Blog Sports Law 25th Apr 2023

Sportspeople and advertising – a gamble worth taking or a recipe for an early bath?

In October 2022, the Committees of Advertising Practice (‘CAP’) updated the Advertising Codes to prevent gambling advertising that was likely to be of strong appeal to those under 18 years of age (the rule previously referred to “particular appeal”). There have now been a number of Advertising Standards Authority decisions that give advertisers an important steer on how that Code applies to the use of current or retired professional footballers.

The Rule and Guidance

CAP 16.3.12 stated that marketing communications for gambling must not be of strong appeal to children or young persons, especially by reflecting or being associated with youth culture. They must not include a person or character whose example is likely to be followed by those aged under 18 years or who has a strong appeal to those aged under 18.

The rule explicitly states: “Where appropriate steps have been taken to limit the potential for an advertisement to appeal strongly to under-18s, this rule does not prevent the advertising of gambling products associated with activities that are themselves of strong appeal to under-18s (for instance, certain sports or playing video games).”

The rule also explicitly refers to CAP’s published guidance. The guidance lists a number of “high-risk types of content that should be avoided”. Betting ads “on subjects like football” are said to be an activity that has an inherent strong appeal to under-18s.

Marketers must carefully consider their casting of persons to ensure they are unlikely to have a strong appeal to under-18s, including by assessing their roles or activities they are associated with, their personal profile including by reference to social media follower demographics, and the audience or audiences for the roles and activities a person is known for.

High risk persons include “UK footballers who play for top clubs, UK national teams or in high-profile competitions” and “Non-UK ‘star’ footballers particularly those at top European clubs”, and “Other prominent sportspeople involved in sports like cricket, tennis and rugby that, at the highest levels, have a significant national profile”.

Medium risk include footballers from outside the top-flight and retired footballers who have moved into punditry/commentary. These will be assessed on the basis of their social and other media profile.

Lesser risk include footballers at lower league and non-league clubs, footballers at lesser Euro/world clubs, long-retired footballers now known for punditry/commentary, and sportspeople involved in clearly adult-oriented sports (eg. darts, snooker, golf, horseracing, and motorsports).

ASA decisions

All of the recent decisions under CAP 16.3.12 and sportspeople concern the use of current or retired professional footballers.

The following have been found to have violated CAP 16.3.12:

  1. A Ladbrokes tweet containing an image reel of Philippe Coutinho, Jesse Lingard, and Kalidou Koulibaly with the text “Can these big summer signings make the question marks over their performances go away?”. As these were Premier League footballers who also played international football they were found to have a strong appeal to under-18s. It would have been acceptable for them to be used in a medium where under-18s were entirely excluded, but age verification and the advert only being targeted at over 25s on Twitter was based on self-verification and was therefore not sufficient. An argument that the advert was a brand engagement piece and did not link back to any betting site did not find favour.
  2. A Betvictor Facebook advert featuring Jordi Alba and Sergio Busquets playing for FC Barcelona with the text “Who is the most underrated player at the club you support?”. These were found to be current ‘star’ players with a high profile at a top European Club and therefore high risk. It would have been acceptable for them to be used in a medium where under-18s were entirely excluded, but age verification and the advert being shown at over 25s on Facebook was based on self-verification and was therefore not sufficient. An argument that the advert was merely to encourage user engagement and did not link back to any betting site was again virtually ignored in ASA’s ruling.

The action in both cases was simply to tell the advertiser that the advert must not appear in its current form, and not to include a person who had a strong appeal to those under 18 years of age. This perhaps shows a measure of latitude being extended to advertisers whilst the application of the new guidance is established.

Complaints against the following adverts under CAP 16.3.12 were not upheld:

  1. TV adverts for Paddy Power featuring Peter Crouch conducting a choir singing Christmas carols. Crouch had retired and had not played professional football since 2019. ASA found that meant he was not long retired, but most of his latter career included appearances as a substitute. By 2022/23 he was not of strong appeal to under-18s due to his playing career. In terms of his TV and media roles, Crouch did not have profiles on Facebook, TikTok, or Twitch and did not post on Instagram. He had a very small number of followers on Twitter who were aged under-18. His tv appearances and podcast were largely aimed at an adult audience. Although he was a panellist on The Masked Dancer, which attracted a significant number of under-18s, he was one of four panellists and had not been portrayed in a way that would lead to him being viewed in an aspirational or influential way by under-18s. The Christmas focus of the advert made it more likely to appeal to under-18s, but there was nothing in relation to Christmas that would have been of strong appeal to children, such as Santa Claus. The advert was not therefore of strong appeal to under-18s.
  2. A tweet for Sky Bet featuring an image of Micah Richards. Richards had not been a Premier League player since 2015 or an England player since 2012. He was more likely to be recognised as a sports pundit. Although live coverage of Premier League games on which he appeared would be of strong appeal to under-18s, the pundit-based discussion was less likely to have that appeal. He had appeared on A League of Their Own and Googlebox which were both post-9pm programmes with a primarily adult audience. He appeared on a CBBC programme, but only in a preview of the programme as the episode in which he appeared had not aired at the time of the advert. He was therefore unlikely to be of strong appeal to under-18s due to his TV profile. He wrote for adult focused publications, did not have accounts on Youtube, TikTok, or Twitch, and only had small followings of under-18s on Twitter, Instagram, and Facebook. The advert was not therefore of strong appeal to under-18s.

Lessons learned

  1. Unlike under the previous rule, the fact that an advert or personality equally appeals to adults is irrelevant: if it strongly appeals to under-18s the advert will fall foul of the rule. This places advertisers in a dilemma: the higher a particular person’s general appeal the more risky they are likely to be from an under-18 standpoint.
  2. Advertisers should carefully consider the career, profile, and social media activities of any sportsperson they wish to include in a gambling advert, and be prepared to justify their conclusion that a sportsperson is not of strong appeal to under-18s in considerable detail.
  3. Equally, sportspeople that wish to appeal to advertisers in this field should consider their media appearances and social media activities accordingly.
  4. Footballers are higher risk than other sportspeople. Current players at top clubs are higher risk than those who have retired. Pundits are lower risk. Adult oriented sports are lower risk.
  5. Distinctions between traditional adverts and user engagement posts are unlikely to find favour.
  6. Where a personality is high risk, under-18s will need to be excluded through robust age-verification, probably involving payment data or credit checking. Self-verification, or marketing data inferred from user behaviour will not be enough.

By Lewis MacDonald

Categories: Blog