Turf TV litigation judge upholds the status quo

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

Following a trial heard throughout May and June, judgment was handed down today in the litigation between BAGS and Turf TV. The judgment covers only the allegations in the case concerning exclusive rights agreements, and rejects both BAGS' claims against Turf TV and, as a consequence, Turf TV's counter-claims. The result is that there will be no change to current rights agreements.

The case involved proceedings brought by bookmaker group Bookmakers' Afternoon Greyhound Services (BAGS) against Amalgamated Racing (Amrac), which trades as Turf TV. BAGS was joined by William Hill, Ladbrokes and BetFred (Coral was also originally a claimant, but settled separately in December), and on Amrac's side were its shareholders (including licensed betting office (LBO) equipment supplier Alphameric) and the Racing UK racecourses. Following a counter-claim by Amrac, Satellite Information Services (SIS) was also brought into the litigation.

The case arose from the establishment by Racing UK and Alphameric of Amrac, which now operates a service broadcasting pictures of horseracing and certain other events to LBOs in competition with SIS. It concerned allegations by both BAGS and Amrac, with their respective allies, that the other side was in breach of EU and UK laws prohibiting anti-competitive agreements.

BAGS alleged that the Racing UK racecourses (some 30 out of the 60 British courses) had engaged in a price-fixing cartel by establishing Turf TV, with the aim – openly admitted by racecourse representatives – of increasing the amounts paid by LBOs for media rights to fixtures. BAGS argued that the licensing of rights on a collective, closed (because no-one else could bid) and exclusive basis infringed competition law.

Amrac challenged BAGS' own exclusive rights agreements with Arena and Northern Racing, as well as the sub-licence of those rights to SIS and a range of other exclusive rights agreements held by SIS directly with racecourses. However, by the time of the trial, Amrac had abandoned all of these claims, instead relying on a "contingent counter-claim" – this meant that it only challenged BAGS' and SIS' exclusive agreements if the court first upheld BAGS' challenge to the Amrac exclusive agreements.

Amrac brought a second distinct counter-claim against BAGS and the individual bookmakers (but not SIS). This involved certain counter-allegations of cartel behaviour amongst bookmakers. Again, Amrac abandoned a number of these claims, but continued to allege collusion by the bookmakers to withdraw sponsorship from events at Racing UK racecourses and to refuse to purchase Turf TV. In fact, by January 2008 all of the claimant bookmakers except BetFred had separately reached agreement with Amrac to take the Turf TV service.

The judgment is long (over 100 pages), but even so it deals only with BAGS' claim and Amrac's contingent counter-claim, and much of it consists of a detailed recitation of the facts and technical competition law discussion. Amrac's separate collusion allegations will be dealt with in a separate judgment later in the year – the judge did not want to hold up this part of the judgment potentially affecting exclusive rights agreements, given that the trial had been conducted on an expedited basis.

In summary, the judge decided to preserve the status quo. He rejected BAGS' claim that the various agreements by which Amrac was granted exclusive rights were illegal. This allowed him also to reject Amrac's claim that BAGS' and SIS' exclusive agreements were illegal.

In the background to the case is the much bigger issue of the ongoing dispute between bookmakers and racing as to how much money bookmakers should pay for horseracing – an issue that this judgment does nothing to resolve, but which continues to be the subject of heated debate at a number of levels.