This weekend the Rugby World Cup Final between England and South Africa will be watched by billions around the globe. Inside the Yokohama International Stadium, a capacity crowd of 72,327 spectators will watch the match. Tickets are already sold out. However, tickets costing £717 are being sold for £12,500 by ticket touts. Despite the zero-tolerance policy in Japan, the touts are certainly doing good business and making enormous profits.
Back in England, the challenge of tackling this problem is a continuous one. Football in particular has been involved in a never-ending battle. Since the advent of professional football, ticket touts have created an ongoing problem for clubs and official sellers alike. The criminal law has attempted to curtail these practices, with a specific focus on football, but “unofficial sellers” continue to be a drain on the industry, costing an estimated £1 billion in total transactional sales in 2017 .
Just try buying a football ticket for a Premiership game in high demand. The Liverpool and Manchester City match, the Merseyside derby, the Tottenham versus Arsenal game and the biggest one of all, Liverpool versus Manchester United. Ticket touts will charge astronomical prices and be selling them outside the grounds, via resale sites, through Social media, across the Internet and various other avenues. No matter what the authorities try, the results do not seem to change.
Yasin Patel, through this article will look at the history of ticket touting, the law, and then discuss the recent case brought by North Yorkshire County Council under section 90 of the Consumer Rights Act 2015, its repercussions and what next in the fight against touts on behalf of the spectator and fans. The article looks at the million dollar question: “How do ticket touts get away with it”?
History of Ticket Touting and Enforcement
In any entertainment industry the resale of tickets is a common and unavoidable part of the business. Original purchasers are no longer able to attend an event and wish to recoup their investment from an event that they will never experience. Where the supply of tickets does not outweigh its demand, it is rare you will see the touts interested. But where tickets are difficult to source or the demand is high, it is here that a tout makes their money. Purchasing the unwanted tickets and making a profit from a desperate punter who doesn’t want to miss out on the event in demand.
It is not genuine resellers of tickets who are the problem for organisations and enforcement agencies however. It is those who buy tickets in large sums, inflate prices to eye-watering sums and then resell them, often with misleading or patently false information regarding what the ticket enables the purchaser to do or see. The advent of technology has allowed professional touts to purchase tickets in bulk, often within milliseconds of the tickets going on sale to the general public. By doing this, the tout has control of the supply of the ticket and therefore the demand, meaning they are able to play kingmaker when it comes to ticket price.
The level of protection for both consumer and ticket provider has changed over the last 20 years as the internet has become the prevalent market for resales. England and Wales introduced specific measures relating to football, with other sports introducing conditions attached to the tickets regarding resale. Scotland introduced ticket touting in a public place as an offence under Civic Government (Scotland) Act 1982. It is similar to the English legislation except for the requirement that there is reasonable cause for annoyance. Legislation in the rest of Europe, for example France and Norway, goes further and ban the resale of music tickets as well as sporting events .
As the law has changed, ticket touts have become more sophisticated in their methods to evade justice. It is common practice among touts to use multiple credit cards and identities to buy large numbers of tickets in bulk for popular events in order to maximise profits from a single event. This is known as “harvesting. ”
The Current Criminal Law
Section 116 of the Criminal Justice and Public Order Act 1994 states:
(1) It is an offence for an unauthorised person to—(a) sell a ticket for a designated football match, or
(b) otherwise to dispose of such a ticket to another person.
(2) For this purpose—
(a) a person is “unauthorised” unless he is authorised in writing to sell or otherwise dispose of tickets for the match by the organisers of the match;
(aa) a reference to selling a ticket includes a reference to—
(i) offering to sell a ticket;
(ii) exposing a ticket for sale;
(iii) making a ticket available for sale by another;
(iv) advertising that a ticket is available for purchase; and
(v) giving a ticket to a person who pays or agrees to pay for some other goods or services or offering to do so.
(b) a “ticket” means anything which purports to be a ticket; and
(c) a “designated football match” means a football match of a description, or a particular football match, for the time being designated for the purposes of his section by order made by the Secretary of State.
(2A) An order under subsection (2)(c) may designate descriptions of football matches wherever played or when played at descriptions of ground or in any area specified in the order.
There are a number of sections to highlight within the legislation. Football, in England, is by far the largest sport where tickets are bought, accounting for two thirds of all sports event tickets bought in the UK . It was therefore logical for legislators at the time to target the largest market in the England and Wales, which naturally attracts the most amount of ticket touting.
The second section to highlight is the breath of the offence. A sale is not actually required in order to be convicted of the offence; mere offering of sale would be enough for guilt to be found. This breath is clearly to ensure that the offence is deterred as much as possible and loopholes are not created which would allow the practice to continue.
Issues under the Criminal Law
Offenders have often gotten around a conviction by various means. A popular method was to charge a large amount for a nominal item, say a supporter’s scarf or beanie hat, which would then include a “free” ticket with it. The other major method of evasion was to provide services or goods in return for a ticket. Both methods avoid the offence as there is no sale. This was before amendments by subsequent legislation caught up with tout’s practices.
Despite the creation of a criminal offence, the practice of ticket touting is alive and in rude health. The deterrent factor an offence would usually carry is not having the intended effect on the industry. As mentioned earlier, in the UK alone, an estimated £1 billion a year goes into the “industry”. This, in large part, is down to the various internet services, such as Stubhub and Viagogo, which facilitate both the large scale of touting required in order to make a “viable business” and the anonymity in order to evade detection and apprehension by enforcement authorities.
The services that provided the platform for large scale touting operations to promulgate have been notorious for misleading information and advertising. Whether this is regarding the type of ticket being sold, the price or the “additional costs” that one would normally associate with airlines rather than sports events, the sites have been the ticket tout’s main revenue stream since their inception. It is through these practices that civil enforcement agencies have managed to crack down on touting, or at least have attempted to.
The Civil Law
There are a number of pieces of legislation with regard to ticket touting that have attempted to control and punish the behaviour. These include the Consumer Protection from Unfair Trading Regulations 2008 and Consumer Contracts (Information, Cancellation & Additional Charges) Regulations 2013, which provide consumers with higher levels of protection when it comes to the information which had to be provided to them before a purchase. The regulations were built upon by section 90 of the Consumer Rights Act 2015 (“CRA 2015”) which stated the following:
(1) This section applies where a person (“the seller”) re-sells a ticket for a recreational, sporting or cultural event in the United Kingdom through a secondary ticketing facility.(2) The seller and each operator of the facility must ensure that the person who buys the ticket (“the buyer”) is given the information specified in subsection (3), where this is applicable to the ticket.
(3) That information is—
(a)where the ticket is for a particular seat or standing area at the venue for the event, the information necessary to enable the buyer to identify that seat or standing area,
(b)information about any restriction which limits use of the ticket to persons of a particular description, and
(c)the face value of the ticket.
(4) The reference in subsection (3)(a) to information necessary to enable the buyer to identify a seat or standing area at a venue includes, so far as applicable—
(a)the name of the area in the venue in which the seat or standing area is located (for example the name of the stand in which it is located),
(b)information necessary to enable the buyer to identify the part of the area in the venue in which the seat or standing area is located (for example the block of seats in which the seat is located),
(c)the number, letter or other distinguishing mark of the row in which the seat is located,
(d)the number, letter or other distinguishing mark of the seat,
(e)any unique ticket number that may help the buyer to identify the seat or standing area or its location.
(5) The reference in subsection (3)(c) to the face value of the ticket is to the amount stated on the ticket as its price.
(6) The seller and each operator of the facility must ensure that the buyer is given the information specified in subsection (7), where the seller is—
(a) an operator of the secondary ticketing facility,
(b) a person who is a parent undertaking or a subsidiary undertaking in relation to an operator of the secondary ticketing facility,
(c) a person who is employed or engaged by an operator of the secondary ticketing facility,
(d) a person who is acting on behalf of a person within paragraph (c), or
(e) an organiser of the event or a person acting on behalf of an organiser of the event.
(7) That information is a statement that the seller of the ticket is a person within subsection (6) which specifies the ground on which the seller falls within that subsection.
(8) Information required by this section to be given to the buyer must be given—
(a)in a clear and comprehensible manner, and
(b)before the buyer is bound by the contract for the sale of the ticket.
(9) This section applies in relation to the re-sale of a ticket through a secondary ticketing facility only if the ticket is first offered for re-sale through the facility after the coming into force of this section.
With the birth of numerous second-hand ticket sites, the legislature has attempted to safeguard the interests of consumers and enable them to avoid being ripped off by a ticket tout. The legislation is clearly designed to regulate the sale of second-hand tickets, which is rather a juxtaposition to the criminal legislation which attempted to eradicate the process entirely. The subsequent years have had mixed reviews. Consumer groups, such as Fan Fair Alliance, have criticised the lack of enforcement by local authorities and the Competition and Markets Authority (“CMA”). The CMA, to its credit, did obtain an order against Viagogo stating that it must “overhaul how it does business” in order to come in line with the new legislative requirements under the CRA 2015. Others have been in praise of the legislation which simplified the expectation on second-hand sellers, making it easier for consumers to trust an online vendor. The first test-case dealing with breaches in the legislation was recently concluded, showing the progress that had been made since the criminal legislation was introduced. This was primarily dealing with the period during which a local authority should undertake enforcement proceedings, but the judgement provides guidance and judicial interpretation to the act. Section 90, and the sections regarding enforcement that follow, does allow for effective enforcement for specific situations in which secondary sellers are in breach of their obligation under the act. It is unclear, as yet, how easy this will be to do on a large scale for local authorities as the growth of online resales continues to grow.
A Collaborative Approach?
The continuing issue throughout touting as a practice is that the original provider is producing the event which others are then profiting from. The whole purpose of the legislation discussed throughout this article is to prohibit this profit. That has only gone to push sellers underground and hide behind a cloak of anonymity. There is a potential way that sports clubs and event providers have not considered and that is provide a framework to regulate the industry itself through partnerships.
After campaigning by Fan Fair Alliance, AEG ended its partnership with StubHub with regard to resale of tickets to the O2 and Wembley arena. They signed up to a capped-priced website where only consumers of tickets could resale. Ticketmaster, one of the UK’s largest provider of online ticket services, has created a capped resale service.
Rather than waiting for local authorities or the police to intervene in the process of touting, these organisations have taken regulation into their own hands to ensure large scale touts are unable to continue. Given the ease with which websites are set up and controlled, may it be best for others to follow suit?
Conclusion
This article has attempted to look at the recent developments in legislation with regard to ticket touting. The business should be stopped, there is no doubt about that. The way to go about this is not clear and there is disagreement among those within the industry as to the best methods to find a solution. Is it merely a case that local authorities should do more to enforce the current legislation or that the position is such that legislation does not have the necessary bite to make inroads to this huge industry? In either case, the industry would be better placed to take a more active role in policing ticket sales and have a greater say in how their tickets reach the secondary market. The football fans and spectators would be more grateful for that but when have they been the priority for the industry?