Abstract
A. Introduction and Summary
1. The Claimant (“Betgenius”) is a company engaged in the commercial supply of data to the betting industry. It is the ultimate licensee of the exclusive right to collect certain data relating to football matches played by clubs in membership of the Premier League (“the PL”), the English Football League (“the EFL”) and the Scottish Professional Football League (“the SPFL”) (together, “the Three Leagues”).
2. All the clubs in the Three Leagues (together, “the clubs”) are entitled to control access to their stadia during matches, including the terms on which such access is permitted. Those terms (as set out in the clubs' Ground Regulations and ticketing conditions, more specifically referred to below) include a prohibition on the collection and dissemination of match data for commercial purposes.
3. By such terms and their enforcement, the clubs are entitled and able to control the collection and dissemination of live data about matches played in the Three Leagues (“Live League Match Data” or “LLMD”). The clubs collectively authorise another entity, Football DataCo Limited (“FDC”), to exploit such data on their behalves. Betgenius is the exclusive licensee, under a written agreement originally made on 8 May 2019 with FDC (“the FDC-Genius Agreement”), of the right to exploit certain such data for betting purposes. The main type of data which Betgenius is authorised to collect from inside stadia under the FDC-Genius Agreement, defined in that agreement as “Fast Betting Data” and set out in more detail at paragraph 24 below, is referred to in this pleading as “FDC Data”. The exclusive licence extends to FDC Data relating to the vast majority of the matches played by the clubs at their respective stadia. The matches to which the licence extends are defined in the FDC-Genius Agreement as, and referred to hereinbelow as, “Matches”.
4. The First and Second Defendants (together “Sportradar”) are also engaged in the commercial supply of data to the betting industry. They have similar arrangements, including on terms providing for exclusivity, with entities that are able to control the collection and dissemination of data about other sporting events. They are familiar with such exclusivity arrangements and benefit from them in a range of other contexts.
5. In 2018–2019, Sportradar participated in a tender process run by FDC with a view to being granted rights in respect of the collection of LLMD. Their bid was unsuccessful and they were not granted any such rights.
6. The FDC-Genius Agreement, which Betgenius was awarded following that tender process, permits Betgenius to grant Secondary Supplier Licences for the use of the FDC Data. Shortly after Betgenius was awarded the FDC-Genius Agreement, Sportradar entered into negotiations with Betgenius for a Secondary Supplier Licence. Sportradar insisted, throughout those negotiations, on the following two conditions which Betgenius was unable to grant under the terms of the FDC-Genius Agreement: (i) that it should be permitted to take (or enable customers to take) a usage licence directly from FDC rather than from Betgenius, and (ii) that it should have unimpeded access to stadia to collect LLMD for itself. Although Betgenius repeatedly explained it was not in a position to grant Sportradar those rights, Sportradar continued to insist on these conditions. As a consequence, Betgenius and Sportradar have been unable to agree a Secondary Supplier Licence.
7. Despite not being granted rights to collect LLMD by FDC or holding a Secondary Supplier Licence, Sportradar have continued to collect LLMD in respect of Matches and to supply it commercially to bookmakers. They have done so without any permission from the Three Leagues or any of the clubs or FDC and without a Secondary Supplier Licence from Betgenius.
8. Sportradar collect such data (“Unofficial LLMD”):
in part and to an extent unknown by gathering it from live televised broadcasts of Matches played by clubs in the Three Leagues, whether televised in the UK or abroad; and in part by the operation of a network of unauthorised scouts (“Scouts”) who attend Matches surreptitiously to collect FDC Data on Sportradar's behalf and transmit it back to Sportradar for commercial use as part of Sportradar's package of Unofficial LLMD.
9. LLMD, and in particular FDC Data, is information of substantial commercial value. At least part of that value is attached to the right to collect the data from inside the clubs' stadia, inasmuch as: (i) certain Matches may not be televised, and (ii) the collection of data from live broadcasts involves a delay that makes the data less valuable to betting customers. Under the FDC-Genius Agreement, Betgenius has agreed to pay very substantial sums for the right to collect FDC Data from within the clubs' stadia in respect of the Matches and to control its dissemination to betting customers. That FDC Data is accordingly confidential to Betgenius in its capacity as an exclusive licensee. Further or alternatively, such FDC Data is a trade secret and Betgenius is a trade secret holder within the meaning of the Trade Secrets (Enforcement etc.) Regulations 2018/597 (“the TSER”).
10. Sportradar know that Betgenius is the exclusive licensee of the relevant rights. They also know that the Scouts' activities described in paragraph 8.2 above contravene the Ground Regulations and/or ticket conditions (more specifically referred to below) that are binding on all persons who enter a stadium owned and/or operated by any of the clubs. The Scouts also have, or ought reasonably to have, the same knowledge.
11. In those circumstances, by such unlicensed collection and/or dissemination and/or exploitation of FDC Data in respect of the Matches, Sportradar and the Scouts contravene equitable obligations of confidence owed to Betgenius.
12. Further, the actions of Sportradar and the Scouts in working together to collect and disseminate or exploit FDC Data in respect of the Matches, notwithstanding Betgenius' exclusive rights and the restrictions that prevent such data from being collected without permission, constitute a conspiracy to injure Betgenius by unlawful means. The unlawful means consist of: (i) breach of the Ground Regulations and the applicable ticket conditions of the clubs by the Scouts, (ii) trespass to land by the Scouts, (iii) breach of confidence and/or of a trade secret by Sportradar and the Scouts, and (iv) Sportradar's inducement of breaches of contract by the Scouts, the contract being in each case that under which the relevant Scout obtained access to the stadium of the club in question (including the Ground Regulations and applicable ticket conditions) for the purposes of a Match.
13. Sportradar have indicated an intention to continue collecting FDC Data in this manner, including through their network of Scouts. Betgenius accordingly seeks injunctive relief to prevent Sportradar and the Scouts from committing any further wrongful acts.
14. Further:
In respect of the breach of equitable duties of confidence, Betgenius seeks an account or accounts of profits, or alternatively equitable compensation. In respect of the unlawful acquisition, use and disclosure of a trade secret, Betgenius seeks damages pursuant to Regulation 17 of the TSER. In respect of the unlawful means conspiracy, the activities of Sportradar and the Scouts adversely affect the value that Betgenius is able to derive from the licensing of the right to use FDC Data in respect of Matches for betting purposes, while putting Betgenius to substantially increased enforcement costs. Betgenius has accordingly suffered loss as a result of the conspiracy and seeks damages to compensate it for that loss.
15. Betgenius has sought to liaise with Sportradar with a view to identifying the best procedural means of ensuring that the Scouts who collect data on behalf of Sportradar (i) will be bound by the outcome of the proceedings and (ii) can be heard in the proceedings if they wish to be, without each of them needing to be joined as defendants. Sportradar has not been prepared to identify the Scouts and has not otherwise engaged with those proposals. Accordingly, Betgenius has identified a representative group of Scouts who have collected FDC Data on behalf of Sportradar, including after being notified expressly that to do so was unlawful (the Third to Eighth Defendants, together “the Scout Defendants”). It pursues the claims in paragraphs 13 and 14 above against the Scout Defendants under CPR 19.6 as representatives of all persons with the same interest (namely the Scouts as defined in paragraph 8.2 above).
16. Finally, by way of introduction and summary, this claim is connected with proceedings ongoing in the Competition Appeal Tribunal (Case Number 132/5/7/20) pursued by Sportradar against FDC, Betgenius and Genius Sports Group Limited (“the Competition Proceedings”). This claim raises causes of action which cannot be pursued by Betgenius in the Competition Appeal Tribunal but issues in the two sets of proceedings overlap. The Claimant intends to seek a direction that the two sets of proceedings be case managed together.
B. The Rights of the Clubs: Contract and Trespass
PL and EFL Ground Regulations
17. The standard Ground Regulations of the PL (“the PL Ground Regulations”) and of the EFL (“the EFL Ground Regulations”) each contain, and have contained at all times material to this claim (i.e. since at least May 2019), the following provisions.
In the preamble: “Ground” is defined as “this football stadium and all locations owned, occupied or utilised by the Club”. “Club” is defined as “this football club”. “Material” is defined as “any audio, visual and/or audio-visual material and/or any information or data”. Paragraph 1 provides: “Notwithstanding possession of any ticket the Club, any police officer or authorised steward may refuse entry to (or eject from) the Ground any person […] that fails (or in the Club's reasonable opinion is likely to fail) to comply with these Ground Regulations or any reasonable instruction issued by a police officer or authorised steward or officer of the Club […]”. Paragraph 16 provides:
“Mobile telephones and other mobile devices are permitted within the Ground PROVIDED THAT (i) they are used for personal and private use only (which, for the avoidance of doubt and by way of example only, shall not include the capturing, logging, recording, transmitting, playing, issuing, showing, or any other communication of any Material for any commercial purposes); and (ii) no Material that is captured, logged, recorded, transmitted, played, issued, shown or otherwise communicated by a mobile telephone or other mobile device may be published or otherwise made available to any third parties including, without limitations, via social networking sites.”
Paragraph 19 provides:
“Save as set out in paragraph 16 above, no person (other than a person who holds an appropriate licence) may capture, log, record, transmit, play, issue, show or otherwise communicate (by digital or other means) any Material in relation to the Match, any players or other persons present in the Ground and/or the Ground, nor may they bring into the Ground or use within the Ground (or provide to, facilitate or otherwise assist another person to use within the Ground) any equipment or technology which is capable of capturing, logging, recording, transmitting, playing, issuing, showing or otherwise communicating (by digital or other means) any such Material. […]”
18. The PL Ground Regulations and the EFL Ground Regulations are binding on all persons who enter a stadium owned or operated by a club to watch a Match of a PL club or an EFL club, respectively.
The preamble to both sets of Ground Regulations states: “Notice: Entry to the Ground is expressly subject to acceptance by the visitor of these Ground Regulations and the rules and regulations of FIFA, UEFA, The Football Association, The Premier League and The English Football League (EFL) in respect of the relevant competition. The Ground Regulations incorporate the Club's customer charter (if any). Entry to the Ground shall constitute acceptance of the Ground Regulations.” The prominent displaying of the Ground Regulations at the stadia owned or operated by all PL and EFL clubs is mandated by: in the case of the PL, Rule K.8 of the PL Rules, which provides: “Each Club shall ensure that sufficient copies of the official notice entitled ‘Ground Regulations’ published by the League are displayed prominently at its Stadium”; and, in the case of the EFL, paragraph 32.1 of Appendix 1 (“Membership Criteria”) of the EFL Regulations: “All Clubs must ensure that ground regulations, as issued by the League from time to time, are displayed prominently at each entrance to the ground used by supporters, as well as any point of sale for tickets (including online ticket sales).”
Scottish FA Ground Regulations
19. The Ground Regulations of the Scottish FA (“the Scottish FA Ground Regulations”) contain, and have contained at all material times since May 2019, the following provisions.
Paragraph 18 provides:
“MOBILE TELEPHONES, SMARTPHONES and other similar mobile telephonic devices (‘Mobile Devices’), excluding cameras which are not part of and subsidiary to a Mobile Device, are permitted within the Ground, PROVIDED THAT, (i) they are used for personal and private use only, which, and by way of example only, shall not include the capturing, logging, recording, transmitting, playing, issuing, showing, or any other communication of any material (‘Capturing), for any commercial purpose; and (ii) no material that is Captured by a Mobile Device or other device may be published, communicated, transmitted, sent, broadcast, and/or otherwise made available by any means to any third party including, without limitation, social networking sites or any other means of communication and/or transmission.”
Paragraph 19 provides:
“Save as provided in paragraph 18 above, NO PERSON (other than a person who holds an appropriate licence) MAY RECORD, TRANSMIT, PLAY, ISSUE. CAPTURE, LOG, BROADCAST, SHOW OR OTHERWISE COMMUNICATE ANY MATERIAL including and/or comprising any audio, visual or audio-visual Material or any information or data, by digital or other means, in relation to a Match taking place in the Ground, any players or other persons present in the Ground and/or the Ground, nor may they bring into the Ground or use within the Ground (or provide to, facilitate or otherwise assist another person to use within the Ground) any equipment or technology which is capable of capturing, logging, recording, transmitting, playing, issuing, showing or otherwise communicating (by digital or other means) any such Material as described above. Any person failing to comply with these restrictions is deemed to be liable to have such equipment, technology and Material in whatever form, confiscated without compensation by the Club/Event Organiser. […]”
Paragraph 21 provides:
“The Club/Event Organiser reserves the right: (i) for its employees, agents, security staff and contractors to REMOVE FROM THE GROUND; and (ii) to IMPOSE SANCTIONS as regards future entry to the Ground on, any person who does not comply with these Regulations and/or the Rules of The Scottish Football Association, The Scottish Professional Football League and/or, where applicable, the Regulations of the FIFA/UEFA Competitions […]”.
20. The Scottish FA Ground Regulations are binding on all persons who enter a stadium to watch an SPFL Match. The preamble to the Scottish FA Ground Regulations states: “ENTRY TO THIS GROUND, WHETHER ON PAYMENT OR OTHERWISE, SHALL BE DEEMED FOR ALL PUPOSES [sic] TO CONSTITUTE AN UNQUALIFIED ACCEPTANCE TO BE BOUND BY AND AN UNDERTAKING TO COMPLY WITH THESE GROUND REGULATIONS AND RELEVANT FOOTBALL RULES”. Paragraph 20 further provides: “All PERSONS ENTERING GROUND are admitted only subject to these Ground Regulations and to the Football Rules and Regulations of The Scottish Football Association and The Scottish Professional Football League.” Clubs playing in the SPFL are required to display the Ground Regulations prominently at each entrance to the relevant stadium and at any point of sale for tickets.
Ticket conditions
21. In addition to the provisions of the Ground Regulations, clubs in the PL, EFL and SPFL also impose conditions on the use of tickets in relation to Matches. Such conditions are frequently based on model conditions circulated by the relevant League and adopt restrictions similar to those pleaded above. For example, each ticket issued by Oxford United Football Club (a club in membership of the EFL) states on its face:
“1. This Ticket is issued subject to the rules and regulations of FIFA, UEFA, The Football Association, The FA Premier League, The Football League and relevant competition and Oxford United ground Regulations.
2. No person may bring into the ground or use within the ground any equipment which is
capable of recording or transmitting (by digital or other means) any audio, visual or audio- visual material or any information or data in relation to any match, or the ground.
3. Mobile telephones are permitted within the ground, provided that they are used for personal and private use only. […]
8. The use of this ticket to enter the ground constitutes acceptance of such rules and regulations and the Ground Regulations and Oxford United reserves the right to eject or ban from the ground, any person who fails to comply with such rules and regulations.”
Trespass to land
22. Because the Ground Regulations and ticket conditions set out above constitute the terms on which spectators are permitted to enter a club's stadium while a Match is being played, any contravention of those terms constitutes an act outside the scope of that limited permission, and amounts to a trespass to land, injuring the rights of those clubs who also own as freeholders or leaseholders the land in question.
Enforcement
23. The above prohibitions are regularly enforced in practice against persons who contravene them. In particular, Scouts engaged by Sportradar to collect data from Matches have been ejected from stadia on over 300 occasions in the 2019/20 season on the grounds that they have been collecting LLMD without permission.
C. The Rights of Betgenius: Confidential Information and Trade Secrets
The FDC-Genius Agreement
24. FDC and Betgenius entered into the FDC-Genius Agreement with effect from 8 May 2019. Its terms included the following:
Clause 4 (“Grant of Rights”):
“4.1 In consideration of Betgenius paying the Minimum Guarantee and DataCo Revenue Share pursuant to clause 30.1 DataCo hereby appoints Betgenius as the Official Betting Data Collection and Distribution Partner with effect from the Commencement Date and for the remainder of the Term (‘Rights Period’) and hereby grants to Betgenius in respect of the Rights Period and, without prejudice to clause 4.2, the Territory only:
(a) the exclusive right to:
(i) collect and/or collate Fast Betting Data (for the avoidance of doubt such an exclusive right is subject to the access to Grounds permitted by DataCo and/or the Leagues for the collection of certain data as set out without limitation in clause 5.3 […]
(iv) supply the Betgenius Feeds, Redundancy Feeds, Fixture Lists and/or (subject to clause 24) Insight Data to Betting Customers for Betting Purposes (and to grant such a right to Secondary Suppliers in accordance with the terms of this Agreement) […]”
Clause 5 (“Exclusivity”):
“5.1 Subject to clause 5.3, the Parties acknowledge and agree that save as expressly provided in this Agreement, DataCo will not exercise, nor grant to any third party the right to exercise, any of the rights granted exclusively to Betgenius pursuant to clause 4 during the Term and in the Territory. […]
a.2 Throughout the Term DataCo shall:
(a) (save as expressly provided in this Agreement) not itself or grant any third party any right to make available or otherwise supply any Official Football Data, Unofficial Data or any other data relating to Matches to Betting Customers and/or for Betting Purposes; and
(b) contractually require that the Other Official Data Partners shall not collect/collate Safe Messaging Data (or equivalent) or Unofficial Data from Matches (including inserting relevant provisions in contracts with the Other Official Data Partners). […]”
Clause 30 (“Financial Provisions”) set out the consideration payable by Betgenius.
Schedule 1 contained the following relevant definitions:
“Betting Customers” was defined as embracing a number of categories of commercial entities or commercial users “who use or intend to use the Betgenius Feeds to engage in or enable others to engage in any betting transactions”.
“Betting Purposes” was defined as “(a) the purposes of offering, accepting and settling Betting; (b) use in or in connection with prediction based information, products, tools or services to facilitate betting transactions (excluding digital form products supplied solely for use in licensed betting offices or the local equivalent); and (c) use for editorial purposes by Betting Customers (including without limitation news reporting, analysis or other discussions of Matches) on their platforms and services or as part of advertorial (being material published via a third party source in return for consideration from a Betting Customer)”;
“Competitions” was defined as encompassing a list of competitions organised by the Three Leagues;
“Fast Betting Data” was defined as “General Match Data and Safe Messaging Data from all Matches (and references to the Fast Betting Data include any part(s) of it”
“General Match Data” was defined as “the categories of data set out in Schedule 2” _
“Grounds” was defined as “the football grounds of the Clubs”, in turn defined as “a football club which participates in any of the Competitions”;
“Match” was defined as “a football match played as part of any of the Competitions”
“Official Betting Data Collection and Distribution Partner” was defined as “the entity exclusively appointed by DataCo to collect and supply Fast Betting Data to Betting Customers”;
“Official Football Data” was defined as “General Match Data, Insight Data and Tracking Data together with any other categories of data (except Safe Messaging Data (or equivalent) collected/collated by or on behalf of DataCo and/or the Leagues from time to time”;
“Safe Messaging Data” was defined as “any and all in-Match data comprising a set of commands, abbreviations, symbols or text used to update and notify betting operators in relation to the progress of a Match to enable such betting operators to swiftly manage their in-game markets and prices following key incidents or potential incidents which are of relevance to the business of in-game betting”;
“Unofficial Data” was defined as “any fixture lists, football data or index concerning the Matches that is the same as or substantially similar to the Fixture Lists, Fast Betting Data, the Insight Data and/or the Tracking Data which is collected/collated, produced and/or distributed without consent or authorisation from DataCo.”
Schedule 2 set out the items of Fast Betting Data which Betgenius was authorised to collect by reason of the above provisions. Those items are as follows:
“1. Notification of impending match KO [kick-off]
2. Team sheets
3. Referee name
4. Referee home town
5. KO notification
6. Goal notification including scorer name and time of goal
7. Penalty notification including penalty taker and time
8. Substitution notification including player on and off and time of sub
9. Yellow card notification including name of Player and time of card
10. Red card notification including name of Player and time of card
11. Shots on target (including name of Player data)
12. Shots off target (including name of Player data)
13. Shots hitting woodwork (including name of Player data)
14. Corners (including name of Player data)
15. Offsides (including name of Player data)
16. Throw-ins (including name of Player data)
17. Goal kicks (including name of Player data)
18. Possession (as a percentage)
19. Fouls won
20. Fouls conceded
21. Half time score
22. Full time score
together with such other categories of data agreed by DataCo from time to time during the Term.”
25. Under Clause 44.2 of the FDC-Genius Agreement, FDC warranted to Betgenius that it “has, and shall maintain throughout the Rights Period, all necessary consents, permits, licences and authorisations to enable it to grant the rights set out in clause 4 […]”. Betgenius accordingly understands that FDC is entitled pursuant to arrangements with the clubs and the Three Leagues to grant to it the right of access to stadia to collect FDC Data.
26. The FDC-Genius Agreement has been amended in certain respects since it was first agreed, but has at all material times provided for the grant of the rights set out above. The collective effect of the above provisions is that Betgenius is the exclusive licensee of the right to collect and disseminate FDC Data in respect of Matches played by PL, EFL, and SPFL clubs in their respective stadia.
The value of FDC Data
27. The right to license the use of FDC Data for betting purposes is of significant commercial value. In particular:
There is substantial demand for the placing of bets on matters relating to ongoing Matches played by clubs in the Three Leagues.
In order optimally to serve that demand, it is desirable for a bookmaker to have access to a fast and accurate source of data relating to such Matches while they are ongoing.
While some Unofficial LLMD in relation to some ongoing Matches can be obtained from sources such as televised coverage (i.e. Off-Tube LLMD):
Not all matches in the Three Leagues are televised, and the more comprehensive the LLMD (i.e. the greater the number of Matches to which it relates and the greater the number of items of data relating to each Match contained in it, reliably and accurately), the wider the range of bets a bookmaker is able to offer and so the greater value such data has.
LLMD obtained from within stadia can in general be sourced more quickly, and is therefore of greater value to bookmakers, in particular because it allows bookmakers to leave their betting markets open longer either because they can take bets without having to adopt countermeasures or because it affords them a greater flexibility with respect to any countermeasures they adopt to prevent customers from taking advantage of the lapse of time in collection and dissemination of data (“latency”). Latency can create concerns where it leads to consumers having access to live data more quickly than the bookmaker and being able to place bets with the benefit of that information: it can be addressed through countermeasures such as suspending the placing of bets where such risks are particularly pronounced (for example, the outcome of a penalty kick) or by applying an automatic delay between the placing and acceptance of a bet, but there is value to bookmakers either in not needing to adopt such measures or in having flexibility as to any countermeasures they choose to adopt.
More generally, the value of LLMD is, to a commercially significant degree, a function of the speed, accuracy and reliability with which it can be provided to bookmakers.
The ability of a bookmaker to use FDC Data for the purpose of taking bets on matters relating to ongoing Matches is therefore a significantly valuable right.
By extension, the exclusive right to license bookmakers to use FDC Data in that way, and to charge a fee in return, is also a significantly valuable right.
Equitable obligation of confidence owed by Sportradar and the Scouts; trade secrets
28. By virtue of the exclusive rights pleaded above, Betgenius is the beneficiary of an equitable obligation of confidence in relation to the FDC Data in respect of the Matches. It has paid a substantial sum for the exclusive right to collect and disseminate commercially valuable information, the collection and dissemination of which is otherwise restricted. Accordingly, to the extent that FDC Data comes into the possession of a person who knows or ought to know of Betgenius' exclusive rights, that person owes Betgenius an equitable obligation of confidence in respect of that FDC Data. Further or alternatively, such commercially valuable information is a trade secret belonging to Betgenius, for the purposes of the TSER.
29. Sportradar have at all material times known or ought to have known of Betgenius' exclusive rights.
Sportradar itself participated in a competitive tender exercise in 2018-19 seeking to be granted such rights by FDC. It was accordingly aware of the terms on which FDC granted the rights to Betgenius.
Further, Sportradar has referred extensively to those exclusive rights, including in the Competition Proceedings.
Further, a document prepared by Sportradar, dated 14 August 2019 and entitled “England Security Issues”, which Betgenius believes was given to Scouts as part of their training to collect FDC Data on the instructions of Sportradar, says:
“
Scouts are NOT doing anything illegal by collecting data from the venue
Only issue could be that a scout might violate the terms of clubs/ticket conditions BUT this refers only to the football club policy
— No law is being broken, therefore Scout cannot be arrested (Police have to believe that a crime is being committed)
— The main consequence is that a Scout is asked to leave the stadium.”
In other words:
Sportradar did not, according to that document, believe that the collection of FDC Data constituted a criminal offence;
Sportradar were, however, aware that such collection contravened the rights of clubs and that accordingly, if discovered, a Scout was liable to be ejected from the stadium in question;
Sportradar communicated that understanding to their appointed Scouts.
5. The same document provided on a subsequent page, in relation to matches in the Football Conference (in respect of which Sportradar were the exclusive official data provider):
“Since we have a contract with the Football Conference, guaranteeing us to be the official and exclusive data provider for the related leagues, other companies are not allowed to cover matches at the venue without our agreement. Therefore, it is important:
— To identify competing Scouts […]
— To inform authorities immediately”.
In other words Sportradar were aware, and communicated to their Scouts, that the existence of an agreement granting exclusive rights to one provider to collect match data from stadia was effective to prohibit other scouts from collecting such data, and was grounds for information to be sent to the “authorities”.
30. The Scouts have also at all material times known or ought to have known of Betgenius' exclusive rights.
Paragraphs 29.3 to 29.6 above are repeated.
Further, certain of the Scouts had been ejected from club stadia for contravening the Ground Regulations and/or ticket conditions—and therefore clearly had knowledge of those restrictions, at least by the time of their ejection—but nevertheless on at least one subsequent occasion attended such stadia to gather FDC Data in respect of Matches for the benefit of Sportradar. Particulars of this allegation in respect of the Scout Defendants are set out at paragraph 32 below.
Any Scout with knowledge of the restrictions would have been able to establish from publicly available sources the beneficiary of the restrictions, namely Betgenius, the exclusive licensee of the relevant rights.
D. Wrongful Activities of Sportradar and the Scouts
31. On a number of occasions in the 2019/20 football season, Scouts attended Matches at clubs' stadia, collected FDC Data and transmitted it to Sportradar. In each case the relevant Ground Regulations as pleaded above were displayed at the stadium in question and were accordingly binding on the relevant Scout.
32. So far as Betgenius is aware, the Scout Defendants attended and collected FDC Data at 70 Matches between them.
33. On each occasion on which a Scout attended a Match and collected and transmitted FDC Data to Sportradar:
the relevant Scout was instructed by Sportradar to attend the stadium in question; and
the collection of FDC Data by the Scout (and/or Sportradar, on whose behalf the Scout Defendant was acting); (ii) the transmission of the FDC Data by the Scout to Sportradar; and (iii) the receipt and/or subsequent use by Sportradar of such FDC Data, constituted a breach of obligations of confidence owed to Betgenius by Sportradar and the Scout in question, for the reasons pleaded above.
34. Further or alternatively, Sportradar and/or the Scouts knew or ought to have known, in the circumstances set out above, that they were engaging in the unlawful acquisition, use and/or disclosure of a trade secret for the purposes of the TSER.
E. Conspiracy to Injure by Unlawful Means
35. Further, on a date unknown but no earlier than the appointment of Betgenius as the exclusive licensee in May 2019, Sportradar and their appointed Scouts (including the Scout Defendants) have combined to injure Betgenius by unlawful means, as particularised below.
36. The unlawful means in question are:
Breaches of the Ground Regulations and/or ticketing conditions, as set out above: In each case on which a Scout collected FDC Data in respect of a Match and transmitted it to Sportradar, he or she breached those provisions, which were binding by virtue of his or her entry into the stadium.
Inducement of such contractual breaches by Sportradar:
Sportradar knew of the terms of the Ground Regulations and of the ticket conditions imposed by clubs, and also knew that the collection of FDC Data by Scouts and its transmission to Sportradar would constitute a breach of those conditions. Paragraph 30 above is repeated.
By nevertheless engaging Scouts to carry out such activities, Sportradar induced each breach of the Ground Regulations and/or ticket conditions by those Scouts.
Trespass to land:
On each occasion on which a Scout collected FDC Data in respect of a Match and transmitted it to Sportradar, he or she exceeded the terms of the limited permission by which he or she was entitled to be present in the stadium in question. In doing so, each such Scout, by remaining in the stadium while engaging in such activity, committed a trespass to land.
Further, Those Scouts carried out those acts of trespass to land at the request of and under the direction of Sportradar. Accordingly, Sportradar authorised the acts of trespass committed by those Scouts, and/or were so directly involved in those acts as to be jointly liable for those acts.
Breaches of duties of confidence owed to Betgenius (as set out above) and/or to the clubs and/or FDC:
On each occasion on which a Scout collected FDC Data in respect of a Match and transmitted it to Sportradar, he or she breached the obligations of confidence pleaded above. Alternatively, if and to the extent that any Scout was unaware and could not reasonably have been expected to be aware that Betgenius was the beneficiary of the relevant obligation of confidence, he or she knew or ought to have known that the information was confidential to the relevant club and/or FDC.
On each occasion on which Sportradar made use of that data for commercial purposes, it breached the obligations of confidence pleaded above.
37. Sportradar and their appointed Scouts knew that, or were reckless as to whether, the means pleaded above were unlawful. Paragraphs 29, 30 and 31 above are repeated.
38. Further, Sportradar and their appointed Scouts intended by their actions to cause harm to Betgenius, and the means pleaded above were the means by which they sought to cause that harm.
As the known exclusive licensee, Betgenius was the beneficiary of the arrangements set out above for the restriction of the collection and dissemination of FDC Data in respect of Matches.
Any activity in contravention of those arrangements would (as the conspirators must have known) inevitably cause harm to Betgenius, in damaging the value of the exclusivity for which it had agreed to pay substantial sums. Such harm was inseparable from any advantage that might accrue to Sportradar and/or the Scouts.
39. By reason of the conspiracy, Betgenius has suffered loss and damage, in particular in that: (i) it has been required to incur significant costs in seeking to prevent unlawful activity by Sportradar and the Scouts, and (ii) the availability of Sportradar's unlawfully-sourced service has had an impact on Betgenius' ability to derive revenue from its own lawful service.
F. Betgenius' Claims
40. Sportradar and the Scouts (including the Scout Defendants) have made it clear that they intend to continue with their collection and dissemination of FDC Data in respect of Matches. Unless such activity is restrained, Betgenius will continue to suffer loss. It therefore seeks an injunction to prevent Sportradar and the Scouts from further collecting and disseminating FDC Data in breach of their obligations of confidence owed to Betgenius, and/or pursuant to the unlawful means conspiracy pleaded above. As pleaded above, it proceeds against the Scout Defendants under CPR 19.6 as representatives of all parties with the same interest, namely the Scouts as defined in paragraph 8.2 above.
41. Further:
In respect of the claim for breach of confidence, Betgenius seeks, at its election: (i) an account of profits earned by Sportradar and the Scouts from their breaches, and/or (ii) equitable compensation.
In respect of the unlawful acquisition, use and disclosure of a trade secret, Betgenius seeks damages pursuant to Regulation 17 of the TSER.
In respect of the claim for unlawful means conspiracy, Betgenius seeks damages in respect of the losses pleaded at paragraph 40 above or, at its election (given the infringements of confidentiality and/or of property rights exclusively licensed to Betgenius constituting the unlawful means agreed upon): (i) an account of profits earned by Sportradar and the Scouts from their breaches, and/or (ii) equitable compensation.
Betgenius is entitled to and claims interest on all sums found due to it pursuant to section 35A of the Senior Courts Act 1981 or pursuant to the equitable jurisdiction of the Court.
And the Claimant Claims:
An injunction to restrain each of the Defendants (and, pursuant to CPR 19.6, the Scouts), howsoever acting, from:
collecting FDC Data from inside any club stadium in which a Match is taking place;
disseminating or making use of any such data; and,
in the case of Sportradar, (i) engaging, paying, or otherwise inducing, persuading or procuring any person to carry out the above acts, or (ii) supplying any equipment, tickets, or funds to any person for the purpose of enabling them to carry out the above acts.
An inquiry as to damages or, at Betgenius' election, an account of profits pursuant to paragraph 41.1 above.
An inquiry as to equitable compensation or, at Betgenius' election, an account of profits pursuant to paragraph 41.3 above.
An inquiry as to damages pursuant to Regulation 17 of the TSER and paragraph 41.2 above.
An order for payment of all sums found due upon the taking of any such inquiry and/or any such account, together with interest pursuant to paragraph 41.4 above.
Further or other relief.
Costs.
IAN MILL QC
TOM DE LA MARE QC
TOM CLEAVER
3 February 2021
Statement Of Truth
The Claimant believes that the facts stated in these Particulars of Claim are true. The Claimant understands that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
I am duly authorised by the Claimant to sign this statement.
Thomas Russell
Group General Counsel