Gambling on Top Flight Footballers: ASA Ruling

Sad football fans

The Advertising Standards Authority (“ASA”) has issued its first ruling under the new rules that prohibit gambling ads with “strong appeal” to under-18s, providing a useful example as to how the new rules will be applied.

Updated Gambling Ad Rules

As covered in more detail in a previous article for this blog, on 1 October 2022 new rules in the UK advertising codes came into effect that restrict the content of gambling ads. The rules of both the UK Code of Non-Broadcast Advertising and Direct & Promotional Marketing (“CAP Code”) and the UK Code of Broadcast Advertising (“BCAP Code”) were updated to prohibit all gambling ads that are “likely to be of strong appeal to children or young persons, especially by reflecting or being associated with youth culture”.

More specifically, the advertising codes state that gambling ads must not include “a person or character” who has strong appeal to under-18s. Similarly, ads for gambling products associated with “activities” that are of strong appeal to under-18s should be avoided, unless appropriate steps are taken to limit their appeal.

These new rules were accompanied by substantial guidance on their implementation (“ASA Guidance”), which provided examples of these types of persons, characters and activities. Amongst other sectors, there was a particular focus on sports, especially football.

Examples of “high risk” persons to feature in gambling ads include UK footballers and managers who represent top clubs, national teams or compete in high-profile competitions. Non-UK “star” footballers at top European clubs and other prominent athletes from sports such as cricket, tennis and rugby with significant national profiles would also fall within this category. Activities that would have “inherent strong appeal” to under-18s include betting ads on football, eSports popular with minors, and prominent events in other sports.

Importantly, the ASA Guidance sets out some key exemptions from the “strong appeal” rules. A notable exemption is that the rules do not apply in media where, for all intents and purposes, under-18s can be entirely excluded from the ad’s audience. In order to benefit from this exemption, the marketer must be able to robustly verify that the potential recipients of the ad are over 18 years old.

The Advert

Ladbrokes ran a promoted tweet which contained a video with images of Premier League footballers Philippe Coutinho, Jesse Lingard and Kalidou Koulibaly, set against a background of question marks. The tweet featured the main heading “Can these big summer signings make the question marks over their performances go away?” together with the “Ladbrokes” brand in the image box.

Ladbrokes’ Argument

Ladbrokes argued that the ad complied with the CAP Code and the ASA Guidance. It contended that the tweet was just a brand engagement piece, which did not include any call to action, promotional offers or links back to the Ladbrokes site. Whilst Ladbrokes accepted that football and top-flight footballers carried a high risk of strongly appealing to under-18s, it claimed that it had successfully eliminated this demographic from the ad’s audience through:

  • Age-gating: Ladbrokes’ twitter feed could only be accessed by users that Twitter had accepted as being over 18 years old; and
  • Ad-targeting: as the ad featured in a promoted tweet, it could be targeted at specific audiences on Twitter, which Ladbrokes had implemented so that the ad would only reach users over 25 years old.

As a result of these restrictions, Ladbrokes said that they were able to provide evidence that, from a total of 50,666 impressions for the tweet, none were under 20 years old.

ASA’s Ruling

In relation to the ad’s content, the ASA reiterated the updated CAP Code rules and ASA Guidance: as the three footballers that featured in the ad were all current Premier League footballers who had played international football, they were likely to be of strong appeal to under-18s.

Regarding the ad targeting, despite the evidence provided by Ladbrokes, the ASA was not satisfied that the medium in which the ad appeared had entirely excluded under-18’s from its audience. Twitter relies on users self-verifying their age upon creating an account, which the ASA does not consider to be a sufficiently robust method of age-verification. Further, Twitter’s ad-targeting tools rely on behavioural attributes (e.g. interests and accounts followed) to support its age inferences. Again, the ASA does not consider this data to be sufficiently accurate.

As a result, the ASA did not consider that Ladbrokes had effectively excluded all under-18s from the ad’s audience to the level of accuracy required by the rules. Therefore, the ASA held that the ad breached rules 16.1, 16.3 and 16.3.12 of the CAP Code and must not re-appear in its current form.

Key Takeaways

  1. Stick to the ASA Guidance: the ruling indicates that the ASA will closely follow its guidance in applying the new rules. There was little analysis as to whether each individual footballer would strongly appeal to under-18s, aside from the fact that they were current Premier League players who had played international football and were therefore “high risk”. The default position appears to be that high risk persons will have strong appeal to under-18s.
  2. Take caution when featuring footballers: the ASA highlighted that football can strongly appeal to under-18s as a significant proportion of that demographic regularly play the sport and it has a huge media profile, which includes popular, dedicated media for under-18s. As a result, gambling ads that feature footballers are at particular risk of being caught by the new rules. The ASA standard is now effectively a ‘strict liability’ offence. Even when there was no evidence that a child had viewed Ladbrokes’ ad, the regulator still held there to have been a breach of the rules.
  3. Ensure age-verifications are robust: social media that rely on users self-verifying their age or behavioural data to exclude minors from the ad’s audience will not be sufficiently accurate for the ASA. If a marketer is relying on ad-targeting to exempt the ad from the new rules, the age-verification of the audience must be validated by additional means, such as payment data or credit checking.

Squire Patton Boggs are experts in this topic, please contact Carlton DanielMike LlewellynAilin O’Flaherty or Jack Wood for advice.

Improving Diversity, Equity & Inclusion In Sport – Lessons From Australia & UAE

This article was written for and first published by LawInSport. The original version is available to view here

During Australia’s 2022 National Rugby League season, seven players from the Manly Sea Eagles, a team in the National Rugby League competition, refused to play in a jersey that featured rainbow trim. The design, called the “Everyone in League” kit, was intended to be worn by the team as a one-off to celebrate inclusivity, but it became known as a “pride jersey”, supporting the LGBTIQ+ community, due to the use of the rainbow palette. The seven players cited religious and cultural objections to wearing the jersey and, because the rules of the National Rugby League require all players in a team to wear a “distinctive” (seemingly interpreted as “identical”) jersey1, opted not to play the match in which the jersey was worn.

The story made international headlines2 and was widely talked about across Australia. Instead of uniting the rugby league community to promote inclusivity, the issue divided the Manly Sea Eagles team, rugby league fans and the general population. While some argued that a sporting club has no right to force a particular ideology on its players, others argued that wearing the jersey was just part of their “job”.

The “pride jersey” controversy highlights an important message for all organisations that want to foster diversity, equity and inclusion (DEI) – even initiatives implemented with the best of intentions can have unintended consequences. With that in mind, and taking inspiration from other events in the world of sport, this article examines some interesting examples from Australia and the UAE, before suggesting some “rules of play” for organisations to follow to lessen the risk of inadvertent outcomes.

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How Schools and Private Entities Have Engaged in NIL Activity

Now that a regulatory framework is in place, either by way of the NCAA’s interim policy or through the various state laws discussed in the second iteration of this blog series, academic institutions and private entities, such as alumni and companies, have quickly engaged in the NIL space. This final post of our three-part blog series explores some of the ways these entities and individuals have interacted with NIL in the world of college athletics.

How Schools and Their Athletes Are Entering the Mix

Recognizing that NIL deals are now a significant factor in recruitment and that NIL is here to stay, schools are getting involved in the process. This is primarily accomplished in two ways: through school-specific NIL policies, and NIL departments aimed at facilitating and educating players.

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How US Federal and State Legislatures Have Addressed NIL

As discussed in part one of this blog series, the landmark decision by the United States Supreme Court in the Alston case effectively paved the way for collegiate athletes to profit from their own name, image, and likeness (“NIL”). While many states quickly enacted legislation addressing NIL, it remains to be seen whether and how NIL will be legislated at the federal level.

State Law Addressing NIL

As of July 8, 2022, 29 states have passed legislation regulating or otherwise addressing how student-athletes can profit from their name, image, and likeness. Of those, 24 such laws are currently in effect[1]. Those that are not yet in place are slated to take effect by July 2023 at the latest[2]. An additional 10 states have proposed legislation currently pending in various stages of the legislative process[3].

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Name, Image, and Likeness in US College Athletics: One Year Later

In the United States, college athletics are as popular as professional sports, generating revenues of over $1 billion for the 2021 fiscal year. Despite this popularity, college athletes have long been classified by the National Collegiate Athletic Association (“NCAA”) as having amateur status.

The NCAA—which promulgates the rules and regulations pertaining to student-athletes’ participation and eligibility in college sports—defines an amateur as “someone who does not have a written or verbal agreement with an agent, has not profited above his/her actual and necessary expenses or gained a competitive advantage in his/her sport.”   

Throughout the history of the NCAA, student-athletes were prohibited from making money from their name, image, or likeness—a concept commonly referred to as “NIL”. They could not be paid for signing autographs or entering into sponsorship deals, nor could they profit from the sales of jerseys bearing their name. Put differently, many of the ways in which professional athletes make their money were strictly off-limits to college players. But on July 1, 2021, the world of college sports transitioned into a new era, as the NCAA lifted the ban on player compensation and instituted an Interim NIL Policy.

This is the first of a three-part blog series that examines how, one year later, the various entities that operate within the world of college athletics, such as the players, businesses, and the academic institutions themselves, have adapted to the new reality and the dawn of NIL.

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Changes to the “crown jewel” sports events amid UK broadcasting review: An updated analysis of the UK’s Listed Events Regime

Following on from the growing popularity and success of the Women’s Super League and the great form of the England’s Women’s Team, there is a real sense of anticipation and excitement ahead of the UEFA Women’s European Championship finals, to be kicked off this Wednesday by England’s Lionesses versus Austria.

In late April, the UK Government announced that the FIFA Women’s World Cup and the UEFA Women’s European Championships are to be protected by the UK listed events regime as “crown jewel” events – attracting the same status in the UK’s listed events regime as the men’s FIFA World Cup and UEFA European Championships.

These “crown jewel” events are viewed as being events of national importance and, in order to promote as wide an audience as possible, access to such events on free-to-air (FTA) TV channels or services has been protected by the UK’s listed events regime. 

In light of these changes and also the broadcasting white paper recently published by the UK Government into the review of public service broadcasting more generally, this article considers the background, recent changes and potential further developments to the UK’s listed events regime.

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Crackdown on Gambling Ads Featuring Sports Stars: New Advertising Rules

Casino

As reported in our previous article published in 2019, the Committees of Advertising Practice (CAP) have been focussing for some time on protecting children and young persons through their regulation of gambling advertising.

Under the current rules, gambling ads are prohibited only if they appeal ‘particularly’ to under-18s, which CAP considers means if an ad is likely to appeal more to under-18s than to adults.

In April, CAP announced a tightening of these rules, which will come into effect on 1 October 2022. We discuss these amended rules below.

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‘Is Football the Same Without Fans?’: Valuable lessons when negotiating broadcasting agreements

Last month, it was reported that the value of the overseas broadcasting deals entered into by the English Premier League (‘EPL‘) nudged past the £5 billion threshold for the 2022-25 rights cycle, whilst also surpassing the value of domestic deals for the same cycle for the first time.

Given these substantial investments, it is no doubt worth considering what protections and assurances broadcasters can expect under the terms of their media rights agreements, and, on the other hand, what degree of flexibility rights holders can seek in the delivery of the relevant rights.  This is particularly the case in light of the disruptions to the organising and staging of sporting events across the world over the course of the last few years.  It is almost two years to the day that the 2019-20 EPL season was interrupted, before resuming in June 2020, albeit with empty stadiums and on a rescheduled basis.

It was against this backdrop of ‘football behind closed doors’ and the further changes to the schedule that the High Court recently considered, amongst other things, the level of flexibility afforded to rights holders in meeting their delivery obligations under broadcasting agreements and how this could turn on the particular terms agreed.

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Disqualified For Technical Breach Despite No Advantage: The Cautionary Tale Of A Rally Driver

This article was written for and first published by LawInSport.

While nearly all of the column inches relating to recent FIA stewarding decisions have (unsurprisingly) focused on the fall out of the ‘Hamilton v Verstappen’ F1 2021 season finale, an interesting recent decision1 in the FIA World Rally Championship (WRC3)2 underlines just how impactful decisions in the fast-paced world of motorsports can be.

In November 2021, the International Court of Appeal (ICA) of the Federation Internationale de L’Automobile (FIA) handed down its judgment in the appeal brought by Mr Yohan Rossel (Driver) against the decision of the Stewards of the EKO Acropolis Rally (Greek Rally)3. The Driver had been disqualified by the Stewards from the rally as the front subframe of his car during the rally weighed more than the authorized maximum weight. The ICA rejected the Driver’s appeal in favour of the decision of the Stewards.

This is an interesting decision as it highlights that performance advantage is not a necessity to be sanctioned if found in breach of the applicable regulations. It also showcases the limited scope that exceptional circumstances in relation to technical irregularities can be admitted in.

This article examines the factual background of the case in point, as well as the various key takeaways that drivers and teams would do well to heed going forwards.

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Real Estate Law May Soon Play A Role In The Metaverse

This article originally appeared in Law360 on February 15, 2022. Authored by Alexis Montano, Real Estate Associate, Phoenix, AZ.

The metaverse is a mix of augmented virtual reality that operates with the help of blockchain functions such as nonfungible tokens, or NFTs, and cryptocurrencies.

Think of the metaverse as a universe with several platforms making up the actual virtual planets. These platforms include Decentraland, Sandbox and Mirandus, among others.[1] Current technology aims to develop these digital spaces into reflections of the real world, blurring the lines between physical and virtual reality.

The two biggest platforms, Decentraland and Sandbox, have been headlining recent news for their larger-than-life real estate transactions. Between Nov. 22 and 28, $106 million worth of virtual real estate was purchased from just four of the metaverse platforms, with Sandbox raking in $86.56 million of this total.

Although we broadly categorize these transactions as real estate, the assets being traded are NFTs. NFTs are one-of-a-kind digital assets that are indivisible and not interchangeable.[2] This correlates to owning a piece of real property where no two are the same.

Additionally, NFTs are managed by digital ledgers called blockchains much like ownership of real estate is documented in county public records. While deeds contain the legal description of the property you own, NFTs contain metadata that describe the asset they represent.
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