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Introduction
It is common currency among fans of Premier League teams that high ticket prices and optimised ticketing strategies have served to exclude them from the clubs that they have followed for their whole lives. While the sense of disenchantment evident from radio and TV phone-ins and internet message boards may become increasingly apparent, advances in technology have allowed these fans to organise themselves more thoroughly, and mount more co-ordinated protests against the policies of their clubs’ owners.
Activism among football fans is by no means a recent phenomenon, with calls for the dismissal of managers, or even clubs’ boards, commonplace. The internet, however, has allowed fans to take a more active role in opposing the operations of the clubs. While no doubt much internet traffic is ignored by clubs, it has allowed more organised physical protests in and around the stadia. For example, the Newcastle United fans’ protests against Mike Ashley in September 2008 were widely advertised and promoted on the internet, on such sites as www.nufc.com, which indeed was the means by which the local police discovered that the protests were to take place.
A more recent phenomenon is the willingness of fans to undertake legal challenges against their clubs, or as it is seen by the fans, against the companies which run the business of the football club. Here too, increased organisation through the internet has allowed easier gathering of evidence for submissions to make more effective legal challenges. This article details two recent challenges, firstly a range of challenges by the Manchester United Shareholders’ Trust (MUST) against Manchester United’s ticketing strategies, and secondly a challenge by Tottenham Hotspur fans against a term of the club’s tickets precluding refunds in the event of rearranged fixtures.
Manchester United – challenges regarding ticketing strategies
Most active among supporters’ groups are fans of Manchester United. As an organised voice, sections of the supporters came to national prominence in 2005 when FC United of Manchester, a team purporting to represent the disenfranchised fans, was set up and entered the North West Counties League, as a protest following the club’s takeover by Malcolm Glazer. Opposition to the takeover was strong, with over 1,500 responses to the takeover being received by the Office of Fair Trading (OFT), mainly from Manchester United supporters opposing it.
MUST is now waging a more direct and organised campaign against Manchester United’s ticket prices and terms and conditions. In November 2008, MUST submitted a complaint to the OFT on two principal grounds. First, in breach of the Competition Act 1998 (Competition Act), Manchester United was abusing its dominant position to increase ticket prices unfairly. Secondly, in breach of both the Competition Act and the Unfair Terms in Consumer Contract Regulations 1999 (Regulations) the club had unfairly instituted a scheme known as the Automatic Cup Scheme (ACS). Under the ACS, season ticket holders must purchase tickets for not only all nineteen home games for the Premier League season, but also authorise the club to charge their credit cards for all home fixtures in the FA Cup and the Champions League. Under the season ticket terms and conditions, any season ticket holder who refuses to comply will have their season ticket removed with no refund. MUST has used its website, Facebook and Bebo pages extremely effectively to gather evidence, both prior to the initial submissions, and also during the investigation announced by the OFT.
These challenges have gained political support, both from Don Foster, the Liberal Democrats’ Culture, Media and Sport spokesman, who wrote a letter of support to the OFT, and Alan Keen MP, chair of the All-Party Football Group. Gerry Sutcliffe, the Sports Minister, has remained quiet on the issue since being publicly rebuked by Sir Alex Ferguson and Gordon Taylor, the head of the Professional Footballers’ Association following his comments regarding ticket prices and high wages in 2007.
Ticket prices
Introduction
Chapter II of the Competition Act 1998 largely mirrors Article 82 of the EC Treaty, with the fundamental principle being the prohibition of an undertaking with a dominant position in the market abusing its position.
Relevant market
Clearly, in order to establish an undertaking has a dominant position in a market, the market itself must be defined. MUST’s argument is that in this case the market is a narrow one. Rather than being the market of football generally, or even Premier League football, MUST argues that the market in question is the supply of Manchester United season tickets, since there is no reasonably substitutable product available. A Manchester United supporter would not, having failed to get a ticket at Old Trafford, use his or her newly free Saturdays or Sundays to make use of a season ticket for the City of Manchester Stadium or even Edgeley Park to watch Stockport County. There is anecdotal evidence of Arsenal fans being unable to obtain tickets to the Emirates Stadium and taking up season tickets at Leyton Orient, but if this model held universally true, then the grounds of the many lower league clubs in the north west, not to mention Wigan, Blackburn or Bolton in the Premier League, would be full of fans of Manchester United or indeed Liverpool watching games for which they could obtain and afford tickets.
This logic mirrors the approach taken by the OFT to define the market. It uses the “small but significant non-transitory increase in price”, or SSNIP, test also used by the US Justice Department and the European Commission. 1 The SSNIP test involves asking whether, if confronted by a price rise of five to ten per cent., consumers would switch to another product. If not, then such other product is not an effective substitute. This is borne out by the facts of Manchester United’s price increases. Since 2005, season tickets for Manchester United have increased by over 50 per cent., or if the Automatic Cup Scheme (on which see below) is taken into account, well over 100 per cent. There is no evidence of widespread defections from Manchester United to other clubs, and therefore it seems most likely that these are not substitutable and are separate markets.
Indeed, a case brought by the OFT against Manchester United, Umbro, the Football Association and others in relation to price fixing for replica football shirts in 2003 demonstrates the OFT’s thinking on the definition of the market in football related matters. 2 In the report issued following its investigation, the OFT stated that it did “not consider it appropriate to extend the relevant product market to encompass other team’s [sic] Replica Kits or Licensed Merchandise”. Here, their logic followed that of the average football fan, as “demand side substitution between Replica Kits of different teams is virtually non-existent,” meaning fans of one club would not, when confronted with an increase in price of their club’s kit, go out and buy the shirt of another club. The OFT report went on to quote the report prepared by the Football Task Force (a body set up by then Minister for Sport Tony Banks in 1997 to report to the government on the status of the game): “[football clubs] have a loyal customer base that is committed to the brand and they will not go elsewhere if the quality of the product deteriorates.” 3 The analogy between replica football shirts and clubs’ season tickets is perhaps better than the analogy between replica shirts and tickets to one-off games; a football fan may on occasion go and see a match of a team other than his or her own, but just as a football fan would not wear the replica kit of another team, he or she would be extremely unlikely to buy a season ticket of another team. If the OFT were to follow the approach in the replica shirts case regarding the relevant market of football products, then it is logical that the relevant market in this case would not be English or Premier League football season tickets but, just as MUST argues, the market in Manchester United season tickets.
Abuse of dominant position
If it is accepted that the relevant market is the market in Manchester United season tickets, then it hardly needs saying that as the sole supplier, Manchester United has a dominant, and of course monopolistic, position.
Merely holding a dominant position is not itself a breach of the Competition Act, nor does the Competition Act define abuse. Rather, section 18(2) sets out a non-exhaustive list of specific conduct with may constitute abuse. First on that list is directly or indirectly imposing unfair purchase or selling prices.
Clearly in the eyes of MUST, the prices are unfairly high. It quotes price increases of nearly 60 per cent. since the takeover of the club by the Glazer family in 2005. For example, a season ticket holder in the North Stand Upper Centre had to pay £532 for the season 2004/5, whereas for the 2008/9 season this had increased to £912. In addition, under the Automatic Cup Scheme, the season ticket holder would have to purchase tickets for all home games in the FA Cup and Champions’ League. Although of course the season ticket holder would therefore get to see more matches, he or she would have no choice about this, and therefore would have to budget £1,414 for the season, an increase of 166 per cent.
MUST backs up this argument of abuse with an interesting demonstration of the Manchester United fans’ familiarity with the legal process. Documents obtained under the Freedom of Information Act 2000 demonstrate a commitment from the Glazers not to increase prices unfairly, from which the Department of Culture Media and Sport (DCMS) clearly understood that ticket prices would not be raised. 4 The way in which the DCMS took the commitment at face value is in stark contrast to the open letter to Sir John Vickers, chairman of the OFT from Christine Oughton, the director of Birkbeck College’s Football Governance Research Centre on 24 June 2005. Her analysis of the Glazers’ business plan, which was built on highly leveraged investment, showed that ticket prices would have to rise at “around nine per cent. over the next four to five years (amounting to 54 per cent)”. Taken together with a 24 per cent. increase announced by the pre-takeover board of Manchester United, “these price increases amount to 90 per cent. … over five years and seem excessive.” 5
OFT action
MUST, not surprisingly, declares that there is “a high probability of the Complaint being successfully upheld.” 6 Other soundbites are equally bullish, with Alan Keen MP, chair of the All-Party Football Group, declaring: “The Automatic Cup Scheme seems a pretty clear-cut case of unfair practices.” The OFT, however, has confirmed that it will investigate MUST’s complaints, but only on the grounds of a breach of the Regulations, not of the Competition Act. This, as communicated to MUST, was due to a lack of resources to investigate the Competition Act aspects of MUST’s submissions. The OFT, however, is obliged to investigate an allegation (unless frivolous or being investigated by another appropriate body) made under the Regulations. 7 As such, although MUST has also complained about the ACS with reference to the Competition Act, this article will concentrate on the application of the Regulations.
It is worth noting that MUST have not included within their papers to the OFT a challenge regarding the ticket prices being unfair under the Regulations. This is sensible, given that the price of a service cannot be challenged under the Regulations, provided that the price is written in plain, intelligible language. 8
Automatic Cup Scheme
Background
The ACS is a scheme whereby season ticket holders must purchase all of the club’s home games in cup competitions by allowing Manchester United to charge that person for each such game automatically. This scheme was initially designed as a time-saving mechanism, allowing season ticket holders the opportunity to apply for all home tickets in one go, rather than having to apply separately for each cup game.
In the 2007/8 season, however, Manchester United made the ACS compulsory. As such, each season ticket holder must give their credit card details to the club and will be charged for each home cup game, be that the knockout stages of the Champions League or a non-league side in the third round of the FA Cup. In the 2008/9 season, in the face of opposition from fans, the club allowed an opt-out for the Carling Cup. This followed the home tie against Coventry in the Carling Cup when the official attendance was quoted as a near-capacity crowd of 74,055, reflecting the number of tickets sold, but in fact many fewer fans actually turned up for the game. Clearly therefore, fans bought the tickets they were contractually obliged to take up, but did not attend.
In the event that a season ticket holder does not allow Manchester United to charge their credit card, sections 10 and 28 of the season tickets terms and conditions allow the club to remove the supporter’s season ticket, and section 29 provides that the club will not provide a refund.
MUST submissions
MUST set out four principal objections to the ACS:
1 Bundling
By forcing season ticket holders to purchase a season ticket for every home game played at Old Trafford, Manchester United is denying season ticket holders the opportunity to buy tickets only for Premiership Matches. This is described by MUST as “contract bundling” which is “strictly prohibited” by the Competition Act. 9
Clearly there has been much legal analysis of contract bundling, though its use as a term of art stems from the cases brought by the European Commission against Microsoft in respect of bundling regarding Internet Explorer with Windows. As such, this does not translate perfectly to the case here, since in the Microsoft case the key issues concerned the ability of suppliers to enter the market and the possible stifling of innovation. The Competition Act does contain a restriction on: “making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of the contracts.” 10 It is difficult to support MUST’s arguments here, since there seems quite clearly to be a connection between games played by the same club.
2 Set price
When a season ticket holder gives their credit card details to the club, they will not know at the outset the amount of money they will have to budget for the season. Based on the North and South Stands Upper Centre, the extra cost on top of the basic price of the season ticket could have been as little as £144 for the 2008/9 season (assuming that the club does not get a home draw in the FA Cup and does not progress beyond the group stages of the Champions League, but could have been as much as £502. The supporters themselves have no influence in how much they will pay, and effectively no opportunity to decide how much they will pay towards their season ticket.
3 Quality of product
MUST’s arguments in this regard have two limbs. The first, and better, argument, is that season ticket holders are not guaranteed their own seat. A season ticket holder may have chosen their seat on the basis of view or area with a certain atmosphere. Nevertheless under the terms of their season ticket, for cup games they may be moved to a different area of the stadium, indeed away from those with whom they usually sit. This is common among Premier League clubs, since different allocations for cup games means that different sections of the ground must be used for away fans and so home fans must be moved.
The second limb to their arguments is that in cup competitions, they will not know the quality of the team that Manchester United will field. The argument is that whereas a supporter may have bought their ticket to watch the likes of Rooney or Ronaldo, they will find themselves watching a team consisting of reserve and youth team players in a game against weaker opposition in the FA Cup, or in a ‘dead rubber’ in the last Champions League group game. There are two problems with this argument. First, as the fixture list becomes increasingly congested, this would be something entirely to be expected in the FA Cup. Anecdotally, unlike Arsenal, Manchester United could be more likely to field a number of experienced players. Secondly, this can also happen in the Premier League, especially given the demands of successful clubs towards the end of the season. Fans of such teams are not guaranteed to see the star players in action each week as they are rested against weaker opposition as part of a club’s rotation policy. Perhaps the clearest example of this was the final day of the 2006/7 season, when Chelsea played Manchester United at Stamford Bridge, who had been confirmed as champions the week previously, and so this game was in effect a dead rubber. The game came to greater public attention when Chelsea magnanimously offered a guard of honour to Manchester United, but the team being applauded by John Terry among others, included Fangzhou Dong, the Chinese forward playing the only Premier League game of his four year Manchester United career and other youth team players being given the opportunity to start a Premier League match where there was little at stake. As such, even in the Premier League, there is no guarantee as to the personnel a supporter would see.
4 Non-guaranteed tickets
While it is accepted that supporters may not see the club’s star players in games against weaker opposition, a significant moral argument is put forward by MUST regarding more important games. While season ticket holders are obliged to purchase tickets for each home game in the Champions League and FA Cup, the club does not commit itself to provide these tickets. 11
In FA Cup games, the general rule is that away supporters should be allocated 15 per cent. of the ground’s capacity. At Old Trafford, this is greater than the usual away allocation for league games. As such, when Manchester United hosted Arsenal in the Fifth Round of the FA Cup, the increased allocation meant that not all of Manchester United season ticket holders were offered tickets. Similarly, due to allocation restrictions and the greater number of corporate and sponsors’ tickets, not every season ticket holder was offered a ticket for the home leg of the semi-final of the Champions League against Barcelona in 2007/8. Season ticket holders, therefore, are obliged to buy tickets for the less glamorous games, but do not automatically benefit by having access to the more important games. Clearly this is a price the club must pay for having a proportionately large number of season ticket holders. Chelsea, for example, have restricted the number of season ticket holders to the number of tickets that would be made available for the FA Cup Final, and so there is not the same pressure on guaranteed seats for important home cup matches.
This problem has resurfaced recently, with Manchester United due to play Tottenham in the Carling Cup final. Even those season ticket holders who opted in to the Carling Cup element of the ACS are not guaranteed a ticket for Wembley due to restrictions on allocations. This, of course, is a slightly different argument as the final is not a home game, though the moral argument remains the same. This, no doubt, will result in a greater amount of evidence being supplied to the OFT as part of its investigation.
Analysis of the Regulations
Introduction
The Regulations apply to all suppliers using standard contract terms with consumers, and so apply to Manchester United season tickets just as they apply to the sale of package holidays or CDs. The principle behind the Regulations is contained in Regulation 5(1) which states that a standard term is unfair “if contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.” Any term which is found to be unfair will not be binding on a consumer. 12 In common with the abuse under the Competition Act, the Regulations do not state explicitly what terms will be unfair, but Schedule 2 to the Regulations contains an indicative and non-exhaustive list of the types of terms which may be judged to be unfair on a case by case basis. It is important to note that when assessing unfairness, it is not necessarily how the terms are actually used that is important. Rather, it is judged on how such a term may be used, and that they may be capable of causing detriment to the consumer. 13
Unlike the Competition Act, the OFT has a duty to investigate claims under the Regulations. 14 The OFT does not itself have the power to declare a particular term unfair, as this is the preserve of the court. The OFT does have the power, nevertheless, where it considers a particular term to be unfair, to take action on behalf of consumers in general to stop its continued use by seeking an injunction accepting undertakings from a business to amend such terms in lieu of court proceedings. Individual consumers also have a right of action independent of any action taken by the OFT.
MUST’s arguments
MUST, wisely, do not restrict their arguments to specific illustrations of unfairness. Nevertheless, it is a useful exercise to analyse their claims in light of both the list in Schedule 2 to the Regulations and more general guidance from the OFT which provides an indication on the sorts of issues it would consider unfair and open to challenge. It is, of course, important to remember that these are not definite categories, since a term in one contract may be adjudged to be unfair, whereas identical wording in another may be seen to be fair. In judging fairness, the court would take into account not just the wording of the term, but a range of other factors, including the nature of the services and all other terms of the contract. The most applicable of these illustrations contained in Schedule 2 will be considered in turn.
Unilateral Alteration
MUST’s arguments 1 to 3 seem closest to paragraph 1(k) of Schedule 2, which states that terms may be unfair if they have the object or effect of:
enabling the seller or supplier to alter unilaterally without a valid reason any characteristics of the product or service to be provided.
Here of course lies the difference between a standard league season ticket and the uncertainty of the club’s participation in club competitions. Putting aside the question of the quality of personnel or indeed performance a club will put out in any given match, a season ticket holder will know the identity of the opposition for all nineteen league games to be played by the club. What he cannot know, of course, is who the club will face in the cup. The valid reason qualification, however, is crucial here. Manchester United can clearly show there is a valid reason for varying the contract to include an unspecified number of games, the reason being that the identity of the teams they will be drawn to face in the FA Cup or the Champions League during a season is by definition unknown at the beginning of the season. As such, there is no change to the contract. OFT guidance on this paragraph centres on changes to the contract, such as where a music act is billed to appear at an event, but the promoter changes the act in between the ticket purchase and the event itself. Giving the consumer the right to opt out of a particular match when he or she knows the identity of the opponents in the cup competitions would, of course, defeat the entire reason for the ACS, since season ticket holders would be more likely to cancel in the event of a home tie against, say, Burton Albion, than they would against Arsenal, and therefore the ground would be less likely to be filled. Indeed, this structure has been used by UEFA when selling tickets for the European Championships in Austria and Switzerland in 2008. It was possible to buy tickets for a particular team in the group stages, plus a supporter would automatically be charged for each game for which their team qualified. As such, a fan of Spain would have been charged for all six games which Spain played, but a fan of Poland would only have been charged for the three group games. Clearly just because this ticketing structure was not challenged does not mean it could not be considered unfair, but it shows that it is a structure accepted in competitions similar to the Champions League.
Indefinite financial burden
Further guidance from the OFT suggests that terms allowing suppliers to impose indefinite financial burdens on consumers, in addition to the agreed price, may be considered unfair. 15 However, suppliers would not be prevented from charging consumers specified sums in specified circumstances. This is precisely the situation with the ACS, since although the amounts payable by season ticket holders are not definite, they are certain depending on certain circumstances. The OFT suggests that unfairness may be mitigated if there is a right to cancel without penalty before becoming subject to the additional burden. In this case, this would mean the season ticket holder cancelling his or her participation in the ACS part way through the season, which seems a little unlikely, given that as the season reaches its conclusion, the more likely the club would be to play more high-profile matches against better opposition, and so more likely to remain in the ACS, and even if not, then the club should be more able to resell those tickets further into the relevant tournaments. As such, an amendment such as this would be unlikely to harm the club greatly. The one case in which a right to cancel part way through the season might harm the club would be in the event that Manchester United finish third in their group in the Group Stage of the Champions League, and then rather than qualifying for the knock-out stages, they would enter the Europa League (as the UEFA Cup will be renamed next season). Playing a lower standard of opposition could result in lower interest in tickets.
Nevertheless, as set out above, a term only has to have the potential to cause detriment to the consumer to be considered unfair. In this case, the current economic situation may favour MUST. Season tickets, or more accurately the Premier League portions of them, were purchased by supporters last summer, before the economic situation deteriorated. Supporters could now find themselves committed to purchasing further tickets, which possibly they may no longer be able to afford as readily. The absence of a right of cancellation without losing the remainder of the Premier League tickets, which have already been paid for, would seem to be one of MUST’s best arguments at unfairness.
Realisation at will of supplier
Also applicable may be paragraph 1(c) of Schedule 2, where a term may be unfair it makes:
an agreement binding on the consumer whereas the provision of services by the seller or supplier is subject to a condition whose realisation depends on his own will alone.
Once again, the problem for MUST is that uncertainty as to the provision by Manchester United are not necessarily within their control.
Unequal legal rights
MUST’s final argument may be considered alongside paragraph 1(b) of Schedule 2. Terms may be unfair if they have the object or effect of:
inappropriately excluding or limiting the legal rights of the consumer vis-à-vis the seller or supplier … in the event of a total or partial non-performance or inadequate performance of any of the contractual obligations. This carries further weight when compared with OFT guidance. Their commentary on the Regulations states that “rights and obligations under a contract cannot be considered evenly balanced unless both parties are equally bound by their obligations under the contract.” 16 In this case, the obligations of season ticket holders and the club are not evenly balanced, given the consumer’s obligation to purchase tickets does not mirror the club’s obligation to provide them, particularly given the club is not obliged to provide tickets for its most high profile games. This seems the strongest of all the arguments.
Compensation by consumer
There is one further provision of the season ticket terms and conditions which MUST have not directly specified in their submission to the OFT. Under clause 20, in the event that a season ticket holder does not allow his or her credit card to be debited with the cost of a cup ticket, the club can cancel the season ticket without a refund. This ties in with the challenge of the ACS implementing an indefinite financial burden. This seems to fall within paragraph 1(e) of Schedule 2, where a term may be unfair if it requires:
any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation. In this case, cancelling the remainder of the season ticket seems disproportionate to the loss that the club will suffer. At the very least, the club should be able to mitigate its loss by reselling the remainder of the league games in respect of that season ticket, and quite possibly the cup games too. It is surprising that MUST have not specifically this clause in addition.
It is arguable, indeed, that clause 20 is a penalty clause and therefore unenforceable. The classic case on penalty clauses, Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd 17 requires that any clause imposing a set level of damages on a party must be a genuine pre-estimate of the loss suffered by the other, rather than the nature of a penalty intended to secure performance of the contract, otherwise the clause may not be enforceable. It would be difficult for Manchester United to argue that the level of loss sustained by the club for a failure by a season ticket holder to pay for a ticket in the third round of the FA Cup will be the forfeiture of the remaining ten or so games left in the league season at that point. Of course it is well established that it is for the party who on whom the clause is being enforced to demonstrate that it is a penalty and therefore unenforceable. 18
Possible outcomes
There are a range of possible outcomes for MUST’s challenge. Rather than applying for an injunction to declare certain terms unfair and therefore unenforceable, it seems most likely that any action against Manchester United will be taken by requiring undertakings in lieu of court action. Many of MUST’s arguments regarding contract bundling and the quality of the product do not seem strong, but the two aspects which may necessitate intervention are the inability for supporters to cancel the ACS at certain points without financial penalty, and the club’s inability to guarantee tickets for more important games. On this first point, given that it is certain that the club will play three games in the Group Stage of the Champions League, the season ticket holder could be permitted to cancel the ACS element once the guaranteed games have taken place. This will allow the club still to sell tickets for the later stages of the Champions League, which in any case should prove more in demand, or alternatively if the club was playing only in the Europa League then arguably the games a season ticket holder was committing to would be very different from those in the Champions League.
On the second point, it would seem most sensible for the club to restrict the numbers in the ACS to the number for which it can guarantee tickets for all games, such as Champions League semi-finals. This, unfortunately, would not help fans this season, since if the season ticket holders outnumber the available seats, there is nothing that can be done to remedy this through the terms and conditions of the season tickets.
Tottenham Hotspur - refund of tickets
A case concerning the ability of a Premier League club to deny refunds to ticket holders has also attracted the attention the OFT. Supporters of Tottenham Hotspur made a number of complaints to Haringey Trading Standards over one of the terms of sale of the club’s tickets that “tickets cannot be refunded or exchanged under any circumstances”.
The OFT noted that such a provision was incompatible with the Regulations, given that “when a consumer enters into a contract to buy a ticket to a performance or match there is a clear date, location and time, and there may be any number of valid reasons why ticket-holders cannot attend on a rescheduled date.” 19
Following this, on 4 December 2008, the OFT announced that it had written to the football associations of England, Wales, Scotland and Northern Ireland asking them to remind member clubs to remind member clubs to ensure that they provide fans with the option of a ticket refund where a match is postponed, and calling generally on all clubs to ensure their terms and conditions are compliant with the law, in particular the Regulations.
This should be no surprise to football clubs as OFT guidance on this has been consistent. Guidance from 2003 suggests that terms which claim consumers are never entitled to refunds are “very likely” to be considered unfair, as they can be used to deny the consumer the right to a refund even where the supplier is in breach of contract. 20 It is important to remember that the test of unfairness takes note not only of how a term is used in practice, but how it could be used, and so a term is open to challenge if it is drafted so widely that it could be used in a way that harms consumers. As such, it was no surprise that the OFT challenged such a widely drafted term. Indeed the OFT’s guidance specifically states that: “We consider that consumers should be entitled to a full refund of prepayments if the event, performer or activity is cancelled, rescheduled, or there is a material change to the subject matter of the contract.” 21
It should be noted that the ruling from the OFT did not deal with season tickets, and so if league games are rescheduled, there will be no refund for season ticket holders. Nevertheless, this gives further encouragement to the supporters of clubs who seek judicial or regulatory remedies against their clubs.
Conclusion
It is a pity that the OFT declined to investigate MUST’s complaints on Competition Act grounds. MUST, politicians and the public as a whole seem to have been keen for a more wide-ranging investigation into football ticket prices by the OFT, but this will not now happen. Football clubs, no doubt, will breathe a sigh of relief, first as this investigation will not now happen, and secondly because the OFT will not investigate under the Competition Act, it will not be forced to define the market for a club’s season tickets. Any ruling that the market for football tickets would be restricted to that of the club in question would mean in every case that a football club had a dominant position. As such, any action by them to change prices, amend ticketing strategies or even amend terms and conditions of tickets or season tickets, could result in challenges being brought to the OFT.
The OFT has a duty to investigate MUST’s claims regarding the Regulations, and as such the investigation will be likely to centre around the ACS rather than the broader question of ticket prices. As such, if there is political will to challenge the ticket prices of the Premier League, then this will have to achieved by way of direct political action, rather than through the OFT.
Angus Bujalski
Article to be published in the Entertainment Law Review Volume 20 Issue 5 2009. Reproduced here with permission of Sweet & Maxwell.
1 OFT publication OFT403, “Market Definition”.
2 OFT Decision CA98/06/203 on case CP/0871/01, 1 August 2003.
3 “Football: Commercial Issues”, a submission by the Football Task Force to the Minister for Sport, 22 December 1999.
4 Internal memorandum to Richard Caborn dated 7 July 2005, obtained under FOI case CMS 83401.
5 Birkbeck College press release, 24 June 2005.
6 MUST press release, 19 November 2008.
7 Regulation 10(1).
8 Regulation 6(2).
9 MUST press release, 19 November 2008.
10 Section 18(2)(d) Competition Act.
11 Section 12 of the Manchester United Season Tickets Terms and Conditions.
12 Regulation 8(1).
13 OFT publication OFT143 “Unfair Standard Terms”.
14 Regulation 10(1).
15 OFT publication OFT143, “Unfair Standard Terms”.
16 OFT publication OFT667, “Unfair Terms in Consumer Entertainment Contracts”.
17 [1915] AC 79.
18 Robophone Facilities Ltd v Blank [1966] 3 All ER 128.
19 OFT press release 142/08, 4 December 2008.
20 OFT publication OFT143, “Unfair Terms in Consumer Entertainment Contracts”.
21 OFT publication OFT667, “Unfair Terms in Consumer Entertainment Contracts”.
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