RFU Tackles Ticket Websites

In Millar v Jackson (1976) Lord Denning MR famously pronounced on the social utility of village cricket. He held that cricket is so integral to English country life that the right to play cricket and the associated right to hit sixes into neighbouring properties, “takes precedence over the right of the newcomer to sit in his garden undisturbed.” In the recent case of RFU v Viagogo [1012] UKSC 55 it was the social utility of rugby that was in issue. Tom Hickman considers the case.

Things have moved on considerably since the poetic judgments of Lord Denning with their sentimental appeals to values embedded in English common law. The Viagogo case was argued on the Formica-surfaces of EU Directives and the sterile reasoning of the ECJ. Yet ultimately, like Millar v Jackson before it, it was the social value of English sport which proved all-important and which won the day. More significantly, the judgment of the Supreme Court opens up a new front in the war against ticket touts and blazes a trail for other sports to follow.

The Rugby Football Union has a policy of distributing tickets for international matches through clubs and schools as a means of enhancing the sport of rugby. The terms and conditions of the tickets prohibit sale above face value unless to approved hospitality providers. Despite this, tickets are regularly sold in breach of the contract terms and are available for sale through touts and on ticket re-sale websites.

The evidence was to the effect that the RFU had in the past sought to enforce its contractual terms through injunctions against touts and by disciplining offending clubs. With increasing numbers of tickets being sold online the RFU brought a Norwich Pharmacal application against one of the market leaders-Viagogo--seeking disclosure of the names of those persons and entities that were selling tickets on its site. Viagogo resisted on the ground that this would involve the disclosure of personal data contrary to the protection of persons’ “right to privacy with respect to the processing of personal data” under the Data Protection Directive and the EU Charter of Rights and Freedoms.

The issue that made its way up to the Supreme Court was whether disclosure was proportionate to the aim sought to be achieved. If it was it would be consistent with EU law but not otherwise. Viagogo argued that in assessing proportionality it was necessary to focus on each individual’s circumstances and ask whether the disclosure of information about that person was justified by the particular benefit to the RFU from such disclosure, which taken on a case-by-case benefit would be relatively slight.

The argument claimed some provenance in case law of the ECJ but was hardly likely to succeed in the face of the cherished status of rugby as a national pastime. Lord Kerr, with whom all of their Lordships agreed, held that the court was entitled to have regard to the “overall aim of the RFU in seeking the information” which included not only pursuing offenders and seeking injunctions but an “element of active discouragement to others who might in the future contemplate the flouting of rules which the RFU seeks to enforce”.

This reasoning was expressly underpinned by the Court’s recognition of the social utility of the sport of rugby and its approval of the ticketing policy of the RFU.

Although Lord Kerr stated that there might be cases where the interests of an individual’s right to privacy could trump the interests of the RFU, it is difficult to envisage how such circumstances could arise. The judgment opens the door for other sporting bodies to pursue ticket resale websites.

More controversially, the case also potentially represents a further development of the Norwich Pharmacal jurisdiction. That jurisdiction was developed by the courts not as an end in itself but as a tool for enabling private rights to be enforced in follow-on civil proceedings. The courts gradually extended the jurisdiction into other areas of law in recognition of the fact that follow-on action might take the form of disciplinary action rather than claims in contract or tort. On one view of its judgment the Supreme Court has taken this a step further by recognising the fact that Norwich Pharmacal proceedings themselves have deterrent value in exposing wrongdoing.

A further aspect of the case which is deserving of comment is the nature of the wrongdoing in question. There is no difficulty with the argument that resale of tickets for profit constitutes a breach of contract. But this argument only applies to the first holder of the ticket. The RFU also relied, successfully, on the argument that persons in possession of such tickets who attended the match would be trespassers. The RFU pointed to the fact that the ticket terms stated that they would be “null and void” if sold in breach of their terms and conditions. They also provided that, “The RFU shall be entitled to refuse to admit the holder of an unlawful ticket to the Stadium for the event … and may eject such holder from the Stadium even after admission.”

Mr Justice Tugendhat at first instance was dismissive of Viagogo’s argument that no trespass would arise. He reasoned that the role of staff at the entrance gate is to, “verify that people attempting to enter the premises already have permission to do so.” He said that it is “not their role to give permission to a person who does not already have it.” The argument fared no better in the Court of Appeal.

Whilst the point is certainly arguable (which was all that the RFU needed to show) the reasoning is open to question. Whatever might be the intended “role” of gate attendants the fact is that individuals who present tickets, whether technically ‘valid’ or ‘invalid’, are permitted to enter the stadium. They are not in the same position as a person who vaults a wall. It is undoubtedly the case that those with invalid tickets have no contractual right to enter or remain in the stadium, but it by no means follows that they have no licence to remain until they are asked to leave. Indeed, this is reflected in the terms of the tickets themselves which provide that the RFU is “entitled” to refuse a person entry if they do not have a valid ticket and “may” eject a person who has been admitted. It would be rather peculiar, for instance, if persons who had invalid tickets were owed lesser duties under the Occupiers’ Liability Acts, as they would be if they were trespassers, particularly as circumstances could arise in which visitors did not realise that their ticket was invalid. But these finer points of sports law remain open for debate on another day.