Mclroy & Nike do not see eye to eye with Oakley

Posted on January 21, 2013 by FrontRow Legal

Apparel-maker Oakley has sued golfer Rory McIlroy and Nike, saying they breached the world’s top-ranked golfer’s existing contract with Oakley when he recently signed a new deal with Nike.

According to a lawsuit filed Monday in federal court in Santa Ana, Calif., Oakley tried to use its “right of first refusal” to match the Nike offer, but McIlroy and his agent, Conor Ridge, ignored the counteroffer, thereby breaching the Oakley-McIlroy contract.

Oakley claims in its lawsuit that its contractual rights for McIlroy’s endorsements of its eyewear and performance apparel would be 30 percent of the Nike package. If the reports in European golf publications of a $200 million deal with Nike are accurate, then Oakley offered about $60 million to continue its deal with McIlroy. No one involved in the dispute will confirm the magnitude of the Nike offer, and it is described in the court papers only as an offer of “$_M.”

According to Oakley, the damage that has resulted from McIlroy’s refusal to renew with Oakley is “irreparable” and entitles Oakley to an injunction that would stop Nike and McIlroy from concluding or implementing their contract. Oakley is also claiming money damages but does not specify any amount and asserts that it has spent $300,000 on a photo shoot for the products McIlroy would have endorsed in 2013.

McIlroy’s deal with Oakley includes what is known as a right of first refusal, a contract clause that allowed Oakley to match any offer that included payments to McIlroy for glasses and clothing. If Oakley wanted to match what Nike offered, its deal would continue into 2013 instead of expiring Dec. 31.

The key to any resolution of the dispute is in a string of emails between Oakley and Ridge that began in September. Late on Sept. 29, a Saturday, as negotiations for a renewal of the Oakley deal seemed to be falling apart, a sports marketing executive at Oakley named Pat McIlvain sent an email to Ridge that said: “Understood. We are out of the mix. No contract for 2013. Pat Mac.”

The late-night “out of the mix” email is clearly the basis for Friday’s statement from McIlroy’s management company in Dublin to ESPN.com, asserting that “McIlroy has fulfilled all of his obligations to Oakley, and the claims in the lawsuit are entirely baseless.”

McIlroy and Nike will assert in court that McIlvain’s email was a waiver of Oakley’s contractual rights to renew with McIlroy.

But McIlroy’s team of agents and lawyers, after the supposed waiver, then continued to bargain with Oakley and gave it the dollar amounts that Oakley would be required to match. It was not until Oct. 23 that McIlroy’s attorney finally told Oakley that the golfer “would not be continuing his relationship with Oakley beyond Dec. 31″ and that they “would not engage in any further correspondence on the matter of the right of first refusal.”

As McIlroy ascended to the world’s top ranking, his endorsement deals began to expire, giving him a chance to put together the most lucrative package in the history of the sport.

With Titleist and Footjoy, McIlroy’s previous sponsors, fading out of the picture, Nike entered with an offer for head-to-toe coverage that is reported to be worth more than $200 million. It was to include everything — equipment, footwear, performance apparel, and what sports marketing folks like to call the “front of the hat.”

Posted in Media, Arts & Entertainment, Players, Coaches & Managers | Tagged , | Leave a comment

Oprah Winfrey interview, the end of the road for Lance Armstrong?

Posted on January 16, 2013 by FrontRow Legal

Like all those who are accustomed to winning, the expression ‘preparation is the key to success’ will be only too familiar to Lance Armstrong. In all his years of competing however, never has this been truer than the preparation which has unquestionably been undertaken by his lawyers in advance of his forthcoming interview with Oprah Winfrey, due to be aired on Thursday 17 January. 

It has been widely reported that the seven-time Tour de France winner will finally admit to taking performance-enhancing drugs throughout the course of his illustrious career, despite previously vehemently denying this. Armstrong was famously stripped of all the titles which he had won since August 1998 following a damning report and subsequent lifetime ban from the US Anti-Doping Authority, which was later backed by cycling’s ruling body the Union Cycliste Internationale. Since confirming that he would not be appealing this decision to the Court of Arbitration for Sport, Armstrong has been relatively quiet on this issue, but it now seems that he is hoping to use the interview as an opportunity to come clean and move forward with his life. It will not have escaped the attention of his legal team however, that such an admission has the potential to set in force a set of legal reactions which will far outweigh any possible benefits that will come as a result of having a clean slate.

Oprah has stated that she entered the interview with 121 questions, the majority of which she managed to put to Armstrong. It will be interesting to see if these contained any of the 10 which were placed in an advert in the Chicago Tribune, Oprah’s local paper, by The Sunday Times. The London based paper have announced that they plan to commence proceedings against Armstrong in an attempt to recover more than $1,500,000 following a settlement which was reached in relation to a civil claim for libel in 2006, this concerned an article in the newspaper which re-printed allegations of doping by the cyclist. But this is just the tip of the ice-berg for Armstrong, a fact which has undoubtedly been discussed in great detail by his team of legal advisors. Any admittance of guilt would certainly be used to add weight to the civil claims which have already been issued against the cyclist from those such as South Australia State, who are hoping to recover some of the ‘several millions of dollars’ paid to Armstrong in appearance fees to participate in the 2009, 2010 and 2011 Tour Down Under, and SCA Promotions, a Dallas based insurance company who are claiming $11,000,000 in prize money, which they paid as a result of the cyclist winning the Tour de France.

However, much like the majority of races won by Armstrong there are many more twists and turns ahead.  In the wake of the USADA report and lifetime ban major sponsors such as Nike and Anheuser-Busch confirmed that they would be withdrawing sponsorship and endorsement deals potentially worth millions of dollars. An admittance of guilt would undoubtedly trigger a wave of civil claims from these former sponsors, in an attempt to remedy the damage caused to the reputation of their brands. Considering the fact that Armstrong was at the very height of cycling for a significant amount of time, it is not being dramatic to suggest that the total of these claims may run into tens of millions of dollars. Additionally, former teammate Floyd Landis has already filed a whistle-blower lawsuit alleging fraud against the US Postal Service during the years that the agency sponsored the cyclist’s teams. It is rumoured that the US Department of Justice is also considering whether to join this action, a move that will certainly add a large amount of legal weight behind the already substantial actions against the former champion and those closely linked with him.

Finally, it must not be forgotten that Armstrong has frequently called into question the integrity and honesty of his many accusers over the years. Any admission of guilt would arguably give rise to several defamation claims from these individuals in order to remedy any damage caused to their reputation. There are even rumours that an admission may see claims for fraud made by donors to the Livestrong Foundation, the council charity which Armstrong founded and stepped down as chairman from following the events of last year. Oh, and there is also the minor issue that Armstrong testified under oath in 2005 that he had never used performance-enhancing drugs, however he will be hoping that the fact we are now outside the 5 year limitation period will keep him of the US court system and facing a potential prison sentence of up to 5 years.

In light of the potential ramifications that an admission of guilt would bring it must be questioned what Armstrong hopes to achieve from his interview with Oprah. Many have suggested that he may be hoping to make some headway in attempting to remove the USADA lifetime ban, which must be applied by any sport which follows the World Anti-Doping Agency code, so that he can once again compete in competitive sport, albeit Triathlon and not purely cycling. Others have suggested that he is simply hoping to lift some of the weight from his shoulders, whereas some believe that he still harbours ambitions of running for political office in Texas, and feels that this will not be possible without a very public apology. Although the reasons behind the decision to finally admit to what many have alleged over the years remain to be seen, it will be interesting to see whether he faces an uphill climb ahead, or whether this may be his final crash. One thing that is certain however is that of all those watching the interview on Thursday, there will be many lawyers around the world paying more attention than most.

Alan Darfi

Posted in Media, Arts & Entertainment, Regulatory & Disciplinary | Tagged , , , , | Leave a comment

Limits on tribunal awards: Are you aware the Law is changing?

Posted on December 17, 2012 by FrontRow Legal

From 1 February 2013, new laws will come into force under the Employment Rights (Increase of Limits) Order 2012 (SI 2012/3007). This will see the limits on tribunal awards increase. The maximum compensatory award for unfair dismissal will rise from £72,300 to £74,200 and the maximum amount of a week’s pay, used to calculate statutory redundancy pay (among other things), will rise from £430 to £450.

A full copy of the Employment Rights (Increase of Limits) Order 2012 (SI 2012/3007) can be found at:

http://www.legislation.gov.uk/uksi/2012/3007/contents/made

Feel free to contact us at FrontRow Legal for more information.

Posted in Uncategorized | Leave a comment

Ambush Marketing – Part Three

Posted on August 7, 2012 by FrontRow Legal

In the last blog on ambush marketing I dealt in outline with the forms ambush marketing can take and touched on the range of devices that can be used to prevent it, and the way those devices have been specifically supplemented by legislation. In this blog I will touch in outline upon some of the ways intellectual property law can assist in combatting ambush marketing, and some of the ways in which the protection it affords might not be enough.

Let’s take an example. Say that we are the organisers of a major event, The FrontRow Legal Pie Eating World Championship. The first thing we might seek to do to avoid ambushing by association is register a trade mark for the title of the event and the event logo, on the basis that if we control that trade mark we can seek to prevent unauthorised use of the marks we have registered by organisations that have not helped to sponsor the event.

The applications we would make would probably be quite numerous. A trade mark can be registered for anything that can be represented graphically, and includes words, graphic words such as logos, mascot designs, straplines and so forth. Some of our marks therefore can be registered quite straightforwardly provided we have done the work on clearance – in other words, checking that there are no other owners’ marks in use or on the register that would be the same or similar to our mark for a similar range of goods and services. We would register those marks for the full range of goods and services to be provided as part of the event or directly in association with the event, by ourselves or our event partners. Each different mark would require a separate registration in the appropriate territorial registries – the UK, the European Community and further afield.

The first problem we may encounter relates to the event title, and the limited ability we have to register a trade mark for something as descriptive as “Pie Eating World Championship” (FrontRow is already a trade mark in its own right). A trade mark will not be granted where the mark applied for is not distinctive enough to differentiate the goods and/or services of one undertaking from those of another, and if all a mark does is describe what the product or service is, unless the mark has become distinctive because of the use made of it by the person applying before the application is made, it will not be distinctive enough to be registered.

Say we devise a name that is distinctive enough to be registered (call it “Lord of the Pies” – humour me here) and a funky logo. The logo will be a copyright work as a graphic work (although the event title will not qualify for copyright protection as a literary work), so we can prevent people copying and distributing copies of that logo or putting it on merchandise. The trade mark rights in the logo and other marks (including the event title) will only enable us to prevent some but not all unauthorised use of the mark.

We can prevent the use of the identical mark on or in relation to identical goods and services for those we have the mark registered for, but only where that affects the function of the trade mark, including the function it has of guaranteeing to the public the origin of the goods and services with us or in a way associated with us as the owner of the mark. A number of complex legal authorities beckon.

We can prevent the use of a similar mark on or in relation to identical goods and services, or a similar mark on or in relation to identical or similar goods and services, where such use in either case creates a likelihood of confusion with our goods and services, or confusion as to the origin of the offending goods and services as originating from us or from an association with us. We can also prevent (if we are considered to be a mark with a reputation) the use of an identical or similar mark on or in relation to any goods or services where that use takes unfair advantage of that reputation or is detrimental to our mark’s distinctive character or repute. A lot of tests to get through, a lot of legal authorities to consider.

Not every reference to or use of the mark therefore will be an infringement of our rights in the mark as trade mark owner, nor should it. A reference in the media to the event is not an infringement. A reference in advertising will depend very much on the nature and the context of the reference made. Our trade mark registration is a crucially important step and will have a major effect – but it won’t do everything we might want it to do to prevent use of the event name and reference to it. References can be indirect so that there is no “identical or similar mark” used; uses can be made of the mark that do not affect its function as a trade mark.

We can use our trade mark rights for a number of effective purposes and would be fools to do without them. But in order to protect a major event and its sponsors from ambush marketing we would in an ideal world need more rights we can enforce beyond those relating to trade mark infringement or copyright infringement.

In the next blog I will deal with how the London Olympic Games and Paralympic Games Act 2006 adds further rights over and above trade mark rights for the benefit of the organisers of the London Olympics.

Posted in Events, Media, Arts & Entertainment, Regulatory & Disciplinary | Leave a comment

Social Media and the Olympics – tweet carefully or fall foul

Posted on July 31, 2012 by FrontRow Legal

Time and time again, despite all of the warnings and guidance given to athletes and professionals alike, we still see them using Twitter* as an open message board to vent their opinions to the entire world without having any consideration of their audience. What they haven’t yet grasped is the fact that a tweet is equivalent to standing on a box and shouting your personal opinions (whether politically correct or not) to the entire world for anyone to hear. In principle there is no harm in doing this, what makes a simple tweet dangerous is when your own opinion is interpreted as being offensive to any person, race, age, religion, culture etc.. or when the intention of the tweet is malicious in nature.

You would have thought that after all the media press surrounding the distasteful racial tweet posted by student Liam Stacey about the Bolton Wanderer player Fabrice Muamba earlier in March this year which resulted in him being jailed for 56 days and the Accountant Paul Chambers ‘twitter joke’ about blowing up Robin Hood Airport (to name a few) which not only ended up going all the way to the High Court but also cost Chambers to lose his job and integrity, would have hit home especially at the epic times ahead of athletes.

However, despite all of the media coverage, we saw towards the end of last week, the swift decision of the Greek Olympic Committee (‘GOC’) to expel the Greek triple jumper Voula Papachristou (a favorite to win gold) from the Greek team in respect of a racial tweet posted by her. Although Papachristou deleted the tweet and immediately apologised, the GOC stated her comments were ‘contrary to the values and ideas of the Olympic movement’. Isidoris Kouvelos, the Head of Greece’s Olympic mission made it clear that all Greek athletes would now be banned from ‘expressing personal opinions’ on Twitter until the games were over. Whilst Papachristou and her close ones may see her expulsion as a harsh decision many others will disagree including her many twitter followers.

Of course it’s not always athletes or professionals who cause a stir with tweeting. Only today it’s been reported that a 17 year old man has been arrested on suspicion of malicious tweets sent to Olympic diver Tom Daley accusing him of letting down his late father by missing out on a medal. The investigation is ongoing.

What we should remember is how fortunate we are in the times we live in to be able to communicate directly with athletes themselves; in real time I might add, giving the world an instant insight into their lives, characters, their thoughts and interaction with their supporters which would not have been possible in the past.

The sanctions as we have seen can range from a fine to a custodial sentence and even the loss of opportunity to participate in the London Olympics. Surely it makes sense for all to stop and think before tweeting?

 

 

 

 

 

*For the Twitter novices out there, Twitter is an online social networking service and micro blogging service that enables its users to send and read text based messages, known as ‘tweets’.

Posted in Media, Arts & Entertainment, Regulatory & Disciplinary | Tagged , , , , | Leave a comment

World Anti-Doping Agency (WADA) and the Olympics – Part One

Posted on July 26, 2012 by FrontRow Legal

Two days before the London Olympics officially start, it has been reported that nine, yes that’s correct a staggering nine track and field athletes have been suspended for doping offences.

Given that it is such a current topic, we have explored in this blog the purpose of WADA and the impact it has on the participating athletes.

So you may be thinking who are the WADA?

Whilst the acronym speaks for itself, the WADA mission is to lead a collaborative worldwide campaign for doping-free sport. WADA was founded on the principles that athletes have a fundamental right to participate in doping-free sport and that doping endangers athlete health and the integrity of sport.

It was established in 1999 and its key activities include scientific research, education development of anti-doping capacities and monitoring the World Anti-Doping Code (Code).

The Code came in force in 2004 and is the core document that provides a framework for harmonized anti-doping policies, rules and regulations within sport organizations and public authorities.  See here for further information on WADA.

So how does WADA fit with the Olympics?

WADA aims to ensure that athletes benefit from the same anti-doping protocols and protections, no matter the nationality, the sport, or the country where tested. Their goal is safe and fair procedures.

A ‘Prohibited List’ is provided by WADA each year setting out substances and methods prohibited in and out of competition and in particular sport. There is one exception to this under ‘Therapeutic Use Exemption’ which allows an athlete to use prohibited substances for medical reasons.

Therefore athlete testing or doping control is essential in protecting doping-free sport.

This year being no exception, the officials have introduced two new procedures making the London Olympic Games the ‘most tested’ ever. It is for this reason that six of the nine athletes have been suspended. They had been caught through the new test ‘athlete biological passport scheme’ (which measures changes in an athlete’s blood profile). The remaining three positive doping results were retested samples from last year’s world championships at Daegu, South Korea. Their bans vary from two to four years.

Athlete samples can be retested up to eight years after an Olympics ends which can lead to retroactive sanctions. That in itself is a massive deterrent to any athlete considering cheating.

It is obvious that the impact for any athlete who fails a test at the London Olympics or any Olympics will be severe not only in terms of the sanctions but their dreams and dignity. The head of the WADA reinforced this today by warning that British athletes who fail a drug test at the London Olympics face becoming ‘outcasts’ in their own country. See here for more information.

In future blogs we will look more in detail into specific athlete’s suspensions and the recourse available to them to challenge the ban.

Posted in Uncategorized | Leave a comment

Ambush Marketing – Part Two

Posted on July 26, 2012 by FrontRow Legal

In the first blog in this series I looked at some of the considerations surrounding ambush marketing, where one company has paid a large sum to be the official sponsor of a sports event and another, rival, company seeks to “ambush” those rights by generating media publicity associating it with the event without paying the sponsorship costs. In particular, I referenced Nike, a major world brand that consistently has indulged in such behaviour whilst remaining a step ahead of its rivals and the event organisers – and the lawyers. Nike goes to a lot of lengths to ensure it doesn’t break the law in its ambush marketing, having apparently made the decision that it fits better with Nike’s brand to be the clever outsider than the “official” insider for events such as the Olympics.

So, what constitutes ambush marketing? The first point to make is that this is a marketing expression, not a legal term of art. There is a broad range of activities that could be called ambush marketing and some are legal and some are not. In some ways, it’s an arms race. On one side you have event organisers and their lawyers (and host governments) working to ensure so far as possible that anything that disrupts the rights of the official sponsors or otherwise uses an association with the event without paying for it is against the law. On the other there are any number of ingenious marketers and their lawyers looking for loopholes and opportunities.

The starting point for the London Olympics is the London Olympic Games and Paralympic Games Act 2006, passed of course with specific reference to the current games, which creates a raft of specific rights of action to protect the London Olympics from unauthorised exploitation. The passing of that Act makes my first point for me: that the general law only offers a partial solution to the problems that can arise. Before explaining that Act in a later blog in this series it may be useful to put in context some of the considerations that led to its being passed.

In legal terms, there is no criminal offence or cause of action called ambush marketing. The tactics those seeking to prevent ambush marketing must use come from a variety of sources: for example, intellectual property law, commercial contracts, ticketing terms and conditions, use of existing criminal laws and bye-laws relating to casual and street trading, laws against misleading advertisements and so forth. In addition a number of practical steps such as buying up outdoor advertising space around venues and ensuring adequate policing and stewarding in and around venues are important. The result is a patchwork solution made up of a number of disparate legal rights and obligations, which ambush marketers get ever more expert at navigating around. Some examples are here.

Ambush marketing could be categorised as arising in two principal ways. The first is by way of creating an association with the event (looking like a sponsor, leveraging off the event in advertising, creating unauthorised merchandising items, branding goods or services with event logos, names and properties, and so forth). The second is by way of intrusion: in other words, placing advertising or promotional materials and activity at the event or near the event in such a way that television and media coverage or spectator attention is turned on the ambusher rather than the event sponsor. The possibilities are extensive, to say the least, as are the ways the event organiser can combat them. In the next blog I will deal with some of the legal issues raised by the first kind of ambush marketing – by association.

Posted in Uncategorized | Leave a comment

Ambush Marketing – Part One

Posted on July 25, 2012 by FrontRow Legal

As the Olympic Games is now under way, with women’s football taking place even before the official opening ceremony, it seemed like a useful time to consider the problem that the event organisers face from ambush marketing, and how the media are already reporting some of the stories that are emerging.

There have been a number of stories already about what can and can’t be taken into Olympic venues. Lord Coe has had to field questions about whether  a Pepsi T shirt could be worn by a spectator, and his attempts to give an answer have led to confusion and considerable media coverage – no doubt to the delight of Pepsi and the chagrin of the official sponsor Coca Cola. See here.

From a media point of view, this is all good, knockabout “the law is an ass” stuff. The incidental absurdities of the efforts venue operators have to go to in order to protect their rights always raises a number of journalistic hackles. However, there are serious issues at stake.

Everybody understands that for major sporting events to take place and to enjoy the benefit of world class staging there have to be commercial sponsors. There is enough unease already about the cost of hosting the Olympics in austerity times: without input from sponsors who pay large sums of money for their association with the Games the costs would be much higher, and the nature and quality of the events that result could be compromised.

The nature of the sponsorship packages the major sponsors buy is such that each sponsor is granted exclusivity within its market sector, so that it can be assured that its rivals don’t enjoy similar rights. Sponsorship agreements are lengthy and complex documents that include numerous provisions aimed at securing that exclusivity for the sponsor, and ensuring that the event organiser takes adequate steps against ambush marketing by rivals. The rivals in question are those who seek using ambush marketing techniques to secure the benefit of association with the event without having paid for it. Often the ingenious and outrageous steps taken by ambush marketers generate more coverage than the more sober “corporate” style of advertising the official sponsors must stick to under the terms of their contract. Nobody wants to have advantage taken of them and appear “square” at the same time.

The sums required to pay for the sponsorship packages for a major event such as the Olympic Games and the cost of supporting and adequately exploiting the accompanying rights packages mean that the kind of company that becomes a sponsor is always going to be a major global player in its field. Such a company and brand may therefore become the target for some resentment from many who see the involvement of mega-rich corporations as contradictory to the Olympic spirit. People viewing the sponsors in that way may see ambush marketing as a bit of harmless fun or even as a blow struck against the multinationals.

Ambush marketing is a term invented by a marketing guru called Jerry Welsh in the early 1990s, when this was a comparatively new phenomenon. I would suggest that the term has become out of date. How is it “ambush” marketing when everyone knows it’s going to happen, major multinational corporations themselves indulge in it, and often publicise in advance what they are going to do?

A recent news story has suggested that Nike – hardly the plucky underdog operating on a shoestring – is planning what has been described as an “ambush” campaign. See here . It seems that Nike have ensured that there will be nothing illegal in their campaign – but that, as they did at Atlanta in 1996 (when they handed out banners to spectators, put billboards around the city and set up a Nike centre near to the stadium) they will use considerable ingenuity to gain not only an outlet for advertising but also endless media coverage surrounding and related to the Games without being an official sponsor.

So, harmless fun, as many saw was the case with the women in orange dresses advertising Bavaria beer at the World Cup (see here ), or unfair opportunism that puts the value of crucial sponsorship agreements at risk?

In some further blogs I’ll be looking at ambush marketing in further detail and some of the main legal and commercial arguments it provokes.

Posted in Media, Arts & Entertainment, Regulatory & Disciplinary, Sports Business | Leave a comment

The complexities involving the two players from Glasgow Rangers, Steven Naismith and Steven Whittaker

Posted on June 25, 2012 by FrontRow Legal

The turmoil at Glasgow Rangers continues. We have seen over the weekend that two high profile first team players, Steven Naismith and Steven Whittaker have terminated their contracts with Glasgow Rangers.

Both players are in their peak of their career and would probably be valued in the marketplace at somewhere in the region of £3 million.

So what is the legal assessment and analysis?

The consortium led by Charles Green recently completed the acquisition from the liquidator of Glasgow Rangers assets. It is almost inevitable that the sale purchase agreement would include the acquisition of the players many of whom will have a good market value.

So what has happened here?

Both Naismith and Whittaker undoubtedly will have been approached by other clubs with it being reported that several premiership clubs would like to recruit these two players for the start of the new season. If these players are “free agents” then they become highly marketable and will be able to negotiate very good contracts. So instead of a transfer fee being paid, the acquiring club will be able to pay more to the players (and the agents) both in terms of remuneration and commissions.

The players have relied upon legislation known as TUPE.

What is TUPE?

TUPE is an acronym for the Transfer of Undertakings (Protection of Employment) Regulations. The Regulations were first passed in 1981 but overhauled in 2006. TUPE is a significant and often tricky piece of legislation adopted by the UK in order to implement the European Acquired Rights Directive.

The purpose of TUPE is to protect employees if the business in which they are employed changes hands. Its effect is to move employees and any liabilities associated with them from the old employer to the new employer by operation of law.

However, on this occasion rather than give protection to the employees, the exact opposite has happened based on the following criteria: –

Regulation 4

(7) Paragraphs (1) and (2) shall not operate to transfer the contract of employment and the rights, powers, duties and liabilities under or in connection with it of an employee who informs the transferor or the transferee that he objects to becoming employed by the transferee.

(8) Subject to paragraphs (9) and (11), where an employee so objects, the relevant transfer shall operate so as to terminate his contract of employment with the transferor but he shall not be treated, for any purpose, as having been dismissed by the transferor.

(9) Subject to regulation 9, where a relevant transfer involves or would involve a substantial change in working conditions to the material detriment of a person whose contract of employment is or would be transferred under paragraph (1), such an employee may treat the contract of employment as having been terminated, and the employee shall be treated for any purpose as having been dismissed by the employer.

Accordingly the players rely upon the fact that they have informed the new company which has acquired the business that they object to becoming employed by them in accordance with Regulation 4 (7) and have also taken the view that working for the new Charles Green consortium would involve a substantial change in their working conditions to their detriment in accordance with Regulation 4 (9). The players will be able to argue that the status of Glasgow Rangers in terms of which division they are going to play in next season is a substantial change in working conditions.

The response from the Charles Green consortium is that the players will be pursued for damages for breach of contract and inducement to breach contract.

From the players’ perspective, they have an opportunity to secure their futures in what has been a very difficult few months for them. One would imagine that if and when they do move to another club, they will seek as part of their contract an indemnity to avoid having to pay damages. Any new club would want to carry out their own due diligence especially given the difficulties of understanding how the TUPE regulations work.

The new consortium at Glasgow Rangers will immediately be feeling twitchy. They have made and paid for an investment which could be immediately undermined especially if a whole host of other players feel they can leave the club unconditionally.

All in all, it could be an uncertain time for all concerned.

If I was a betting man, and based on the fact that players can legitimately create a very strong argument that their working conditions have deteriorated, it might be very difficult for the new “Glasgow Rangers” to succeed in claiming damages.

Posted in Uncategorized | Leave a comment

Accountant who tweeted he would blow up an airport has won his appeal

Posted on May 30, 2012 by FrontRow Legal

 Paul Chambers lost his job as an Accountant following an avalanche of publicity when he was convicted in May last year of sending “an electronic comunication of a menacing character”, contrary to provisions of the 2003 Communications Act. The contrite comedian who tweeted a joke threat to “blow up” Robin Hood airport in south Yorkshire has lost his attempt to overturn the judgment but an impasse between two judges means that his appeal will now be heard again.

Chambers had been tweeting with his girlfriend, whom he wanted to visit in Northern Ireland. One tweet in the sequence said: “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!” In the way of twitter, this was shared with around 600 regular followers of his messages and came to the attention of airport security staff.

Protests against the alleged “over-reaction” have multiplied, with high-profile support from celebrity tweeters such as Stephen Fry.

Ben Emmerson QC, appearing for Chambers before Lord Justice Gross and Mr Justice Irwin in February, said that the conviction had proved the opposite of a deterrent.

Around 4,000 people retweeted the message in protest with support gigs including a fundraising event hosted by the comedian Al Murray. The comedian likened the affair to “something out of Monty Python”.

Posted in Uncategorized | Leave a comment

Our tweets

Contact Our Team

Our dedicated Office Support Team are always on hand to assist clients with any general aspects relating to FrontRow.

Tel: 0113 394 4398

Fax: 0113 298 7400

Email: info@frontrowlegal.com