How the Advertising Standards Authority restricts the use of U-25 sports stars in gambling adverts

This article examines how the use of young people in gambling advertising is regulated within the UK to try and prevent it from appealing to children. The issue is especially prevalent within the sports industry where gambling is popular and star athletes are often young.

The article will be of particular interest to executives and lawyers working for or advising bookmakers operating within the sports industry.

The issue: the case of Jordan Spieth

Jordan Spieth is 22, the world's current number one golfer and the reigning Masters and US Open champion. He's young, he's marketable and he's a problem for British bookmakers. Why? – because his age – part of what makes his achievements so remarkable - means that they can't use his image in social media, without risking action from the Advertising Standards Authority (ASA).

The ASA has recently issued a series of rulings against bookmakers' use of images of sports personalities, aged under 25, in their advertising (see below). Most involved tweets about Spieth during the US Open or immediately following his triumph at Chambers Bay.

Unlike the majority of ASA complaints, which originate from consumers, these were triggered by the regulator itself – it was watching and waiting and no doubt saw the occasion as an opportunity to remind UK gambling operators of their responsibilities under the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code).¹

Bookmakers should sit up and take note – they are likely to remain under the regulatory spotlight, at least while youngsters like Spieth are winning. The rules may be a blunt instrument but they are designed to prevent gambling advertising from appealing to children. Given the extreme sensitivity of that issue, and the periodic calls in the media for greater regulation, it would be wise to keep the regulators on-side, taking care to follow the rules and fall within the available exception.

In examining the issue of using under age sports stars in advertising, we will look at the underlying CAP Code rules and why UK bookmakers, at least, might be cheering on Rory Mcllroy (age 26) in 2016.

Background: the extension of the ASA's remit and the knock-on impact for betting websites

Prior to a 2013 consultation, the CAP Code completely prohibited marketing communications for gambling from featuring people under, or who seemed to be under, the age of 25, in a 'significant role' (see Rule 16.3.14)².

This became a particular issue for the betting industry when the scope of the CAP Code was extended, in 2011, to cover marketing communications on companies' own websites. As a result, images of sportsmen and women under the age of 25, used to illustrate betting selections on sports betting websites became subject to the relevant CAP Code Rule.

In 2012, Paddy Power Plc and News International Ltd sought to argue that Luis Suarez (then aged 24) was not playing a significant role in a press ad, where he was the subject of a bet.³

The advert at issue featured Luiz Suarez wearing a football shirt, and stated:

"MONEY-BACK IF SUAREZ SCORES. LIVERPOOL V MAN UTD. IF SUAREZ SCORES WE'LL REFUND LOSING BETS".⁴

Paddy Power and News International maintained that the advert would not have particular appeal to young or vulnerable people, or encourage young people to gamble. They sought to draw a distinction between featuring someone under the age of 25, who was a sports person and the subject of the bet, and featuring a person under 25 promoting the act of gambling or betting. The ASA rejected those arguments, finding that Suarez was the principal focus of the ad and therefore was likely to be seen by consumers to be playing a 'significant role'. The advert therefore breached the CAP Code.

The remit extension, coupled with the ASA's approach to the existing CAP Code rules, left betting websites effectively unable to illustrate a bet about, say, Lionel Messi (age 24 at the time of the Paddy Power adjudication), with an image of Lionel Messi.

This was deemed to be both overly restrictive and unfair, especially given that bricks and mortar betting shops could use images of sports personalities under the age of 25 in similar circumstances, as the CAP Code does not cover point-of-sale (except in the case of sales promotions).⁵

The Remote Gambling Association⁶ (RGA) and others argued strongly that the use of sporting celebrities, to illustrate bets about them on gambling websites, presented little risk of harm to young people. They also pointed to the stringent age verification processes, which gambling operators are required to implement on their websites as a consequence of their licence conditions. The RGA concluded that it was disproportionate to require the removal of images of sports people aged (or who appeared to be aged) under 25 from betting websites.

Having heard the arguments, the Committee of Advertising Practice (CAP)⁷ decided to proceed with a narrow exception to rule 16.3.14.

The exception to CAP Code Rule 16.3.14

The CAP Code includes some very broad restrictions on gambling advertising, governing both content (which would include copy, images/visuals and also the overall impression conveyed) and scheduling.

The rules state, among other things, that marketing communications for gambling products must "be socially responsible, with particular regard to the need to protect children, young persons and other vulnerable persons from being harmed or exploited"⁸ and that they must not:

• portray, condone or encourage gambling behaviour that is socially irresponsible;⁹
• exploit the susceptibilities, aspirations, credulity, inexperience or lack of knowledge of children, young persons or other vulnerable persons;¹⁰
• be likely to be of particular appeal to children or young persons, especially by reflecting or being associated with youth culture;¹¹
• include a child or a young person. No-one who is, or seems to be, under 25 years old may be featured gambling or playing a significant role. No-one may behave in an adolescent, juvenile or loutish way. ¹²

However, as from September 2013, the rules were changed to allow those 'who are, or seem to be under 25 years old (18-24 years old)' and who are the subject of a bet, to be featured 'playing a significant role in marketing communications that appear in a place where a bet can be placed directly through a 'transactional facility', for instance, a gambling operator’s own website'.¹³

The image or other depiction used must show them in the context of the bet and not in a gambling context¹⁴ (ie it would be permissible to include an image of Jordan Spieth, on a golf course, as the subject of a bet, but it would not be permissible to show him placing a bet at the counter).