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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Future Investments SA v Federation Internationale De Football Association [2010] EWHC 1019 (Ch) (11 May 2010) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2010/1019.html Cite as: [2010] ILPr 34, [2010] EWHC 1019 (Ch) |
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CHANCERY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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FUTURE INVESTMENTS SA |
Claimant |
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- and - |
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FEDERATION INTERNATIONALE DE FOOTBALL ASSOCIATION |
Defendant |
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Thomas Raphael (instructed by Olswang LLP) for the Defendant
Hearing dates: 28th & 29th April 2010
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Crown Copyright ©
Mr Justice Floyd :
"All rights not expressly granted to OTI hereunder remain reserved to FIFA. As a matter of record it is noted, though, that the exclusive videogram production and exploitation rights, with the exception only of the English language rights for the USA and the English and French language rights are, with regard to the 1994 and 1998 Cup with the Consortium (internally OTI). With regard to the 1990 Cup a separate agreement with OTI has been reached. "
i) at paragraphs 10 and 11 of the Particulars of Claim, Future alleged that clause 1.3 was a warranty that (subject to the language exception) the exclusive rights to home videograms of WC98 were owned by OTI and that OTI's rights were not derived from the Agreement ("the Warranty"). It was said that the Warranty gave rise to a contractual obligation owed by FIFA to OTI, its licensees and assigns (including Future) not itself to produce or assert any entitlement to grant rights to any third party to produce or exploit home videograms of WC98.
ii) Alternatively, by paragraphs 12 and 13 of the Particulars of Claim, it was alleged that clause 1.3 acknowledged OTI's exclusive right to WC98 videograms worldwide subject to the language exception, and meant that FIFA was estopped from asserting (it did not say against whom) any rights by itself or licensees to produce such videograms. This was referred to as "the Acknowledgment".
iii) Alternatively, at paragraph 14 of the Particulars of Claim, it was alleged that Clause 1.3 granted OTI the exclusive right to produce such home videograms. This was called "the Transfer".
"FIFA has the right to enter into and perform its obligations pursuant to this Agreement and to grant to [IMG] all of the rights and licences granted therein."
"the moving images and footage of the official films of the historical FIFA World Cups … (excluding the official films of the 1994 and 2002 FIFA World Cups), currently operated and managed by Infront Sports & Media in Ipswich, England".
i) Paragraph 35 (formerly paragraph 40) now only alleges that entering into the FIFA-IMG agreement in 2004 was in conflict with the acknowledgment in the FIFA-OTI Agreement of OTI's (the Consortium's) existing rights. It repeats the allegation that the FIFA FEVER DVD was made in the United Kingdom by IMG and that its distribution was controlled by IMG from England.
ii) Paragraphs 37-39 and 47 describe the launch and distribution of the FIFA FEVER DVD. Paragraph 41 explains the revenues which Future and Future Panama have made from exploiting or licensing footage from WC98 since 1998. Paragraphs 42-44 allege that complaints by Future in 1998 concerning the release by FIFA of a 1998 official film led to requests thereafter to FIFA for such footage being referred to Future Panama until 2001. Paragraph 45-46 relate to the exclusive licensing by Future Panama in 2002 of footage of WC98 to a company called JMA for the production of a series of programmes called "Legends". Future acquired JMA in 2002. Paragraph 49 alleges that Future was hampered in its attempts to re-release Legends by licensing in the UK and other countries in 2005 because of direct competition from FIFA FEVER. Paragraph 51 alleges that licensees or potential licensees are likely to infer that Future has sold its rights to footage of WC98 to FIFA or FIFA's agents.
iii) Paragraph 52 then pleads as follows:
"In the premises, for the reasons set out in paragraphs 35 to 51 hereof, FIFA has by unlawful means intended to cause loss to Future. By the provisions of the FIFA-IMG Agreement, FIFA:
(a) had the intention to cause economic harm to Future ;
(b) acted unlawfully against IMG by inter alia:
(i) giving a warranty to IMG pursuant to clause 4.1 of the FIFA-IMG Agreement that FIFA had the right to enter into and perform its obligations pursuant to the FIFA-IMG Agreement and a right to grant to IMG all of the rights and licences granted therein contrary to the case in respect of WC98;
(ii) facilitating IMG's inclusion in England within the content of FIFA FEVER of WC98 Games by granting IMG access to FIFA Archive Material of WC98 Games held in England pursuant to clause 3.1 of the FIFA-IMG Agreement;
(iii) permitting IMG to compile content of FIFA FEVER in England from FIFA Archive Material which content included WC98 Games without first informing IMG that the rights to WC98 Games had first to be purchased from Future using the Footage Acquisition Budget pursuant to clause 3.1 of the FIFA-IMG Agreement;
(iv) giving its final approval to clause 2.1.2 of the FIFA-IMG Agreement to the content of FIFA FEVER chosen by IMG
1. being compiled in England
2. including WC98 Games; and
(v) permitting IMG to produce marketing materials relating to FIFA FEVER in England with references to WC98 Games without informing IMG of (iii) above; and
(c) that such unlawful action affected IMG's freedom to deal with Future in respect of inter alia rights to WC98 Games."
The Applications before the Court and the issues
Causing harm by unlawful means – law
"The essence of the tort therefore appears to be (a) a wrongful interference with the actions of a third party in which the claimant has an economic interest and (b) an intention thereby to cause loss to the claimant."
"The wrongful act did not interfere with the estate's liberty of action in relation to the plaintiff".
"It is true that the exploitation of the licence may not have been so successful commercially by reason of the infringement, but the contractual relations and their performance remain completely unaffected."
Jurisdiction - Law
""Good arguable case" reflects in that context that one side has a much better argument on the material available. It is the concept which the phrase reflects on which it is important to concentrate, i.e. of the court being as satisfied as it can be having regard to the limitations which an interlocutory process imposes that factors exist which allow the court to take jurisdiction."
Does Future's claim have a real prospect of success?
i) it would be a breach of the warranty in clause 4.1 of the FIFA-IMG Agreement (that FIFA had the right to grant licences) for Future to establish that FIFA did not have the right to licence IMG to include WC98 footage in FIFA FEVER;
ii) FIFA did not have the right to grant such a licence, because FIFA had already granted exclusive rights to OTI as evidenced by the Acknowledgment contained in Clause 1.3 of the FIFA-OTI Agreement;
iii) The breach of clause 4.1 of the FIFA-IMG Agreement was therefore a wrong, actionable at the suit of IMG, against FIFA;
iv) The effect of the wrong committed by FIFA on IMG was that IMG was reassured it had all the necessary rights, and did not need to seek any rights to WC98 from any other party, in particular Future;
v) In fact, Future do own the exclusive rights by virtue of the chain of transactions through Future Panama;
vi) IMG needed to obtain a licence from Future;
vii) Accordingly the wrong committed by FIFA against IMG caused harm to Future's economic interests, because IMG were thereby reassured that it did not need to obtain a licence from Future, and were thereby discouraged from applying to Future for a licence;
viii) IMG's freedom to enter into contractual relations with Future was thereby interfered with.
Jurisdiction
Place where the harmful event occurs.
Place where the damage occurred
"can be understood only as indicating the place where the event giving rise to the damage, and entailing tortious, delictual or quasi-delictual liability, directly produced its harmful effects upon the person who is the immediate victim of that event".