Dan McLaren, Head of Digital, SQN (and founder of Digital Sport)
“2019 will be an interesting one for technology within sport as it becomes more accepted and the market is now more mature. It is probably still a bit early to be talking big movements within voice activation, but audio will play a significant role (podcasts, radio). Greater resources are now going into 'immersive experiences' as we look at how XR really makes a difference within the industry. Watch esports especially in this space and ESL's Weavr project. And finally, AI (and I include machine learning in this) as software giants such as Microsoft go big in this area - the repercussions this will have for business and entertainment could be huge.
One other hot topic is remote production, something Tata Communications, an SQN client, offer so successfully to so many sporting properties such as MotoGP, Formula 1 and the European Tour. I believe it will become more prevalent enabling broadcasters and sporting properties to change their business model, saving huge costs and improving quality of life for their employees by sending fewer people to site for events. The low latency, i.e. no delay between what you see at the venue and what you see thousands of miles away, enables the game to change in many significant ways.“
Sarah Whyman, Senior Associate and technology specialist, Mills & Reeve
“I think that another major sports stadium will trial biometric access control for access to a sporting event. This could perhaps be facial or finger print recognition. We’ve already seen it happen at the Yankee Stadium in New York. This could speed up entry for participants and help enhance security, which is becoming increasingly important. Will the top UK Premier League clubs be convinced? I think at least one will be in 2019.”
Carsten Couchouron, Founder, Sports Tech Hub Copenhagen (formerly Marketing & Commercial Director, European Professional Club Rugby)
"The flourishing sports and health tech ecosystem will establish itself in 2019 as a significant driver of innovation leading to positive societal change and better health. Sports Tech Hub Copenhagen intends to play its part by providing innovative sports tech start-ups in Denmark and the Nordics with an environment for accelerated growth."
“This year we should finally start to see the manifestation of smart stadiums and arenas. The main focus will be on fan digital engagement, such as monitoring player’s performances and pre-ordering food and beverage with the aid of cashless technology. Also watch out for Augmented Reality and how it will enhance the experience of remote fans that aren’t able to attend live events.”
Tom Kingsley, Director, Sport Industry Group Leader, EY
“2019 will be all about fan engagement. The headlines will be driven by both the ongoing explosion in OTT and the continuing rise of AI, VR, IoT and other acronymic engagement techniques. Live performance data as fan content will become more prevalent as audiences demand an ever more immersive experience. This will create opportunities and challenges for sports rights holders as they grapple with the technology and the regulatory and competitive questions that will arise from the sharing of this data.
Alongside the on-going disaggregation of the channels through which fans engage with sport, a polarisation of content consumption will mean that while some fans will continue to only be interested in clips and super bite-size content nuggets, many others will be seeking out long-form content with high quality production values. To compound matters many fans will actually be fishing at both ends of this particular content spectrum.
How to maximise the engagement with fans and how to ultimately commercialise that engagement will be what keeps sports rights holders up at night this year. Is sport up to the challenge? Of course it is. It always is. The only real question, as ever, will be who’s going to win?”
Rupert Harris, CEO, Animal Vegetable Mineral
“2019 will be the year when sports broadcasting takes its first tentative steps into 4 dimensions. No this isn’t a rehash of 3D TV, but the advent of the volumetric video era, which will take fans from the stands and onto the field of play, Gamer-style.
What is currently the preserve of game engines will become the state of the art for live action. Gladiatorial sports like boxing and UFC will take the lead, enabling fans with a headset to step onto the field of play and witness just how furious Tyson looks from the end of that jab.
Prediction 2: Putting a lid on Pandora's box.
2020 will see sports clubs and lawyers spend more and more time working out how to get a contractual slice of the social media action from the players they're making famous. In a world where personality is the differential, anodyne club content will look increasingly perfunctory, pushing engagement back into the players hands and their pockets.”
Oliver Weingarten, CEO, LDN UTD
“VR to prove it is not a fad, and is here to stay, alongside AR and MR.”
Andre Tegner, Founder and CEO, Studio 54 LLP and Director, Leeds United FC
“This might be more a wish than a prediction but, while I am still not bullish on VR, I hope to see some nice AR applications in 2019 that go beyond just being a gimmick.”
Sam Barton, Director, Dsrptr
“Esports: Titles such as Fortnite, FIFA and Smash continue to generate strong interest from gamers and the industry is expected to hit a global revenue of approximately $1.5b in 2020. YouTubers and streaming platforms such as Twitch creating engaging content reaching millennial audiences often difficult for corporates to effectively engage.
Athlete performance analytics: Monitoring, measuring, and predicting athlete training, performance and injury prevention will continue to drive value optimising on-field performance.
Immersive media: The evolution of the media channels, Internet, HDTV, OTT continue to drive fan engagement by honing in on the content fans want to see and consume as and when they like.
Smart venues: New stadium developments are seeking to optimised the fan match-day experience using technology to simplify ticket and food purchasing, incentivised marketing at the game and returning safely home. Keep an eye out for a stronger focus on Esports enabled venues.
Gambling: Following the USA Supreme Court decision in May 2018, allowing individual states to determine whether to legalise sports wagering, it's rare to see a pitch deck which doesn’t comment on how gambling can be built into a revenue model.
Co-watching: Camera-equipped devices connecting fans via video and chat in their living rooms also an emerging area of interest.”
Dan Bedi, Founder and CEO, JAFA
“Sports fans will begin to use Twitter less and use more bespoke platforms around differing discussions and original content.
Athletes will engage with fans less on social media and more through bespoke platforms (managed environments).”
Laura Canham, Associate and technology and IP specialist, Mills & Reeve
“I think we’ll have an exciting 2019 in SportsTech; I am hoping to see an increase in the use of fan engagement platforms (like JAFA) and more sponsor and broadcaster investment in eSports to further accelerate the growth of clubs, leagues and gamer wage packets.”
Sanjiv Arora, Senior Sports Business and Integrity Lawyer (formerly with FIFA and beIN Sports)
“Many of the big digital platforms and OTT services experienced (or saw their competitors experience) serious problems in 2018 in the streaming of a number of major sports events, including the FIFA World Cup, the US Open tennis, Serie A and La Liga. As such, those digital platform operators will use a considerable part of 2019 to learn from those experiences to prevent a reoccurrence. Before taking the plunge in 2019 on an acquisition of further premium rights, including Premier League matches, most operators will want to be absolutely sure that those sorts of problems are a thing of the past.”
Julian Moore, Head of Sport (London), Mills & Reeve
“The brilliant Netflix documentary, “Sunderland Till I Die”, has set new standards for the production of non-live/behind-the-scenes sports content. Expect the creation and release of many more similarly deeply engaging, real-life and gritty sports documentaries, in particular from the real stars of the show, the athletes and players. The days of bland, saccharine, glossy content are behind us. Also, on a more personal note, by the end of the year we’ll see Luton Town in the play-off slots in the Championship and diggers and workmen lining up to start work on its shiny, new, state of the art, smart/connected, town-centre stadium.”
Robin Jellis, Commercial Strategy Manager, DAZN
“We’ve seen a shift towards OTT distribution in recent years – with the rise of entertainment services such as Netflix, the roll out of DAZN in multiple territories, and legacy media players pivoting to have an OTT offering of their own – and I think this trend will continue to grow this year and beyond. OTT services offer much more flexibility than traditional TV and provide unrivalled access to unlimited content at a lower price point than most traditional pay-TV subscriptions, so I think it’s an sector that will continue to flourish.”
Frank Dunne, Chief Sports Writer, Sport Business
“The caution and confusion which entered the thinking of Chinese investors in 2018 will claim another major victim this year, following the sudden and dramatic collapse last October of the MP & Silva sports marketing agency. This could be a big sponsorship or media-rights deal going south, another agency or a sports streaming service.
The sports broadcasting industry (rights-holders, media, agencies) will finally get serious about making a concerted effort to tackle piracy, which is now an out-of-control bush fire that threatens to burn deeply into margins. They won’t find a technical or legal solution. The emergence of cheaper and more a la carte sports media offerings is a more likely long-term outcome. But even that probably won’t work.“
Chris Synnott, Director of Media Rights, FIA World Rally Championship
“In 2019 it will be vital for international rights holders to create and operate a reliable, dynamic and engaging OTT service – this will become a ‘must have’. In a sport where the action takes place over 3-4 days with an enormous volume of potential content, the WRC Plus OTT service delivers fans a 360 experience for the first time in the history of the sport – live coverage of each day, all day supplemented by a range of ‘add-ons’ such as live maps, tracking and different on board camera angles. It’s a rights holder platform that engages directly and deeply with our passionate fan community worldwide and, at the same time, is complementary to existing broadcast deals.”
Hass Aminian, Founder and CEO, Millennial Events (Singapore)
“Sports events themselves have a role in planning and operating events more efficiently, and with proper management, likely to being financial benefits and more by lowering their environmental footprint. In 2019 these changes will begin to feature in more events as event promoters and organisers look to save costs, and attract a younger audience, more aware of their footprint on the planet.”
David Murray, Co-founder, Fozmuz (formerly head of sports rights, BBC)
"With England hosting (and hopefully winning) the Ashes and the Cricket World Cup, media interest in cricket reaches a post 2005 peak. The timing of 2020 to launch The Hundred and the ECB’s new media deal, including live free to air coverage for the first time since 2005, suddenly looks inspired. The many wrinkles seem like mere detail in what will be the biggest year for cricket in the UK for a generation."
Charlie Heyworth, Gaming and eSports coordinator, Formula E
“With the future of the industry going electric, 2019 will see Formula E seismically shift to become the most relevant motorsport series in the world, in terms of transfer of technology. The championship is developing new audiences and spreading the message of sustainability through fast and competitive wheel-to-wheel street racing. As more governments look to ban the sale of combustion engine cars by 2025 (Norway) and 2030 (France, Ireland, India etc.), the Formula E championship will become increasingly attractive to investment from both manufacturers and host-cities from across the world.”
We hope our readers had a good Christmas and New Year.
For our first blog post of 2019, we wanted to take a quick look back at the highlights of 2018 - a busy and eventful year for the team!
London: we were delighted to welcome Julian Moore as the head of the London sports team. Julian joined Tiran Gunawardena, Laura Canham and Nick Cusack in our London team. Since Julian’s arrival, the team has advised a wide range of new sports clients, including amongst others, Luton Town, an international footballer on an anti-doping charge and the international sports marketing agencies Infront Sports & Media, Sports Revolution and M-League Marketing.
Court of Arbitration for Sport (CAS): 2018 was a particularly busy year for Mark Hovell (CAS arbitrator and Head of Sports at Mills & Reeve) at the CAS, as he was appointed on a record (for him!) 38 cases involving complex international legal disputes in football, anti-doping, athletics, ethics, match-fixing, boxing and even chess. Notably, Mark was on the panel which heard AC Milan’s high profile dispute involving UEFA’s Financial Fair Play rules.
Disputes: 2018 was an exceptionally busy year for us in relation to sports disputes. We acted for numerous domestic and international players, clubs and federations on matters heard at the High Court, The FA, UEFA, FIFA and the CAS. These matters involved a variety of legal issues including breach of contract (including the ongoing commercial court litigation between Rangers FC and its retailer partner Sports Direct), intermediaries’ regulations, betting, match fixing, anti-doping, on- field UEFA disciplinary charges, managers’ disputes (including acting for a former Premier League manager who successfully recovered substantial damages in FA arbitration proceedings against his former club), and commercial sponsorships.
England Golf: we advise England Golf on all legal matters and work very closely with their in-house legal team. Last year, not only did we work on a number of confidential HR matters, but we also produced guidance notes on Equality and GDPR. We also operate a helpline which enables all 1,900 affiliated Golf Clubs to be able to call us for up to an hours’ free legal advice. The Helpline is paid for by England Golf and has provided us with a very wide variety of work.
Women’s sport: we advised England’s netball players on some of their recent negotiations with England Netball. Mark represented the PFA and the Lionesses with the negotiations of the latest Central Contract with The FA, while Tiran assisted various Lionesses players in disputes with their clubs in England, Australia and the United States. Additionally, Carol Couse is a co-founding member of an international non-profit organisation based in Switzerland called Women in Sports Law, which provides opportunities, a platform for knowledge sharing and networking for women with a demonstrated interest in sports law.
Rugby: in Rugby League, we worked with the Super League clubs and the league itself in the process of taking a transfer of the running of the competition from the RFL and, switching Codes, in Rugby Union, we carried out our first assignment for the RPA.
Saudi Arabian sport: we helped advised the Saudi Professional League (SPL) in reviewing and re-drafting its Financial Fair Play regulations. In addition, we will deliver guidance and assistance workshops to SPL clubs in the future. We were also appointed to the Saudi Arabian Football Federation (SAFF) legal panel, to assist all Saudi professional clubs in international sports law matters.
British Cycling: we assisted British Cycling in re-drafting its Disciplinary Rules and Regulations.
Illegal streaming of live sporting events over the internet is not a new problem. But, given the rate of growth in this activity, sports broadcasters are fighting back. The new weapon in their arsenal is the live blocking injunction.
This is a new legal remedy that can be used to protect valuable rights in broadcast sports footage. The most obvious example is the use of the live blocking injunction by the English Premier League to block servers hosting illegal streams of live Premier League matches. Rights to live broadcasting are the subject of periodic auctions, with the amount raised increasing to over £5 billion for the period 2016-2019. The 2019-2022 deal agreed earlier this year saw Amazon enter the UK market alongside Sky and BT.
Those familiar with this field will know that website blocking orders (where internet users are blocked from accessing specified websites) are not new in the UK market. Earlier cases have dealt with blocking orders against peer-to-peer websites hosting pirated films and music, or those making them available in other ways – bit torrent indexing websites for example. Injunctions have also been granted to trade mark owners, blocking sites that deal in counterfeit luxury goods.
Blocking injunctions are not normally granted against the website operators themselves. These operators are often difficult to identify or effectively enforce against. Instead, orders are made against internet service providers, usually the six main UK retail ISPs, requiring them to block or impede access to the offending websites. They are based on EU legislation and have support from European case law.
A new tool - live blocking injunctions
Although blocking injunctions have proved to be a valuable tool against film and music piracy, they have not served live sports broadcasters as well. A developing feature of the illicit streaming market is the use of different websites, with the live stream switching between them as necessary. Further, consumers increasingly have access to set-top boxes, media players and apps on mobile devices enabling them to access the infringing content by connecting directly to infringing servers via the IP address as opposed to requiring access to a specific website. In these circumstances injunctions against particular websites are ineffective. The live blocking injunction offers a way of tackling this problem.
This kind of injunction is different in three fundamental ways. First, the block which the ISP is obliged to implement applies to whole servers and not specified websites. Second, the ISP is only required to block the relevant server for the length of time that the sporting event in question is being broadcast (for example, while a Premier League match is being played). And third, the list of servers to be blocked is reset regularly (in some cases weekly) meaning that those that no longer meet the criteria are removed, and new ones that are taking over the activity are added. If granted, the order works by requiring ISPs to block internet users’ access to servers hosting infringing streams of live sporting events.
The football cases
The UK’s first live blocking injunction was granted in 2017 in a case brought by the Premier League. The action received support from a list of other interested organisations including Scottish, German and Spanish football leagues, the Rugby Football Union, the PGA European Tour and the Professional Darts Corporation. The injunction targeted streaming servers, but only during the times when live Premier League match footage was being broadcast, and on the basis of a re-set list of target servers every week. As the first of its kind in the UK, the duration of the order was short – it covered the two months up to the end of the 2016/17 football season.
This case has since been followed by similar orders in favour of both the Premier League and UEFA. Again, these orders target streaming servers that deliver infringing live streams of match footage to UK consumers. In granting these orders, the court had an opportunity here to review the effectiveness of its earlier order. The conclusion? The injunction was effective, and there was no evidence of overblocking (see below).
The Matchroom Boxing case
The Matchroom Boxing case is the latest example of a live blocking injunction. This case dealt with live-streamed professional boxing matches, notably the widely publicised fight between Anthony Joshua and Alexander Povetkin on 22 September 2018. Sky currently has exclusive UK broadcasting rights, and makes the matches available to viewers on a standard or, for the most sought-after events, a pay-per-view basis.
One of the most striking things about this court ruling is how short it is. In just a couple of pages the court concluded that Matchroom was entitled to an order lasting for two years. Because fixtures are not organised ahead of a whole season as they are in the case of Premier League matches, the order permits boxing matches to be notified to ISPs four weeks in advance. The decision was based on preceding decisions that explain how and why these injunctions are granted. This case, alongside the later Premier League and UEFA decisions, shows how the remedy has developed over recent years, becoming increasingly streamlined and powerful. In particular, the length of time that orders cover has increased rapidly from the first Premier League case in 2017. Orders have gone from lasting for two months, to whole Premier League seasons, to two years in the Matchroom Boxing case (although boxing matches are less frequent than Premier League fixtures).
How does a live blocking injunction work in practice?
A live blocking injunction involves the identification and blocking by ISPs of illegal pirated streams of content, which is achieved throughout various means. Identification methods include the use of databases of well-known pirate websites and apps used for mobile devices and Kodi (and other) set–top boxes, and the manual tracking of streams. Increasingly, new and highly-sophisticated artificial intelligence fingerprinting and watermarking technologies are also being utilised by ISPs (and rights holders) which that can identify logos, text, faces, football kits and other content and certain metadata on a live, automated basis.
The jurisdiction to grant blocking injunctions requires the court to balance the interests of the copyright owner with those of ISPs and internet users. “Overblocking” describes blocking legitimate activity that does not infringe the rights of the person who is entitled to broadcast match footage, and would include orders which go too far in seeking to achieve the specific objective – here preventing illegal live streaming of sports fixtures. The court was shown evidence in the more recent Premier League cases that the methods being used were effective in controlling overblocking. Some overblocking is inevitable, but it is important for applicants to be able to demonstrate to the court how they will keep this to a minimum.
One of the factors identified as reducing the risk of overblocking, particularly in the most recent Premier League cases, was the fact that the list of servers to be blocked was reset periodically (in the later Premier League cases as often as weekly). This meant that servers were not blocked automatically for longer than a week and that some kind of periodic review of blocked servers was necessary.
Cost of software
The ISPs applying the blocking injunctions require increasingly sophisticated software, the cost of which can be high. ISPs do not normally resist the use of blocking injunctions in appropriate cases. However, if a smaller ISP were the subject of an order it might be more difficult for them to afford to implement and administer the orders. An injunction not being unnecessarily complicated or costly for the ISP to implement was a criterion that the court considered in deciding whether to grant the order in the first Premier League case. This decision formed the basis of later orders. It remains to be seen whether satisfying this criterion will prove problematic if an order is sought against a smaller ISP without the financial capability of one of larger ISPs. We are not aware of applicants being ordered to pay either for the blocking measures or the legal proceedings, although that remains a possibility. The Supreme Court has recently required trade mark owners to pay for some elements of the implementation of a blocking order targeting counterfeit goods websites.
The most important question posed by the recent spate of cases in this area is whether there is now a precedent for the grant of live blocking injunctions in similar situations in future. It seems to us that there is. While each of the various orders have differed slightly from previous ones, the common denominators required for a live blocking injunction are emerging.
It is not yet certain whether the scope of live blocking injunctions will continue to increase and whether the issues of overblocking and the costs of software will present issues for claimants in the future.
While some “teething” issues remain, it is likely that the increasingly ubiquitous nature of illegal streaming of sporting events via the internet means live blocking injunctions are set to become more common in future.
Reevaldo has had a storming debut season so far for Kings Cross United (KC United). As a result, he’s making headlines for all the right reasons and, if his good form continues, there is even talk of him possibly making an international debut for Brazil.
On the back of all this new fame, Reevaldo’s agent, Jaco Moreno, has been inundated with calls from brands and marketing agencies looking to buy into brand Reevaldo and for him to endorse their products.
A "Home Grown Player" means a player who, irrespective of nationality or age, has been registered with any club affiliated to The Football Association or the Football Association of Wales for a period, continuous or not, of three entire seasons, or 36 months, before his 21st birthday (or the end of the season during which he turns 21). Importantly, it does not mean that they have to be English. Two examples of foreign Home Grown Players are Chelsea’s Cesc Fabregas who was registered with Arsenal and Manchester United’s Paul Pogba. However, on the whole Home Grown Players tend to be domestic talent given the likelihood of them having trained at a young age with local club or at least in England or Wales.
The FA’s concern with strengthening the national team is of course in direct competition with Premier League clubs’ focus on building the strongest possible squad, regardless of nationality, and a very delicate balance is struck with the current regulatory system.
Up until now, The FA has made efforts to reverse this trend through tightening restrictions on work permits for non-EU footballers. However in light of the UK’s ‘divorce’ from the EU, The FA has opted to leverage its influence over the recruitment of EU players going forward in an effort to push through its restrictions on the recruitment of foreign players generally.
The FA initially attempted to do this by tabling plans to reduce by five, the number of non-Home Grown Players’ in Premier League squads from 17 to 12 after Brexit, whilst allowing concessions on the grant of work permits, or Governing Body Endorsements (“GBE’s”). Therefore, if it had been agreed, over half of every clubs’ 25-man squad must be made up of Home Grown Players. Premier League clubs rejected this proposal on 15 November 2018. However, like the Government’s Brexit negotiations, this is not the end of the matter, particularly as The FA is in a strong bargaining position..
We understand that The FA has since warned clubs that if the proposal is not accepted, all new, non-Home Grown players (including EU players) will have to comply with the strict immigration criteria that is currently applied to non-EU players to obtain a GBE (for details of the GBE process and criteria, please see our Reevaldo article).
As quoted by the BBC in a recent survey it conducted “[i]f the GBE rules for players from the EU were the same as the current ones for non-EU players, 152 players – about 25% of the total would definitely not get GBEs.” Whilst similar to Greg Dykes’ proposal in 2014 (notably to reduce the number of ‘non-Home Grown Players to 13), this attempt was unsuccessful, being blocked by the Premier League clubs. This time, however, as previously mentioned the proposal came with the sweetener that if accepted, all foreign players will be granted GBEs without the application of strict criteria which would otherwise apply.
“The FA has proposed a pragmatic post-Brexit solution to Premier League clubs. The proposal would allow the same current access to European players and reduce governing body endorsement requirements for non-European players to the same levels. “In return for this improved access, The FA would like to ensure that the league collectively does not exceed the current number of around 260 non-homegrown players in the league - this is equivalent to 13 players per club. The FA believes increasing access, but preventing an increase in current numbers of overseas players, would benefit all of English football.”
“There is no evidence that stronger quotas than exist now would have a positive impact on national teams…Brexit should not be used to weaken playing squads in British football, nor to harm clubs’ ability to sign international players.
Our competition is watched in 189 countries, 700,000 visitors to the UK per season attend a match, clubs employ 12,000 full-time staff and Premier League football generates £3.3bn per season in taxes.
We have a positive working relationship with The FA and will continue to have constructive discussions with them, and other stakeholders.”
As it stands there are five teams who have the maximum number of non-Home Grown Players in their squads; Brighton, Huddersfield Town, Manchester City, Tottenham and Watford and a total of 13 squads have more than the potential limit of 12. The teams who would not be affected by any such change include: Bournemouth (with only five non-Home Grown players), Burnley, Cardiff City, Crystal Palace, Everton, Southampton and Wolverhampton Wanderers.
In the long term, any such steps to restrict the influx of foreign talent, albeit indirectly, will make it much harder for clubs to sign foreign players and could force them to look closer to home for the next generation of players. In theory, this should benefit the national team as young English players will be more likely to be given the chance to compete at the highest level as clubs invest in the development of Home Grown Players.
In the coming months there will be ongoing discussions about the future landscape for the recruitment of players and it will be interesting to see the outcome of such negotiations.
WWL described Mark Hovell (the Head of Sports) as “a top lawyer and CAS arbitrator”, and stated that peers “also spoke highly of his work in FA disputes. His broad experience includes restructuring sports clubs and he is regarded as a trusted representative to sporting associations, individuals and clubs.”
WWL described Carol Couse (the Head of Sport (International)) “as a leading name in the field who comes highly recommended for “her extensive experience and pragmatic sports advice”. She has expertise in football in particular and draws on a wealth of in-house and private practice experience.”
WWL described Tiran Gunawardena as “an expert in international sports arbitration” and that he comes “highly recommended as an extremely well-qualified and competent sports lawyer by clients.”
The Legal 500
Mills & Reeve were listed by The Legal 500 as a Tier 1 practice in sport in Manchester, Birmingham, and East Anglia, and in Tier 5 in London.
Mills & Reeve were recognised as “an accomplished sports regulatory practice”, which is also “notably strong in contentious matters relating to employment, contracts and image rights.” The firm was recognised for handling “image rights, tax and private client matters for high-profile sports personalities and teams, particularly in football”, and also for advising on women’s sport and on doping cases in football.
In Manchester, Mark Hovell was described as “outstanding” and “great for international arbitration work and is a vastly experienced lawyer”, while Carol Couse is “experienced in football regulatory and commercial matters” and has “a wide range of clients with a particular focus on Hispanic clients.” Rachael Somerset, who advises sports clients on defamation and reputation matters, was described as “fantastic” and “a pleasure to work with.” The Legal 500 stated that “overall the team is ‘absolutely top-class’.”
In Birmingham, employment law specialist Richard Santy was noted for advising Eniola Aluko “on a racial discrimination claim against former national team manager Mark Sampson and assisted West Bromwich Albion with the departure of its former manager Tony Pulis.” Phil Hutchinson, listed as a ‘next generation lawyer’, was noted for being “experienced in sports litigation, primarily for rugby and football.”
In Cambridge, Ed Hadcock was noted for providing “specialist commercial support for athletes and sports organisations, including advice on image rights and representation.” Greg Gibson (commercial and IP), Chris Belcher (tax) and Richard Plaistowe (IP) were also noted as key sports contacts.
Chambers & Partners
Mills & Reeve were listed by Chambers & Partners as a Band 4 practice in the UK, and described the firm as a:
“[h]ealthy practice with an outstanding offering in football. Frequently represents individual players in contract negotiations, disciplinary hearings and high-profile employment disputes, including discrimination claims. Well known for representing professional footballers on the set-up of image rights agreements, and regularly represents players from overseas playing for English clubs. Noted for the strength of its presence in women's sport.”
Mark Hovell and Carol Couse were recognised as notable practitioners.