Spot the law
20 May 2002
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2 December 2013
As England manager Sven-Goran Eriksson prepares his players for battle at this summer's World Cup in Japan and Korea, the press, the fans - and probably even the judiciary - will be behind the English team. And over the last year, the relationship between the media, the courts and the football industry has had diverse effects on a wide range of players, clubs and supporters.
There is no disputing the fact that the media has a massive role to play in the way professional football operates today, and the relationship has become so intertwined that it is impossible to see football operating without the media's input.
The arrival of British Sky Broadcasting (BSB) and the introduction of the Football Association Premier League in 1992 introduced a new era in which English soccer has been showcased to the max. Multimillion-pound bids have been made for the TV rights to show live matches and highlights, and more often than not, the large sums involved can cause a conflict. In 1999, the Chancery Division resolved an issue as to whether or not BSB and the BBC's broadcasting arrangements were against the public interest under the Restrictive Trade Practices Act 1976. It was held that, despite live games being broadcasted on subscription-based TV (and later on pay-per-view), this was not against the public interest because the public would be at more of a disadvantage if broadcasting restrictions were not in place. Nowadays the Premier League teams benefit from huge financial packages for the broadcasting rights to their matches from BSB and ITV.
But despite the media's purported love affair with the game, the interest from some newspapers includes matters not strictly confined to the field of play - stories that can often lead to litigation.
One player trying to keep a low profile was Blackburn Rovers captain Garry Flitcroft, after the Sunday People threatened to reveal details of his extramarital affairs. In the first half of the action, Flitcroft sought and gained an injunction to prevent the newspaper from publishing his name. Surprisingly, Judge Jack held that the law of confidentiality could apply to sexual relationships regardless of the existence of an express agreement to treat the matters as confidential.
Following appeal, Lord Chief Justice Woolf, Lord Justice Laws and Lord Justice Dyson laid out principles governing interim injunctions in actions for breach of confidence in the context of Articles 8 (the right to respect for private and family life) and 10 (freedom of expression) of the European Convention on Human Rights (ECHR). It was held that, where an individual was a public figure, they were entitled to privacy but should expect that their actions would be scrutinised more closely. To maintain the injunction would have been an unjustified interference with the freedom of the press, and it was set aside. Flitcroft's name was duly published and significant principles were established relating to the privacy of individuals in the public eye.
But the media cannot always rely on the public interest defence. In a recent statement in open court, The Guardian apologised for printing allegations that the Glasgow Celtic boss Martin O'Neill was to become the new manager of Manchester United. Despite the fact that similar stories were reported all over the press, the allegations were untrue and The Guardian agreed to pay damages and costs to O'Neill without proceeding to trial.
The Queen's Bench Division (QBD) also had to intervene after the Sunday Mirror's involvement in the criminal trial involving Leeds United players Lee Bowyer and Jonathan Woodgate's alleged attack on a man in Leeds city centre. The newspaper published an interview with the father of the victim which ultimately led to the collapse of the 2001 trial. Lord Justice Kennedy ordered Mirror Group Newspapers to pay £75,000 for contempt of court, one of the largest fines in newspaper publishing history.
In any event, the trend towards commercial and media deals with football clubs will continue to grow, and the bigger teams will reap massive rewards. Arsenal are in partnership with media giant Granada, and interestingly the 'Gunners' also recently signed a commercial deal with mobile phone company O2. Manchester United's links with O2's rival Vodafone suggest that the sponsors are using the clubs to compete with one another. And the actions of companies such as Nike and Pepsi in exploiting the publicity associated with this summer's World Cup have been condemned by world football's governing body FIFA, which says the companies' alleged "guerrilla" or "ambush" marketing practices threaten the interests of world football and undermine official marketing deals.
Soon fans will be able to see their team's goals on mobile phones and the internet, and even previously low-profile women's football is set to benefit from media interest with sports agents and management companies increasingly becoming involved. A virtually inseparable relationship has been formed.
The old adage that the rich get richer and the poor get poorer could not be closer to the truth in the way that larger and smaller football clubs are affected by the media. While the Premier League teams enjoy high-value agreements with all manner of media organisations, the clubs in the Nationwide League are suffering at the hands of seemingly the most doomed TV deal in the UK's footballing history.
On 27 March, ITV Digital, owned by media giants Carlton and Granada (C&G), was placed under administration, firmly placing the broadcaster's agreement with Nationwide League clubs into jeopardy. Subscriptions to the ITV Digital service were low, and the company suffered debts of approximately £3m each week.
On 25 April, administrator Deloitte & Touche announced that they had failed to sell the service, despite alleged interest from other media companies such as BSB, and that the company would break up and sell its assets. On 26 April, talks between C&G and Deloittes lasted long into the night. C&G withdrew offers of further funding for ITV Digital because they were refused the right to make a counter offer. As shareholders, they insisted on knowing the identity of any possible buyer so they could submit a counter offer while in the know, although Deloittes is believed to have accepted the counter offer condition at an earlier stage, when it was hoped that the business would be saved.
As a result of the ITV Digital disaster, the company could not fulfil its promise of paying £100m a year to the Football League in exchange for exclusive TV rights, meaning that the current outlook is bleak for the clubs relying on the revenue.
The league said it would hold out for full payment of the £178.5m it was owed by ITV Digital, but individual clubs have already felt the harsh effects of the digital breakdown. The Government announced that it would only be able to offer "practical support" to the league, meaning that miracles will need to happen for some clubs to survive.
The most hard-up clubs are now considering applying for administration en masse all on the same day. It is believed that this would give the clubs a legal get-out clause for many player contracts, thus saving wage costs. Of course, this would not be too favourable to hundreds of players who could be released by their clubs with no new teams being able to take them on due to lack of funds.
The rights for televising league games now reverts to the clubs, which are free to find a new buyer for the contract, despite the committee of First Division chairmen which has been formed to try to extradite the promised revenue from C&G. One possible ray of hope for the clubs is the fact that the league is keeping an open mind with regard to its insolvency policy, and may allow clubs to play in the league's next season even if they have gone into administration. Although other global giants such as BSB and Microsoft have shown an interest in buying the company, the clubs are unlikely to get offers anywhere near that originally made, and with nobody being able to take over at the ITV Digital wheel, some of football's minnows could soon be steered into the wilderness.
Ardent football supporters of unsuccessful teams do not really mind the classic joke "Who do you support? Oldham Athletic? Well, somebody has to," because some of them are now looking at the prospect of not having a team to support at all. But the Football Fans Union (FFU) is not giving in to the ITV Digital crisis without a fight. The FFU has launched a campaign to empower all footy followers to put instant pressure on C&G by not watching ITV during advertisement breaks. The FFU believes that by targeting C&G's main income, pressure will be put on it to honour the ITV Digital deal.
And as if the fans haven't got enough to worry about, at one stage earlier this year, albeit briefly, they thought they might not even be able to watch the World Cup on the TV this summer. Again, this was as a result of the collapse of a large media company, this time Germany's Kirch Media, which filed for insolvency in April. Kirch owns the worldwide TV distribution rights, and became engulfed in debts of £3.9bn as a result of failed expansions into the murky world of pay TV and a decline in advertising revenue. Fortunately, the German government came to Kirch's aid and is offering credit guarantees to the clubs most in need of the cash.
How does that affect the World Cup? Fortunately Kirch, which also owns Formula 1 broadcasting rights, has been able to transfer all of its assets and operations for both the 2002 and 2006 World Cups to its Swiss-based subsidiary, meaning that all broadcast operations in Japan and Korea will take place as planned. Meanwhile BSB has been touted as a possible buyer of Kirch Media.
When a Danish TV company sought to broadcast Denmark's World Cup games exclusively, the House of Lords also had its say on the subject. The Independent Television Commission sought interpretation of the Television Without Frontiers Directive, and it was held that Article 3a(3) of the directive prevented the exercise by broadcasters of exclusive rights, which would mean that the public in another member state was deprived of being able to watch the designated event.
Although that judgment did not have a direct effect on the game's supporters, the decision of Lord Woolf and Judge Harrison on 12 April 2002 did: because of the time difference between the UK and the Far East, the kick-off times for the matches in the World Cup this summer vary from 6.30am until noon. Pub landlords are eager to cash in on the event by opening their establishments early, and following a magistrates decision to deny a Bristol landlord a licensing order for four morning matches, it was held on appeal that the magistrates were not bound by previous High Court decisions and alcohol could be sold at the pub during the World Cup as it was regarded as a special occasion.
And as a result of the early kick-off times, some interesting employment issues have arisen. Employers are facing the possibility of mass absenteeism, with people taking holidays or claiming sickness to watch the games. A proactive approach for employers to allow a TV to be brought into the workplace has been widely suggested.
For some supporters, watching the matches on TV is not enough, and for two persistent fans who were subjected to international banning orders under the Football Spectators Act 1989, the Court of Appeal had to decide on whether or not the orders contravened the European freedom of movement laws or articles 6 (right to a fair trail) and 8 of the ECHR. It was held that the banning orders did not contravene the European laws and that they were imposed because there were strong grounds for concluding that the individuals could take part in football hooliganism. However, leave to appeal to the House of Lords was granted in one of the related actions.
Away from the bright lights of the media world, a wide range of football-related issues have been dealt with by the courts within the last year, including Manchester United's match programmes, Arsenal's souvenirs and Sunderland's errant Uruguayan striker. One interesting case is related to the injunction sought by Crystal Palace to prevent its manager Steve Bruce from joining Division One rivals Birmingham City. Bruce alleged that Crystal Palace had repudiated his contract, although it was held that normal principles applied and the injunction was granted, with Bruce obliged to take a "short garden leave".
Faced with the prospect of encouraging more supporters to the stadiums and the increased safety responsibilities, the larger teams are constantly seeking to develop their homes. Fulham FC, under the leadership of Mohamed Al Fayed, is no exception. The QBD Administrative Court recently ruled that Fulham's ground development proposals did not have to be subject to a public inquiry, as Articles 6 and 8 of the ECHR did not apply. However, leave to appeal was granted on 25 April 2002, meaning that Fulham's proposals will be held back for a year.
Football has also played its own part in the UK's snowballing compensation culture, with an increased intention for players to claim damages against their fellow professionals when they have been injured during a game. But one of the most unusual personal injury settlements to be reported last year was that of Stockport County goalkeeper Andy Dibble, who came into contact with hydrated lime during a Welsh league match in 1998. Dibble sustained severe burns to his chest after touching the chemical, the use of which had already been phased out. The player claimed that his chances of becoming a soccer league professional in the US had been diminished, and he received £22,500 for his injuries.
And looking to the future, the Inland Revenue could kick off an action against David Beckham once his current wage negotiations have concluded. Beckham has allegedly been trying to establish a separate 'image rights' contract which would run in conjunction with the salary Manchester United pay him for playing. If Beckham succeeds, other players would probably follow suit and the Inland Revenue is likely to be concerned that some of Beckham's salary would be treated as image payments to a separate company, and therefore different to his playing wages for tax and National Insurance purposes.
With a high percentage of professional clubs set to face up to stark financial realities, and huge media coverage of the off-field actions of famous footballers, the volume of legal intervention is only likely to increase. It is also clear that human rights law unsurprisingly influences the outcome of many football-related disputes. But issues across the legal spectrum will need judgement, and vital interception from the courts will be required on the way football operates in the future.
Michael Leyland is assistant editor at Lawtel
A v B & Anor sub nom Garry Flitcroft v Mirror Group Newspapers Ltd (2002), LTL 11/3/2002: Richard Spearman QC of 4-5 Gray's Inn Square for B & anor. Alastair Wilson QC and Jeremy Reed of 19 Old Buildings and Stephen Bate of 5 Raymond Buildings for A.
|The fan-related cases|
Gough v Avon & Somerset Police Licensing Bureau (2002), LTL 12/4/2002: Mr J Saunders QC instructed by Osborne Clarke for G.
|The courts-related cases|
R v Secretary of State for the Environment, Transport & The Regions, ex parte Fulham Stadium Ltd & ors (2002), LTL 18/1/2002: Robert McCracken and Gregory Jones of 2 Harcourt Buildings instructed by Richard Buxton for the claimant. Nathalie Lieven of 4 Breams Buildings instructed by the Treasury Solicitor for the defendant. Tim Straker QC and Andrew Tabachnik of 4-5 Gray's Inn Square instructed by Linklaters for the first interested party. Keith Lindblom QC and Craig Howell Williams of 2 Harcourt Buildings and Russell Harris of Eldon Chambers instructed by and for Hammersmith & Fulham Councils.