The Football Association made an admirable offer to refund ticket holders who were unable, as a result of a widespread Tube strike, to go to the England -v- Andorra World Cup Group Qualifier on Wednesday, 10 June 2009 (for the record, a comfortable 6 – 0 win for England). There was no question of the FA hiding behind any terms and conditions to deny refunds, even though it could easily have claimed that it was not at fault. 57, 897 England fans were, after all, able to get to Wembley to see the match.
This contrasts very favourable with the attitude of some of the clubs. In particular, Tottenham Hotspur were brought to task by the Office of Fair Trading for including in its terms and conditions a term that stated that tickets would not be refunded or exchanged in any circumstances. Not surprisingly, as soon as the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCRs) were brought to bear on this term, then this term was ruled unfair. The OFT took particular exception to the possibility that a fan unable to attend a match that had been postponed or rescheduled would not be able to claim a refund for a ticket to that match.
This is not an isolated case. Premiership clubs seem to have a problem remembering that they are not above the UTCCRs. Most recently, Man United were required by the OFT to amend their season ticket terms and conditions.
As an aside, we wonder if a competition law analysis could be applied to these facts. Certain fans appear to have a particular loyalty to their own football club. There is arguably not much cross-elasticity between clubs. It should be possible to define a relevant market as narrowly as, say, the retail market in tickets to matches of a particular Premiership club. A SSNIP test on an increase of season ticket prices, especially for the Big Four (Manchester United, Liverpool, Chelsea, Arsenal) could easily show dominance. Would unreasonably refusing refunds be an abuse of dominance?
The only reason this might be interesting is that under competition law the OFT can fine up to 10% of turnover. That’s a few millions for most Premiership clubs. However, under the Unfair Terms in Consumer Contracts Regulations, OFT can only apply to a court for an injunction to prevent a person using an unfair term.