The LeBron Effect, Grand Slams and Record Sales: Matching Rights in Football Kit Sponsorship Deals

On 25 October 2019 Mr Justice Teare handed down his judgment in the kit sponsorship dispute between New Balance Athletics (“NB”) v Liverpool Football Club (“LFC”). The dispute concerned whether NB had validly exercised its matching right set out in the contract between the parties entered into on 3 June 2011 (the “NB Agreement”) in the context of a competing offer from Nike (the “Nike Offer”).

The Nike Offer contained, inter alia, commitments in respect of distribution (the “Distribution Obligation”) and marketing (the “Marketing Obligation”). The key issues for the Judge to consider were: (i) was the matched distribution obligation in NB’s revised offer made in good faith; (ii) what was the Marketing Obligation in the Nike Offer and was it measurable and matchable; and (iii) whether the Distribution Obligation and Marketing Obligation in the Nike Offer were matched by NB.

Although a substantial portion of the judgment considered whether NB had complied with an implied duty to act in good faith in making its offer, the case turned on the Judge’s finding that the offer from NB was less favourable than the Nike offer because of the failure to name global stars “of the calibre of LeBron James, Serena Williams, Drake etc.” This decision is interesting, since the Judge accepted that the term in question did not commit Nike to using those specific celebrities. Rather, the Judge found that since the influence of those individuals could be measured, the clause contained a specific commitment which was not matched by NB. LFC was therefore free to enter into a new agreement with Nike.

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What’s in a name? Liverpool FC withdraw applications for “Liverpool” trade marks

Liverpool Football Club (“LFC“) have been unsuccessful in their attempts to register two trade marks for the word LIVERPOOL. LFC withdrew both applications after the UK Intellectual Property Office (“IPO”) refused the registration. While the IPO’s decision has not been published, it would seem that the IPO rejected LFC’s applications on the basis that such marks would consist exclusively of indicia of geographical origin. Continue Reading

RugbyX: Rugby’s answer to Twenty20?

When the Twenty20 (“T20”) concept was first proposed by cricket executives in 2002, as a means to freshen up the traditional game and boost viewing figures, it was met with a mixed response. However, almost 20 years on, T20 has revolutionised the game, dramatically boosting exposure to the game, both domestically and overseas.

By way of example, over a dozen domestic T20 competitions are contested globally, including in traditionally weaker cricket-playing nations such as Canada and Hong Kong. At the other end of the scale, the most popular T20 competition in 2019 – the Indian Premier League – attracted 462 million viewers in India alone. Continue Reading

Whose data is it anyway? Part 2 – does anyone actually own football data?

In part 1 of ‘whose data is it anyway’, we considered the position of Football DataCo and Betgenius, with particular reference to the experience of a Hull City fan who was questioned in relation to “unauthorised data gathering” during a match against Reading. In this, the final part of our two-part series, Sport Shorts considers whether anyone actually owns the data gathered at football matches and if Football DataCo is entitled to prevent people from collecting such data. Continue Reading

Whose data is it anyway? Part 1 – Hull City fan caught up in the tangled-web of football data

In the first of a two-part series, Sports Shorts looks at the ownership of data collected at football matches. With the new football season still in its infancy, fans of many clubs remain full of the optimism that comes with the sensation that anything is possible in the months to come. When Daniel Mawer arrived at the KCOM stadium to watch his team Hull City face Reading in their first home game of the season, he was likely full of that same positivity; he could not have predicted that he would be threatened with ejection from the ground simply for texting his friends and relatives updates from the game. Mr Mawer posted an account of his experience in a Twitter thread, which caught the attention of Match of the Day presenter Gary Lineker, amongst other high-profile figures. So why was Mr Mawer texting during the game a problem? Continue Reading

Football, gambling and advertising: The opposite of a young man’s game

Gambling and football – two words that go hand-in-hand for a lot of football fans. For many punters, having a flutter on a match-day is an essential part of their footballing experience. Betting companies looking to attract customers spend significant sums on advertising, but it can be difficult to get things right, especially when it comes to complying with the regulations applicable to gambling advertisements. The Advertising Standards Authority (“ASA”) recently found that BetIndex Ltd (“BetIndex”) breached the non-statutory rules that govern gambling ads. Continue Reading

Unearthing the Pitch-side Mole: How to Protect Confidential Information in Sport

The importance of keeping certain information confidential in sport should not be underestimated. Knowledge of even the smallest piece of information relating to an opposing club or rival’s team selection, tactics, recruitment targets or commercial arrangements can give the club in receipt of such information a significant advantage both on and off the pitch. Continue Reading

Discrimination in football: Will rule changes help to kick it out?

A report from Kick It Out, the anti-discrimination charity, found that reports of racism in English football rose by 43% last season, from 192 instances to 274. Meanwhile, reports of faith-based discrimination rose by 75% from 36 instances to 63. It is the seventh consecutive year that reported incidents of discrimination in football have increased.

This begs the question, what are the footballing authorities, clubs, players and fans doing to combat discrimination in football? Continue Reading

From A Missed Call On The Field To A Deposition On The Record

Few things are more ubiquitous in sports than informing an official—sometimes politely but, more often than not, rather impolitely—that they made an incorrect call.  Officials no doubt anticipate this hostility and tune it out while on the field.  What they likely do not anticipate, however, is being haled into a deposition months after the game ended to be questioned under oath about a call made on the field.  Yet this is the exact situation currently facing several officials of the American National Football League (NFL).

On January 20, 2019, the New Orleans Saints hosted the Los Angeles Rams in the NFC Championship Game.  At stake, a trip to the Super Bowl, one of the most-watched sporting events in the world, to face the New England Patriots.  With just under two minutes remaining in the game, and with the teams tied at 20 points apiece, the quarterback for the Saints threw a perfect spiral to an open receiver practically waltzing into the end zone.  This game-winning touchdown pass was forcefully interrupted by a Rams defensive player who, having sprinted from mid-field and lowered his shoulder, leveled the Saints receiver before the ball was even remotely close to the receiver’s outstretched hands.

This was a textbook example of “pass interference” in the NFL—a foul that occurs when “a player more than one yard beyond the line of scrimmage significantly hinders an eligible player’s opportunity to catch the ball.”[1]  But the official, standing a mere ten feet from the play, did not call a penalty for pass interference.  The home crowd roared in anger; had the call been made, the Saints would have likely scored a touchdown on the play, or at the very least been well situated to do so.  Instead, the Saints settled for a field goal.  The Rams then took possession, quickly marched down the field, and kicked a field goal to tie the game.  The Rams went on to win the game in overtime.

Saints fans were furious.  In the wake of the loss, a few of the more opportunistic fans filed several lawsuits based on the no-call, including a class action against the NFL, its commissioner Roger Goodell, and the officials themselves.  Three such lawsuits ended up in federal court—one was originally filed there, and the NFL successfully removed two others from state court.  Each federal case was quickly dismissed by the courts.

A fourth lawsuit, however, is still pending in the Orleans Parish Civil District Court in Louisiana.  This lawsuit, filed by four Saints fans, alleges fraud by NFL officials and personnel.  Notably, the lawsuit seeks $75,000 in damages, keeping it below the threshold necessary to remove to federal court.  In other words, this lawsuit is parked firmly in state court, where judges are elected rather than appointed, and which has already inured to the plaintiffs’ benefit.  Despite efforts from NFL’s legal counsel, a Louisiana 4th Circuit Court of Appeals panel upheld the trial court’s decision to allow the lawsuit to proceed.

While the NFL can appeal to the Louisiana Supreme Court, the decision was nonetheless a win for the plaintiffs, who just last week were permitted to conduct discovery in the case.  Wasting no time, the plaintiffs have served the NFL with requests for documents and information.  In addition, the trial court has permitted the plaintiffs to depose Mr. Goodell and three of the officials from the NFC Championship game, with depositions tentatively scheduled to begin in September.  At the heart of these depositions will be the decision not to call pass interference, and whether those officials were disciplined for missing the call.

While the plaintiffs’ likelihood of success on the merits remains to be seen, their efforts to date are nonetheless impactful.  Assuming the NFL does not mount a successful appeal, the precedent has been set where NFL personnel, including officials, can be forced to give sworn testimony regarding decisions made on the field.


[1] Official Playing Rules of the National Football League, Rule 8, Section 5, Article 1.