In December 2020, we reported on the wide-ranging dispute between Football Dataco (FDC) / Genius and Sportradar relating to rights in sports data, focusing on an interim decision of the Competition Appeal Tribunal (CAT). Sportradar and Genius are competitors in the supply of sports data and sports betting services to bookmakers, including live data about football matches. The English Premier League, English Football League and Scottish Professional Football League (the Leagues) have all granted FDC the right to attend their matches and appoint or sub-license a third party to collect, collate and distribute the data from those matches. Since May 2019, those exclusive rights have been granted to Genius for a five year term. Sportradar was unsuccessful in its bid for the rights.
The Leagues require their clubs to implement Ground Regulations displayed at their stadia setting out the terms of entry, including restrictions on recording or transmitting of live data without a licence. The Leagues also encourage their clubs to impose ticketing conditions that specify that ticketholders are prohibited from collecting or disseminating any live data unless for personal use.
Sportradar's competition claim in the CAT argues that the exclusive agreement between FDC and Genius is unlawful and void as it infringes competition laws, and also that FDC has abused its dominant position. At the CAT hearing, FDC and Genius aired that they would be bringing separate claims against Sportradar in the High Court, and also against six scouts as representative defendants. This was on the basis that, as well as gathering data from live televised broadcasts, Sportradar operates a network of scouts who attend matches 'surreptitiously' to collect data and transmit it to Sportradar for its commercial use. According to FDC, some 335 scouts engaged by Sportradar were ejected from stadia in the 2018/19 season involving at least 272 matches.
These claims are now progressing through the High Court against Sportradar and the six scouts (on a representative basis in relation to all scouts conducting these activities).
Confidential information and trade secrets
FDC and Genius argue that the live match data is information that has substantial commercial value, because of the right to collect that data from inside the clubs' stadia and the advantages that brings, over obtaining such data from sources such as televised coverage. Not all matches are televised, and obtaining the data in this way inevitably introduces elements of delay when, for bookmakers, being able to obtain accurate and comprehensive data, quickly, is crucial.
Further, FDC/Genius argue that the exclusive right to collect and disseminate to bookmakers that commercially valuable information is itself a significantly valuable right, as recognised by the very substantial sums paid by Genius under its agreement with FDC. Accordingly, they argue that the FDC data is confidential information and/or a trade secret (under the Trade Secrets (Enforcement etc) Regulations 2018). As Sportradar is aware of Genius' exclusive rights (e.g., through its own participation in the tender process), they argue it owes an equitable obligation of confidence. The scouts' activities, FDC/Genius argue, contravene the Ground Regulations and/or ticket conditions, also in knowledge of Genius' exclusive rights. Accordingly, the unlicensed collection/dissemination/exploitation of FDC data contravenes equitable obligations of confidence owed to Genius.
In their defence, Sportradar and the scouts argue that insofar as the terms in the Ground Regulations and ticket conditions give effect to the FDC/Genius agreement - which Sportradar alleges in its competition claim is unlawful - by prohibiting scouts from recording live data which is readily apparent to any spectator, those provisions are unenforceable. Whilst they accept that the live data is commercially valuable, they argue that football matches are public events, and it is not possible to turn such events and information in the public domain into private or confidential events/information through the use of contractual terms. Further, in any event, those contractual terms are unenforceable or were believed by Sportradar/the scouts to be unenforceable.
Conspiracy to injure by unlawful means
Additionally, FDC and Genius argue that the joint actions of Sportradar and the scouts amounts to conspiracy to injure them by unlawful means – the alleged unlawful means consist of breach of the Ground Regulations and ticket conditions, trespass of land by the scouts, breach of confidence/trade secrets, and Sportradar's inducement of breaches of by contract by the scouts (by encouraging them to enter grounds to collect FDC data).
Again, Sportradar and the scouts rely on their belief that the FDC/Genius agreement is unlawful and that the restrictions imposed are therefore unenforceable.
Comment
This latest set of claims in a series of disputes relating to rights in sports data is one to monitor, alongside the related competition claim in the CAT brought by Sportradar. It follows a decision last year relating to rights in raceday data, where the Court of Appeal rejected a misuse of confidential information claim, whilst upholding a claim of unlawful means conspiracy. In that case, the Court did find that the relevant information was confidential in that it had a commercial value, and had been kept confidential through contractual restrictions placed on those entering racing course, but the majority held that the Defendant was not bound by an obligation of confidence. It seems likely that some of the issues raised in these disputes may ultimately need to be resolved by the Supreme Court.