The Football Association Premier League Ltd v Pplive Sports International Ltd (a company incorporated in Hong Kong SAR)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fraser |
| Judgment Date | 11 January 2022 |
| Neutral Citation | [2022] EWHC 38 (Comm) |
| Docket Number | Case No: CL-2021-000066 |
| Court | Queen's Bench Division (Commercial Court) |
[2022] EWHC 38 (Comm)
THE HONOURABLE Mr Justice Fraser
Case No: CL-2021-000066
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
COMMERCIAL COURT (QB)
Rolls Building
Fetter Lane
London, EC4A 1NL
Robert Howe QC and Peter Head (instructed by DLA Piper UK LLP) for the Claimant
Ms Zuo Jia and Mr David Ran (In-house counsel at the Defendant) for the Defendant
Hearing Dates: 29 and 30 November 2021
Introduction
This judgment concerns a summary judgment application by the Claimant. In these proceedings the Claimant is the entity called the Football Association Premier League Ltd, which is more widely known simply as “the Premier League”. That is how I will refer to the Claimant. The Premier League is the entity that organises and markets the Premier League football competition on behalf of its member clubs, of whom there are currently 20 in number. The Premier League was formed in the 1990s by certain association football clubs who competed in what was, then, called the First Division (which was organised by the Football League). Over time the attractiveness of the Premier League as a competition, the increase in popularity of watching this on television, and vast improvements in technology, have collectively led to a very considerable increase in the maximisation of television rights and wealth within that particular element of the sport, both domestically and across the world. The Defendant is PPLive Sports International Ltd (“PPL”), a company based in the Hong Kong Special Administration Region of the People's Republic of China (“PRC”). It has been involved in broadcasting Premier League football matches within mainland China and Macau.
In outline terms, PPL and the Premier League entered into two separate contracts for three seasons whereby PPL obtained the rights to show both live and delayed Premier League football matches, and also so-called “clips” or highlights, on television both within the mainland PRC and also Macau. The details of those two contracts are dealt with below, and they are called the Live Package Agreement (“ LPA”) and Clips Package Agreement (“CPA”) respectively. The sums to be paid to the Premier League under these agreements are considerable; the payment for the three seasons under the LPA was to be US$701 million, and under the CPA the more modest amount of US$8.02 million.
However, although the LPA was agreed in 2017, the first of the three football seasons under that agreement was the one that ran (or was intended to run) from August 2019 to June 2020. The first season was therefore the one that was severely disrupted by the COVID-19 pandemic. This hit the world in about March 2020, starting on different dates in different parts of the world, but started in China before that. The World Health Organisation declared COVID-19 to be a pandemic on 1 March 2020, although it had been declared a Public Health Emergency of International Concern on 30 January 2020. As is widely known, the pandemic has impacted the lives, livelihoods and activities of almost everyone on the planet, and certainly the Premier League football season was affected too. At its heart this case concerns both that disruption, and also two instalment payments of US$210.3 million and US$2.673 million, one under the LPA, and the other under the CPA, that were missed. These were due to be paid by PPL to the Premier League on 1 March 2020 and 1 June 2020 respectively. Neither of them has been paid by PPL. In these proceedings the Premier League sues for these sums and seeks summary judgment.
The Premier League season of 2019/2020 was temporarily suspended on 13 March 2020 as realisation began to dawn about how COVID-19 would hit UK society. On 23 March 2020 the UK Government banned all public gatherings, including professional association football matches and other sports, imposed social distancing and also what is now widely called lockdown (or more usually, the first lockdown). I will not recite the full measures that were adopted but few will need reminding of them. On 3 April 2020 the Premier League formally suspended the 2019/2020 season, and when the competition resumed on 17 June 2020 it was under very different conditions, not least being played in empty sports stadiums or stadia, without any fans present. There were other differences in how the matches were played, and these are identified further below. The 92 remaining fixtures in the 2019/2020 season were played between 14 June 2020 and 26 July 2020 when the season was completed, with one club being proclaimed champions and three others being relegated to the Championship, the competition that sits below the Premier League in terms of status. As is normal, these clubs were replaced by three promoted clubs in due course for the 2020/2021 season.
Notwithstanding the non-payment of the instalments to which I have referred, the Premier League continued to provide PPL with the relevant feeds of matches under both the LPA and the CPA for the remaining 92 matches of the 2019/2020 season that ran from June to July 2020. On 20 August 2020, after the end of that season but before the 2020/2021 season commenced, the Premier League suspended both agreements under their respective terms, and then on 3 September 2020 terminated both agreements, again under their terms (although the contractual effect of these provisions is somewhat controversial and will be addressed further below). Later that same day PPL purported to terminate the agreements as well, although the Premier League submits that by the time it did so, the agreements had already come to an end due to their prior termination by the Premier League. The precise timings are as follows. The Premier League served the termination notice in respect of the LPA on 3 September 2020 at 11.31 am (London time) and a similar notice under the CPA very shortly afterwards, at 11.33 am (London time). Later on the same day, at 12.15 pm (London time), PPL purported to serve its own termination notices in respect of both the LPA and the CPA. However, in paragraph 30 of the Defence and Counterclaim, PPL admits – but only in relation to the CPA, and not the LPA — that the Premier League was entitled to terminate the CPA, and that the Premier League did so by way of its termination notice on 3 September 2020. Whether the Premier League was entitled to terminate the LPA is an issue that has to be dealt with, and I do so below.
A claim form was also issued by the Premier League on 3 September 2020. The reason that this case has a Commercial List case number from 2021 is because the Premier League, for reasons that have not been explained, initially issued the proceedings in the London Circuit Commercial Court. Given the value of the claim and the nature of the issues, the case was then transferred to the Commercial Court (and hence given its existing case number) in 2021.
Following the termination referred to at [5], and for the season 2020/2021, the rights to broadcast matches in mainland China and Macau have been acquired from the Premier League by another company, Tencent Sports, although at what is reported to be a far lower fee of US$10 million. Different contractual arrangements with a further company have been entered into by the Premier League for the third of the seasons under the LPA and CPA, namely the 2021/2022 season.
Some central facts are agreed by the parties. PPL accepts that the instalments were not paid by the contractually due dates, and admits the terms of both the LPA and the CPA. In addition to the other points which it raises, it submits that the effect of granting summary judgment to the Premier League for the outstanding instalments, given the termination of the agreements, is that PPL will have received rights to broadcast matches for only one of the three seasons agreed, and a severely disrupted season at that. It also points out — and this is based on public news announcements, rather than being available as direct evidence on the application, or on disclosure — that the Premier League has been reported as agreeing very substantial rebates to its broadcast partner domestically for the season in question. For example, on 17 June 2021 sportspromedia.com reported that the Premier League and Sky Sports had agreed a rebate of £170 million (approximately at that date US$213 million) payable to Sky Sports by the Premier League in respect of the contract between the two for domestic TV rights in the UK. PPL relies on concepts of fairness and justice to maintain that it would be unfair to grant the Premier League summary judgment in these circumstances. This is a point to which I shall return at the end of this judgment.
As is well known, summary judgment may be granted to a claimant when, under CPR Part 24, a defendant has no real prospect of successfully defending a claim or issue, and there is no other compelling reason why the case or issue should be disposed of at a trial. Such applications are heard by the court earlier in time than when a trial could be held, and are done without full evidence or disclosure having taken place. Evidence is submitted in advance in the form of witness statements lodged by the parties, and witnesses are not heard in person or cross-examined. Before turning to the substance of the summary judgment application, there are two applications that must be explained, both issued by PPL shortly before the summary judgment hearing.
The Defendant's two pre-hearing applications
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