Newcastle replica kit injunction refused

12 Apr 2024

The Tribunal today rejected an application by Sports Direct for an interim injunction requiring Newcastle United Football Club to supply it with replica kit for the 2024/5 season.

Sports Direct argued that the club was dominant in the supply of Newcastle replica kit, and that refusing to supply that kit to Sports Direct was an abuse of that dominance; alternatively, that exclusivity arrangements the club had entered into with JD Sports were anti-competitive and therefore unlawful. It further argued that if it did not have supplies of the replica kit for the 2024/5 season, it would suffer harm that could not be compensated by damages.

Applying the principles in American Cyanamid, the Tribunal considered whether Sports Direct had established a “serious issue to be tried”, and found that it had not. It was not arguable that ceasing an existing supply arrangement was – of itself and without more – an abuse, even assuming dominance. In the present circumstances Sports Direct had a low expectation of continuing supply, and the new owners of the club were entitled to revisit the distribution arrangements for the club’s replica kit. The Tribunal further found that, if an infringement of the Chapter II prohibition was arguable, it could also be argued that the exclusivity arrangements the club had entered into were improperly collusive but, conversely, that absent an arguable claim in regard to the Chapter II prohibition, it could not discern any arguable infringement of the Chapter I prohibition.

Although that finding was sufficient to dispose of the application, the Tribunal went on to consider the remaining stages of the analysis in American Cyanamid. It concluded that neither party could be adequately compensated in damages in relation to the granting or not granting of the injunction, as the potential losses were material and difficult to quantity. Finally, it determined that the balance of convenience weighed against the granting of an injunction, in particular because it would disturb the business arrangements the club had put in place for the 2024/5 season.

The Tribunal indicated that it considered that its refusal of interim relief made the need for a speedy trial of the matter more urgent, and urged the parties to give careful consideration as to how quickly a trial could come on, focussing on the necessary (and not merely desirable) procedural steps in the run up to trial.

Alison Berridge appeared for Newcastle United, and Stefan Kuppen appeared for Sports Direct.