Archive | November, 2010

Can a ‘Tweet’ be defamatory? Chris Lance Cairns v. Lalit Modi [2010] EWHC 2859 (QB)

November 26, 2010

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Read the full case here: http://www.bailii.org/ew/cases/EWHC/QB/2010/2859.html

The case concerned a tweet on 5 January 2010 from the defendant, Lalit Modi, who at the time was both Chairman and Commissioner of the Indian Premier League (IPL) and Vice-President of the Board of Cricketing Control for India (BCCI). Modi was later suspended from these positions in April and ceased to occupy them from September 2010. The case was further complicated by a claim against an online cricket magazine – Cricinfo UK who repeated the defendant’s words (although a New Zealand News site [http://tvnz.co.nz/cricket-news/chris-cairns-pushes-twitter-libel-case-3900692] states that Cricinfo has now paid Cairns unspecified damages).

Modi was alleged to have made comments in a tweet that the claimant had been sacked from an Indian Cricket League team (Chandigarh Lions) because of match-fixing, and not as Cairns states because of knee problems from a charity walk. While the original tweet was removed from LalitKModi’s profile 16hrs later, a cricketing blog [http://shortofalength.wordpress.com/2010/01/05/chris-cairns-banned-from-joining-the-ipl-yes-says-lalit-modi-on-twitter/] has uploaded an alleged screen capture of the tweet from cache – can anything ever be deleted anymore?!

Cairns, quite understandably perhaps, argued that this tweet was offensive and a libellous body blow; by contrast, Modi denied that any real or substantial tort occurred within the jurisdiction and brought proceedings to have the claim set aside [2] for abuse of process given its ‘trivial’ nature and speculative effect.

The High Court were therefore asked to draw a line in the crease, and in particular to answer whether a ‘tweet’ could be published and if so, how its readership could be calculated? Although Mr Justice Tugendhat heard conflicting evidence from two experts as to how publication could be determined from Modi’s followers on Twitter, ultimately Tugendhat J decided that the actual number of direct followers was irrelevant given the sensational nature of the allegation within the tweet [30] and the risk that these allegations might be further published elsewhere. Indeed, he held at [42] that the number of publishees was only one factor in an abuse of process claim. Cairns is therefore free to continue with this action to trial in order to protect and vindicate his reputation, any damages that follow this decision are very much a secondary consideration.

Watch this space, or should that be wicket…..?

Youtube Video of “Lalit Modi ‘On The Record’ – Full Interview”:

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Robert Dee, dubbed the “World’s Worst Tennis Player” loses…..his libel case against the Daily Telegraph

November 22, 2010

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Read the Full case report: http://www.bailii.org/ew/cases/EWHC/QB/2010/924.html

and the Daily Telegraph article about the case: http://www.telegraph.co.uk/sport/tennis/7644181/Worlds-worst-tennis-player-loses-again.html

Robert Dee’s own website contains an extraordinary collection of 40 apologies, corrections and reports from Newspapers that printed the same story as the Daily Telegraph but ultimately settled or offered apologies: http://www.robertdee.org/apologies_and_corrections (indeed he even goes as far as scanning onto the website the cheque for £12,500 that he received from the BBC in damages!)

The case concerns an article published in the 23rd April 2008 Daily Telegraph about Robert Dee, a 23yr old British Tennis Professional. The article suggested on both a paragraph on the front page and on the back page of the sports supplement that Dee had lost 54 matches in a row on the International Professional Circuit and was therefore the “world’s worst tennis professional”.

Dee sued the newspaper for defamation on 21st April 2009, 2 days before the expiry of the 1yr limitation period. His solicitors claimed £500,000(!!!!) and claimed that the front page item could blight his potential future career as a tennis coach [8] as while the claimant had lost these matches, he had had some success in the domestic Spanish league.

The newspaper denied that the article was defamatory, but in the event that it was, it relied upon a fair comment defence.

The Court held that, following Charleston, the key question was whether various (front and back page) articles were “sufficiently closely connected as to be regarded as a single publication” [29], not whether these articles were separate, on multiple pages or written by different authors. Given this, it quickly became apparent that the front and back page articles needed to be taken together. Mrs Justice Sharp DBE did however note at [30] that in reality many people may only have read one of the articles, and it was theoretically possible to argue that in more controversial cases, this issue could be determined at trial.

Whether the article was capable of a defamatory meaning was fairly straightforward, as it could suggest that the claimant lacked talent or “unreasonably and unrealistically persists in a career as a professional tennis player which is an expensive waste of money and doomed to failure” [38]. The problem was in evidencing that this caused Dee to be shunned or avoided. In the end, although the claimant argued that the focus of the complaint was that the article suggested incompetence or a lack of skill, the real complaint was one of exposing Dee to ridicule by making him look “absurdly bad at tennis” [55].

It is worth noting Sharp J’s comments that: “In my view it is not easy to translate these principles to the sporting arena, even though I entirely accept that many sportsmen and sportswomen, and the Claimant is one of them, are professionals who earn their living through their sporting skill, or endeavour to do so. It is difficult to characterise an allegation of relative lack of sporting skill, even if it leads to the bottom of whichever league the person or team participates in as necessarily imputing incompetence, quite apart from the question which could plainly arise as to whether such a suggestion is purely a value judgement. Such as allegation might be said to dent someone’s pride rather than their personal reputation, depending of course on the context. In every race, match or other sporting event, someone has to come last: that is the nature of competitive sport. Losing in sport is, as Mr Price [Defendant Counsel] submits, an occupational hazard” [49].

Sharp J was also highly critical of the suggestions both that the article could affect a future career as a coach at some unspecified time in the future because of the paper’s criticism of his athletic ability [53], and of the claimant’s pleaded case. Indeed at [58], She states that a claimant must “state clearly what his case is so the relevant issues are properly delineated in advance of trial and so the defendant has a proper opportunity to defend itself against what the complainant is really complaining about.”

The problem the claimant had is that the following, somewhat damning facts, were uncontroversial:

  • The claimant had a run of 54 consecutive defeats during which he did not win one set, in tournaments under the jurisdiction of the ITF and ATP
  • This consecutive run of defeats is a record equalling worst ever run of defeats in such tournaments
  • While the claimant also played (with some success) in domestic Spanish tournaments, these competitions did not directly award World ranking points

When at [109], the Court concluded that the article did draw a distinction between his performance on the international tennis circuit and the Spanish tournaments, the claimant really had no case left. He could not complain about the central facts of the article, as these were effectively true! As such the Defendant was awarded summary judgment, game set and match to the newspaper.

Youtube News Report of Robert’s Tennis Victory (@ 1:26 onwards):

see also a great blog posting on the case from the Jack of Kent: http://jackofkent.blogspot.com/2010/05/libel-and-tennis-trophies-of-robert-dee.html

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Contemporary Issues in Sports Law and Practice, 2010

November 9, 2010

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Many thanks to De Montfort University (DMU) and the British Association for Sport and the Law (BASL)  for hosting what was once again a very enjoyable afternoon of speakers. The half-day conference heard from five speakers exploring very diverse, but equally key topics:

  • Karen Moorhouse (RFL) discussed the Rugby Football League’s renewable three-year Club Licensing scheme and how this differed from a more American-style franchise system. The talk explored all aspects of this scheme from an overview of the current system and the criteria employed to define the applicable standards, to how the RFL had anticipated any potential challenges (both legal and fanbase). The proof of the pudding will really come in the next licensing round though when at least one Super League club will not have its current licensed renewed….
  • Alistair Maclean (The FA Group) gave an overview of the FA Group’s commercial rights. This was a very informative (and colourful) presentation and provided a thorough explanation of the new commercial strategy (FA Partner Programme 2010-14), blending a comprehensive whistle-stop tour through the FA Rights Inventory with commentary on the practicalities underpinning each branded item.
  • The blog’s very own, Jon Heshka (Thompson Rivers University, Canada) presented a paper on regulating ‘Technological Doping’ in sport. Jon outlined the key issues and controversies facing sport stemming from the current unprincipled approach to technology before analysing what options regulators and governing bodies could take. In particular, the talk debated the use of the WADA criteria for chemical enhancement and Jon posited whether the solution really lay in our definition of what were the essential characteristics of sport.
  • Christopher Stoner QC (Serie Court Chambers) provided a (much-needed) insight into Paralympic Disability Classification. The talk briefly covered all aspects of classification from a historical introduction to the current criteria for assessment, protests and appeals. What became particularly evident at the end of the talk was that while the current classification system has been in operation for a number of years, it is still evolving and being refined. It will be interesting to see what changes (if any) are made to protests ahead of the forthcoming 2012 Paralympics…
  • Ian Lynam (Partner, Charles Russell LLP) evaluated the use of player quotas in UK Sport, in particular, whether leagues could implement caps on the numbers of ‘foreign’ players. Essentially there were two key elements to this presentation, Direct Discrimination (as epitomised by the recently dropped FIFA 6+5 rule) and Indirect Discrimination (as seen in UEFA’s ‘Homegrown Player’ rule. Ian then rounded the event off with practical advice to any governing bodies wishing to implement such a rule.

The date for next year’s Contemporary Issues Event has now been set for 4th November 2011, information on how to book will follow nearer the time.

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Web-interview with Fletcher F. Cockrell

November 8, 2010

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Fletcher F. Cockrell – Author, litigation attorney, former college basketball player and coach, NBA agent and now Chief Legal Counsel for Texas Association of Basketball Coaches has kindly answered our questions:

  1. Why did you write “Dismissed with Prejudice” and what is it about? I wrote “Dismissed with Prejudice” in order to deal with the legal aspects of being terminated as a collegiate coach and how it relates to university administrations and the NCAA.  The story is about an assistant coach who gets fired (dismissed) by a dirty, political and philandering head coach.  The coach literally throws the young assistant under the bus in order to keep the NCAA from digging in to his program for other issues that he has regarding his wealthy and crooked booster.  A young attorney in a neighbouring city becomes enamoured with the pattern of this head coach because he has done the same thing over and over for years.  The attorney decides to offer his services to the fired assistant and a legal battle uncovers layer upon layer of fraud, cover ups and back-room deals that lead all the way to the Governor’s office.
  2. Do things like this really happen in collegiate basketball? This type of thing could easily happen in collegiate basketball involving a big money program.
  3. What inspired you to write this book? I wrote this book because of my background in collegiate coaching and also my experience as a practicing trial attorney now.
  4. Based on your experiences, what lessons would you teach an up-and-coming basketball coach in the league today?  I would tell them to listen more than you talk, bootstrap yourself to someone who is squeaky clean and trust no one.
  5. What exactly is your role as Chief Legal Counsel for the Texas Association of Basketball Coaches and how do you work with athletic directors?  My role as Chief Legal Counsel for the Texas Association of Basketball Coaches is to represent coaches when they have been fired or have issues regarding their employment.  I communicate with the athletic directors at times to try and mediate some of the problems and issues with the coaches in question.
  6. Were there any difficulties in moving from a coach (poacher) to helping to regulate the sport (gamekeeper)? I do miss coaching at times but am very comfortable where I am in my life.  I wouldn’t trade my life experiences for anything in the world.
  7. Assuming the biggest threat to basketball are agents and big money, and how do you think this can be fixed? I don’t think the agent/money issue can be totally fixed but the only way it can be addressed is through the threat of imprisonment and serious fines.
  8. What has been the most interesting case you have been involved in and why? My most interesting case is when I represented an illegal immigrant from Mexico working as a contractor for a huge conglomerate company in Arkansas.  They were basically hired illegally at a very low rate of pay.  One of the workers lost his hand in a work accident, and they just tried to send him home without compensation of any kind. I exposed them and they settled in order to avoid further media exposure.  It was a very sad experience and really opened my eyes about one of the biggest companies in the United States.
  9. How do you see the relationship between the NCAA, the NBA and FIBA?  The NCAA is a money-making business that thrives on television contracts.  The NCAA feeds the NBA, and their relationship is tenuous at times.  The NBA is a company run by one of the brightest business minds in sports, David Stern, and they will continue to grow.  FIBA is becoming more and more popular as basketball is the biggest sport worldwide.  The money being paid by European teams leads me to believe that the NBA could become global at some point.
  10. It strikes us as unusual that few athletes who have had successful playing careers go on to become successful lawyers. Is this unusual and why isn’t anyone following in your footsteps? It is very unusual for a former college coach to enter the legal field and I think the reason no one has followed in my footsteps is because they aren’t quite as crazy as I was.  It was a very stressful and difficult road attending law school, passing the bar and practicing law after 15 years of collegiate coaching.  But as I said, I wouldn’t trade the road I have travelled for anything in the world.
  11. What will your 2nd book be on? My next novel that I am working on deals with a big oil company in Houston, Texas.  This company has a risk manager that evaluates the dangers of oil and gas contamination throughout the country.  He is basically a bean counter that weighs the financial risks of excavation of dangerous contaminants versus simply allowing them to remain in the ground and what the costs of litigating wrongful deaths caused from the poisons below the ground. This risk manager is desperately trying to move up in the company and is trying to cut costs by gambling in certain areas where the toxins are.  His young assistant discovers what he is doing and begins investigating it, finding numerous deaths in certain areas where their company has old wells.  He contacts his roommate from college who is a struggling street lawyer and the attorney begins doing his research as well.  As the lawyer uncovers what is really going on, it leads to uncovering the fraud of one of the largest oil companies in the United States who also has ties to the Oval office.

For more information on Fletcher’s first novel, “Dismissed with Prejudice”: http://www.amazon.com/Dismissed-Prejudice-Fletcher-Cockrell/dp/1448919002.

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Pocketful of Dollars: Hudson Bay Apparel Brands LLC v. Umbro International Ltd [2010] EWCA Civ 949

November 7, 2010

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Read the full case: http://www.bailii.org/ew/cases/EWCA/Civ/2010/949.html

The case concerned several sports clothing retailers, the claimants (Hudson Bay) are a North American Company and recently official suppliers to the Vancouver 2010 Winter Olympics, the defendants (Umbro), by contrast, are primarily a UK retailer focusing in particular on an international football (soccer) brand.  Essentially, the appeal concerned the validity of a series of contracts made between Umbro UK, Umbro’s subsidiary US company, Umbro Corp Inc (based in Delaware) and three North American clothing retailers: Hudson Bay Company (HBC), Dick’s Sporting Goods and a catalogue firm, S&S.

At issue was whether:

1)      Umbro UK had wrongly allowed Dick’s Sporting Goods to market off-field wear in breach of HBC’s exclusive licence

2)      HBC had acted in breach of contract by marketing on-field wear (Umbro UK’s counterclaim).

3)      Umbro UK had wrongly hindered HBC from exploiting its off-field licence in breach of an implied duty of co-operation

At first instance ([2009] EWHC 2861 (Ch)), the Judge (Mark Herbert QC) upheld all three claims. The claimants (HBC) contested aspects of each of these findings.

To understand the case, it is important to understand the nature of the disputed products. Essentially, Umbro UK sold three types of branded clothing:

  • “teamwear” (soccer kit provided to competitive teams [3])
  • on-field wear (was defined at [3] as “clothes used on the field of play”. While this is a pretty vague definition, there was a suggestion that the performance nature of the fabric e.g. high-wicking absorption qualities, the presence of sleeves and smaller less flamboyant logos all pointed to on-field use)
  • off-field wear (was defined at [7] as: “Men’s off-field apparel (meaning all apparel products that are not specifically intended to be used on the field of play for soccer including, for the avoidance of doubt, performance shorts and soccer jerseys) and shall, for the avoidance of doubt, only include the following: t-shirts, sweatshirts, sports polo shirts, hoodies (zip and non-zip), tank tops, reversible shirts, [shirts], sweatpants, sweat suits, wind suits, warm-up suits, rain suits, pull-over jackets, pullovers, outerwear, shorts.”) Lord Neuberger MR further stated that consideration of whether an item is on-field or off-field should be viewed from a hypothetical position rather than the subjective intentions of an actual buyer / supplier [18].

These products were then marketed through a number of North American stores. In Clause 9 of their Licensing Agreement with Hudson Bay, Umbro UK defined their “Distribution Channels” as falling into 7 broad sub-headings:

  • Sporting goods chains (Dick’s Sporting Goods)
  • Department stores (Macy’s and Dillards)
  • Mid-tier department stores (although the clause listed several stores they not named in the judgment)
  • Apparel speciality stores (these stores were similarly not named)
  • The Ad speciality market who sold promotional products via corporate catalogues (S&S, Broder Brothers, Heritage Imprints, Staton and Virginia Tees)
  • Soccer speciality retail (no stores were listed, just ‘as directed by the Licensor’)
  • Close-out stores (four stores were listed with restrictions limiting annual sales to 30% of the total)

Umbro UK licensed through Umbro Corp inc, the rights to manufacture on-field wear to Dick’s Sporting Goods, HBC had the rights to off-field wear, while Umbro UK kept the rights to teamwear for itself. What the Court(s) had to decide was whether HBC, Umbro and Dick’s breached the terms of their respective contractual agreements. 

The first claim arose because Umbro UK had authorised Dick’s to sell some goods (in particular a number of t-shirts and tank-tops) which were not specifically intended for on-field in breach of their exclusive arrangement with HBC. Although this breach was accepted by all parties, ultimately the only remedy for HBC was in damages for breach of contract as Dick’s were not joined as a party to the case.

The second claim arose through Hudson Bay’s creation of a pocket-less ‘soccer basics’ and matching tracksuit range sold through S&S catalogues [20]. While it was widely accepted that this clothing was suitable for a myriad of athletic and leisure purposes [28], both Mark Herbert QC and Lord Neuberger MR criticised the lack of pockets on this clothing range and argued that this omission was absolutely critical to the case. Indeed, they suggested that the essence of an off-field product was that it should have “at least one pocket – for money, keys, mobile phone, or an iPod, for example” [30]. Hudson Bay didn’t help themselves in this regard when even their own marketing specialist (Jock Thompson) gave witness testimony that “adding pockets converted on-field garments into off-field garments, and that removing pockets converted garments the other way” [28]. The Court also heard testimony that FIFA forbade any on-field products to include pockets [30]. Given these conclusions, it was highly likely that these products would be considered to be “on-field” wear in contravention of HBC’s licensing agreement [31].

Similarly, although the Court accepted that tracksuits would generally be characterised as off-field wear, the fact that tracksuits were marketed alongside the shorts and t-shirts in both the S&S catalogue [33] and in Dick’s Sporting Goods [34] was enough to transfer the products into on-field wear, thereby absolving Dick’s Sporting Goods from any liability for breach of contract, and creating liability for Hudson Bay for their sales to S&S. The multi-purpose and multi-environment nature of the tracksuit was not therefore the important part, but rather in what context it was sold. The same tracksuit could therefore be both on-field and off-field depending on how it was marketed. This seems a particularly ambiguous way to conduct a commercial licensing agreement with two direct competitors, but perhaps grey is this season’s fashionable colour????!

Hudson Bay’s defence to this claim, that they were given the authority to market this clothing by Miss Barbara Jackson (appointed President of Umbro US in 2006) was however rejected [37]. At first glance this might seem surprising given that there was no doubt that Miss Jackson had both orally approved the removal of pockets from the “soccer basics collection” marketed in S&S [41] and signed a variation authorising this range [57], on closer reflection though, it is clear that Hudson Bay could not rely on either of these approvals [42] as they knew, or should have known that neither could not have bound Umbro UK.

While the Court held (obiter) that a company like Umbro UK could be bound “(through an implied term, implied agency, or, possibly, on some other basis) by a consent given by Miss Jackson” [50], none of these applied in this case as Hudson Bay could not have reasonably have believed that this approval would have been binding on Umbro UK given the previous detailed contractual history between the companies [59]. Makes you wonder what exactly Miss Jackson’s role was then? The devil is most firmly in the detail and in this instance the detail said that only Umbro UK could grant approval of designs.

For the same reasons, an estoppel argument also failed, as did a suggestion that Umbro UK had not enforced its prohibition quickly enough [60].  Even if the Court was wrong though and a waiver (license) was valid, this did not help HBC as such a conclusion could only defeat a damages claim for past marketing of the pocket-less ‘soccer basics’ clothing rather than authorise future sales of this range [62] which is what HBC wanted.

Perhaps unsurprisingly, Umbro UK’s decision not to process any further sales orders from HBC during this litigation (which formed the basis of HBC’s third claim) also failed as this was a reasonable commercial decision for Umbro to have taken [66], although Umbro were in breach for unreasonably failing to consider new clothing designs from HBC during the same period.

On a slightly lighter note, the pun of the case must go to Lord Neuberger at paragraph [32] when in discussing whether the provision of larger size products (XL, XXL and XXXL) was inconsistent with an on-field collection stated that: “we were not told what size waist would be accommodated by XXXL, and, anyway, people with ample waists are not excluded from playing soccer. Accordingly, I would not accord that point any weight [emphasis added].” 

Behind the scenes at Umbro Football Design (Youtube):

Hudson Bay advert from the Vancouver Winter Olympics (Youtube):

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