The French Tennis Federation looses a set in the Roland Garros online betting issue

Following a legal action brought in Belgium under summary proceedings by the French Tennis Federation (FFT) against Ladbrokes, Bwin and Betfair and aimed at preventing Belgians from betting on the Roland Garros and French Master Series results, the first court Tribunal of Liège dismissed the action.

The FFT accused the defendants of not behaving as “prudent and diligent operators”, and of acts of parasitism (unlawful competition) .

Hence the FFT asked namely for:

• A total ban on online betting taken by the Belgian public on the upcoming 2008 Roland Garros tournament and the Paris Masters 2008

• The annulment and the reimbursement of bets already taken by Belgian residents

The defendants’ lawyers argued that gambling is a legal and ancestral practice in sport that has never been challenged until now. In addition, they exposed that their clients had enacted a code of conduct and respect corporate governance rules. They also explained that the defendants had set up individual measures to fight against bribery.

On April 28th, the Liege first instance court ruled in favour of the defendants.

It is to be emphasized that the litigation brought before the Belgian judge was international. Thus, the plaintiff was a sport federation which was granted powers from the French Government to organize tournaments in Paris while the defendants were companies that are not based in Belgium. That’s why the first question that arose in this case was the competence of the Liège first instance court. The judge grounded its decision on article 5.3 of the European regulation 44/2001, which provides that “A person domiciled in a Member State may, in another Member State, be sued in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur”. It is not contested that regarding Internet matters, the place where the harmful event occurs is wherever a website is accessible. In order to establish the accessibility of the involved websites, the judge assessed several criteria including the available language (English is deemed to allow perfectly an access from the Belgian market), the targeted market (it appears that bets on the Belgian football league are possible) and the fame of the FFT tournaments in Belgium. Consequently, the Liège first instance court declared itself competent to rule in this case.

It is interesting to confront this reasoning with several decisions of the Paris Court of appeal (Cour d’appel de Paris, 4ème ch.A, 6 juin 2007, n°06/14.890). Indeed, the French court appears to adopt strict criteria to avoid a systematic territorial competence to the French jurisdiction. Thus, the judges expect a “sufficient, substantial and significant link between the activity and the harmful event.

First, the court, taking into consideration the corporate responsibility of the EU operators concerned and the procedures in place “preventing all anonymous bets, ensuring perfect traceability” concluded that these operators had behaved in a prudent and diligent manner. Interestingly, the judge also took into account “the various measures, namely for the protection of minors” implemented by Bwin, as well as its membership of “ESSA (“European Sport Security Association”) which aims to guarantee the integrity of sports betting offers and to keep sports honest and free from fraud”.

Secondly, the judges took into account the fact that the defendants did not use the names of the FFT tournaments in a promotional way. Indeed, it was considered that the “simple mention of the name of a sports event is a necessary indication for the online betting activity” which therefore “cannot be considered as an act of parasitism since its sole purpose is to let the player identify which sport event to place a bet on”.

The Belgian judge ordered the French Tennis Federation to pay €5000 per case for the recovery of legal costs.

It should be noted that the FFT is also facing an action from Bwin in the Paris high court. The latter will undoubtedly use this first victory to support its claim in these other proceedings.