Sport and commercial law – the year in review 2018/19

Brooks Koepka, Rita Ora, Victor Ubogu, Billy McFarland, Andrea Coscelli. A formidable line up for Dancing on Ice 2019 perhaps (ITV – take note), but these are unlikely to be the names that immediately spring to mind while reflecting on developments in the commercial side of sports law in the last year. Indeed, for many, some of those names may ring hollow. A World No.1 golfer and global singer and actress stand out; for those of a certain vintage, fond memories of a dynamic prop forward (and the much missed Shoeless Joe’s) will be recalled; Netflix subscribers will have little difficulty in connecting the next name in the list with the infamous Fyre Festival; and, for close observers of the Competition and Markets Authority (CMA), spotting the Chief Executive of the CMA will be straightforward (if you were breaking into verse with “Time to Say Goodbye” at the sight of the last name, you could be forgiven).

With these names now hopefully placed, what is their connection to the topic in hand? The connecting strand is that all have featured in 2018 (or early 2019) in legal or regulatory issues concerning the consumers of sports and entertainment content. If one was to run a straw poll of lawyers advising on the commercial aspects of sport as to the primary considerations in terms of hard law or regulations, one might hazard a guess that sports specific regulations, competition law, other EU legislation such as the laws on free movement, and GDPR would feature highest. However, the last year has seen a salient reminder that at the heart of every successful sports property are the fans and, accordingly, an increasingly regulated consumer environment should be front and centre in the mind of those involved in the promotion and staging of sports events.

This review can naturally only cover a selection of the stories that caught the author’s eye over the last 12 months, but it should invite further consideration of the consumer law regime. In particular, readers are encouraged to consider the Consumer Rights Act 2015 which consolidates the UK legislation in this area, alongside unfair trading and misleading marketing regulations.1 We will focus here on:

• Influencer marketing: through the CMA’s recent guidance relating to Rita Ora and other celebrities; and through consideration of the Fyre Festival;

• Liability to spectators at events: in the context of the injury caused to a spectator at the Ryder Cup by Brooks Koepka’s errant drive;

• Ticketing and hospitality: the application of the Consumer Rights Act 2015 and recent approaches taken by rights holders (including against Victor Ubogu’s hospitality agency); and

• New regulation of payment transaction fees.