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Sports data and sports betting: competition and private law rights arguments to be aired in Sportradar dispute

Posted on 23 December 2020

The complex sports data dispute between Sportradar and Football Dataco (FDC)/Betgenius demonstrates the high stakes in sports data and sports betting services, particularly in relation to live match data. Following court decisions earlier this decade finding that live match data may be protected by database right, the focus has now switched to competition law arguments. These arise out of the exclusive agreement between FDC and Betgenius - underpinned by the football leagues' requirements that their clubs impose regulations of entry and ticket conditions – as well as FDC's position in the sports data market.

A recent decision of the Competition Appeal Tribunal (the CAT) – a specialist tribunal dealing with competition law issues – has drawn out the range of issues that will be argued by the parties, and others brought into the dispute such as individual scouts and potentially football clubs, once the matter goes to trial.

Background

Sportradar and Betgenius 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 granted FDC the right to attend all their matches and appoint or sub-license a third party – which has been Betgenius since its five year appointment commenced in May 2019 – to collect, collate and distribute the data from those matches.

The Leagues require their member clubs to use "Ground Regulations" setting out the terms for entry to their grounds, including restrictions on recording or transmitting live data without a licence. They also encourage and recommend to the clubs that they use Ticket Conditions specifying that ticket holders are prohibited from recording or transmitting any material relating to the match or players unless it is for personal use.

Sportradar and other suppliers of such data services are able to obtain live data by using 'scouts' who watch live TV matches or online streamed coverage ('off-tube data'). However, not all matches in the Leagues are televised or streamed and off-tube data has a time-lag, so it is no substitute for collecting data directly from being at the live match.  

The claims

Sportradar began its claim in the CAT in early 2020, seeking an injunction and damages under section 47A of the Competition Act 1998 (CA 1998). Sportradar's claim has two aspects:

  • The agreement between FDC and Betgenius violates both EU (Article 101 of the Treaty on the Functioning of the European Union (TFEU)) and UK competition law (Chapter 1 Prohibition, in the CA 1998). Sportradar argues that the agreement is a long-term exclusive rights agreement amounting to an infringement by object and/or effect in restricting competition in the collection of Live League Match Data (LLMD) for on-supply to bookmakers. The reliance on the Ground Regulations and Ticket Conditions in order to give effect to the alleged unlawful agreement is also alleged to be unlawful.
  • FDC has abused its dominant position (in the UK and potentially other countries) in breach of Article 102 TFEU and the Chapter II Prohibition in CA 1998 since its agreement with Betgenius differs from "normal competition or competition on the merits" and hinders the growth of competition in providing sports data and sports betting services, including LLMD.

In their defence, FDC and Betgenius deny their agreement has an anti-competitive object or effect. They argue that the restriction on Sportradar logging live data for commercial purposes arises under the Ground Regulations and Ticket Conditions, independently of their agreement. Further, their agreement concerns the creation and use of a database right, and the LLMD is a trade secret under the Trade Secrets (Enforcement, etc.) Regulations 2018 (TSER 2018) (which implemented the Trade Secrets Directive) and/or confidential information. They rely on IP rights in the LLMD, including rights over confidential information held by FDC, to prevent Sportradar collecting and disseminating it at the grounds. Further arguments include: that, if there is an appreciable restriction of competition, the FDC/Betgenius agreement benefits from an exemption under Article 101(3)/s.9 CA 1998; the supply of LLMD is not a relevant market; FDC is not dominant in any relevant market; and FDC has not committed an abuse by entering into the agreement (and if it is, its conduct is objectively justified).

In addition to their defences, FDC and Betgenius plan to make certain counterclaims based on private law rights against Sportradar, and also against six scouts as representative defendants. As these are not competition law claims, they fall outside of the CAT's jurisdiction and would have to be brought in the High Court. FDC/Betgenius' proposed claim against the scouts is that they have breached the Ground Regulations and Ticket Conditions, amounting to breach of contract and trespass, and also that they have breached the equitable obligation of confidence, owed to both FDC and Betgenius. Sportradar is alleged to have procured the scouts' acts of trespass and breach of confidence and to have breached an obligation of confidence in its own right by supplying the LLMD obtained from the scouts to bookmakers. Finally, FDC and Betgenius allege that Sportradar is liable for an unlawful means conspiracy arising out of its arrangements with the scouts (the unlawful means being the trespass, breach of contract and breach of confidence and/or of rights in a trade secret).

Sportradar's position is that the Ground Regulations and Ticket Conditions are unenforceable to the extent that they give effect to the contractual exclusivity granted to Betgenius, because that exclusivity violates competition law. It also argues that the LLMD is not confidential, and denies there were any unlawful means, relying again on its competition law arguments.

No transfer from the CAT

Given that FDC and Betgenius' proposed counterclaims fall outside the jurisdiction of the CAT, they argued that the claim in the CAT should be transferred to the High Court so that the whole case could be heard together. As can be seen from the above review of the issues in this case, the potential counterclaims raise complex issues of private law including the law of confidence, database rights, the TSER 2018, as well as unlawful means conspiracy.

However, the CAT did not accept that this amounted to a good reason to transfer the case out of the CAT to the High Court. FDC/Betgenius' defences raise a range of significant competition law issues which would be significantly assisted by the particular features of the CAT as a specialist tribunal, including an economist being part of the tribunal hearing the case. Further, resolving Sportradar's argument that any private law rights relied upon in the counterclaim cannot be used to prevent the collection of LLMD depends on the prior resolution of its competition law arguments. Any concerns about potential inefficiency could be dealt with by the same judge chairing the CAT tribunal and hearing the High Court action.

Separate action against Soft Construct (Malta)

The decision also notes that Betgenius has brought a High Court claim against Soft Construct (Malta) (SCM) and two operators of online gambling websites alleging that SCM has been 'scraping' its database involving over 150 data rights agreements in a number of sports. SCM's defences concern both arguments relating to the alleged database rights, but also argues that the data rights agreements infringe Article 101 TFEU and/or the Chapter 1 Prohibition. Betgenius has said it is likely to apply for summary judgment on SCM's competition defence.

Analysis

Given the commercial value of sports data to a range of commercial organisations – particularly when it comes to Premier League football – it is hardly surprising that complex disputes, such as this one, are starting to arise more frequently.

Though what is unusual about this dispute is the fact that a victory for Sportradar may arguably be a pyrrhic one in light of the fact that it would potentially lower the barriers to entry for other competitors to compete with Sportradar itself in a number of other sports where Sportradar is the exclusive licensee of such data.

The outcome will also be closely monitored by other sports leagues, governing bodies and the clubs themselves, who rely so heavily on the revenue generated from the commercialisation of their data. Undoubtedly such organisations will be examining their commercial agreements with their data partners to make sure that they are properly protected in the future should Sportradar ultimately prove to be successful.

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