Sportradar AG v Football DataCo: The Intersection of Live Sports Betting and Competition Law
16 November 2021
The current dispute between Sportradar AG (“Sportradar”) and Football DataCo Limited (“DataCo”), scheduled to be heard by the Competition Appeal Tribunal (the “CAT”) in October 2022, sheds further light on the legal difficulties that continue to arise out of the increasingly popular live sports betting market. Sporting bodies and related businesses continue to find new ways to commercialise in-play activities; this fact, combined with advances in mobile technology, has turned the live sports betting industry into a juggernaut worth almost £2.4 billion per year. Lucrative contracts between sporting bodies and data companies (on whose data the betting industry relies) are a central feature of the industry. It is one such contract which provides the basis of the dispute in the Sportradar case.
Sportradar provides sports data services (the “Data Services”) to bookmakers, including live data about football matches. Several competitors, including Genius Sports (“Genius”), also provide Data Services to bookmakers. Bookmakers use the Data Services to offer live betting whilst the match takes place. For example, punters can place bets on which team will score next, which player will score a goal, how many yellow cards there will be, how many offside calls there will be and so on ad infinitum.
Football League Limited and Football Association Premier League Limited (better known as the “EFL” and the “Premier League” respectively) organise professional football matches in England. The EFL and Premier League require their clubs to implement regulations (the “Ground Regulations”) displayed at their stadia setting out the terms of entry, including restrictions on recording or transmitting of live data without a licence. Clubs are also encouraged to impose ticketing conditions that specify that ticketholders are prohibited from collecting or disseminating any live data unless for personal use.
In 2001, the EFL and Premier League incorporated DataCo (which they still jointly own) to act as a central organiser and point of contact in respect of all data generated by and during the football matches they organise. Since then, the EFL and Premier League have granted DataCo the right to attend all matches and to appoint or sub-licence a third party to record, aggregate and distribute the data from those matches. In May 2019, DataCo granted an exclusive five-year contract to Genius to do just that.
Sportradar’s claim in the CAT is that the exclusive five-year contract between DataCo and Genius is unlawful and void as it infringes competition laws. Sportradar also claims that DataCo has abused its dominant position. Moreover, Sportradar asserts that the Ground Regulations are not a justification for the exclusive licence, in particular claiming that reliance on any restrictions contained in such terms and conditions of entry in order to give effect to an unlawful agreement is, in turn, unlawful. They argue that the grant by DataCo to Genius of an exclusive five-year licence to collect, store, licence and supply live matchday data, taken with the effect of the Ground Regulations, has the object and/or appreciable effect of restricting competition in breach of competition law by ensuring that Genius is in practice shielded from competition in its supply of live matchday data.
Aside from the competition law claim, Sportradar also disputes the lawfulness of the Ground Regulations from a confidentiality standpoint. While it accepts that the live data is commercially valuable, it argues 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 information through the use of contractual terms. However, the CAT, as a specialist competition law tribunal, does not have jurisdiction to hear this part of the claim. DataCo applied to have the entire case transferred to the high court, but the Tribunal rejected DataCo’s application on the grounds that “resolution of the competition law argument should come before addressing any disputed issues on the scope and content of private law rights”. Therefore, this argument may rear its head once again following the conclusion of the CAT proceedings.
DataCo and Genius’ Response
In response, DataCo and Genius argue that their agreement has neither an anti-competitive object nor effect. They assert that the Ground Regulations, which restrict Sportradar’s ability to collect live matchday data, operate entirely independently of the DataCo-Genius contract. They also assert that entering into the agreement does not constitute an abuse for the purposes of competition law or, if it is an abuse, that such an abuse is objectively justified.
DataCo and Genius further claim that Sportradar has breached the Ground Regulations arranging for its scouts to attend EFL and Premier League matches where those scouts (‘surreptitiously’, to use DataCo’s phrase) collected and distributed live match data for the purposes of supplying bookmakers with the Data Services. According to DataCo, some 335 scouts engaged by Sportradar were ejected from EFL and Premier League stadia in the 2018/19 season (representing at least 272 matches). Again, the CAT does not have jurisdiction to hear this part of the claim; it is worth keeping a watching brief to see whether this element of the claim is revived following the CAT decision.
While this case is still some way from a decision, the arguments involved pose material questions for providers of Data Services, sporting bodies and bookmakers as they attempt to monetise and exploit live data collected at sports stadia. In particular, should the CAT find in favour of DataCo and Genius, this will cement the ability of the de facto owners of live sports data to restrict access to downstream competitors, or at least limit the latter’s ability to provide data to bookmakers. While companies such as Sportradar are perfectly able to collect and collate data from television or internet coverage of sports fixtures, this is not an adequate substitution for data collected live at the grounds. Not all games are televised or streamed; the commercial value of data collected in this way is limited by the time-delay automatically incorporated into all such broadcasts. Live sports betting is contingent on bookmakers having up-to-the-second information. Control of such information by one company is no doubt a cause for concern in the industry. We await the decision of the CAT with interest.
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This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.