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Out-Law News 4 min. read

ASA rulings show that gambling brands can still utilise sports personalities

The UK Advertising Standards Authority (ASA) has determined that two gambling adverts featuring a pair of former England international footballers were not likely to appeal to under-18s

The rulings come just a month after the regulator upheld a complaint relating to a Twitter post published by gambling brand Ladbrokes which featured images of a number of current Premier League footballers. The ASA deemed that the tweet breached its new rules (36 pages / 646KB PDF), which require gambling companies to ensure that their ads are not attractive to children and young people.

Last week, the regulator ruled in favour of Paddy Power and rival gambling brand Sky Bet in two separate disputes over advertisements featuring retired top-flight footballers Peter Crouch and Micah Richards. Scott Oxley of Pinsent Masons said that the rulings are valuable in offering insight into how the regulator might apply the “strong appeal” test moving forward and shows that not all sports personalities are out of bounds. However, he cautioned that gambling brands still must “tread carefully to ensure that they only partner with those individuals who are not likely to be of appeal to under 18s.”

The ASA opened an investigation into a promoted tweet for Sky Bet that featured an image of Micah Richards after two complainants challenged whether the ad breached the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code). The Code, updated in October 2022, states that marketing communications for gambling products must not be likely to be of strong appeal to children or young persons, and must not include a person or character whose example is likely to be followed by them.

Defending their decision to feature Richards in the tweet, Sky Bet said it believed that the retired footballer was now more widely recognised as a football pundit. It added that it was highly unlikely that his former career generated sufficient residual appeal to give him strong appeal to children in 2022. The company said it had conducted a series of due diligence tests, including an assessment of Richards’ social media profile. Sky Bet said he did not have active public accounts on YouTube, TikTok or Twitch and that audience demographic data from his Instagram and Twitter accounts which showed that less than 5% of his followers on the site were aged 19 or younger.

While the company acknowledged that football was, by its nature, of strong appeal to children, they believed that this did not extend to televised pundit-based discussions around tactics and team performance – a fact it said was corroborated by Broadcasters Audience Research Board (BARB) data on audience demographics. Sky Bet added that Richards’ appearances on other TV shows, such as the sport-themed entertainment show A League of Their Own and Celebrity Gogglebox, were both usually broadcast after 9pm and not of strong appeal to children.

The ASA agreed with Sky Bet, explaining that there was nothing in the way Richards was presented in the ad itself that “would have strongly attracted the attention of under-18s or was likely to render him of strong appeal”. It also noted that Richards’ work as a columnist for the Daily Mail, his autobiography, and his work in ads for Auto Trader were all adult focused.

Oxley said that the ASA’s ruling highlighted to gambling brands the importance of researching and being fully abreast of all activities of the chosen sports personality outside of the context of the advertisement to gauge their likely level of appeal to under 18s. He added that Paddy Power also produced “a very detailed and lengthy response to the ASA’s investigation which included very strong evidence” in defence of their decision to feature Peter Crouch in two versions of a Christmas-themed TV advert in November 2022. The ASA said it received two complaints from viewers who claimed that the ads breached the UK Code of Broadcast Advertising (BCAP Code) because the former England striker was of particular appeal to under 18s.

The BCAP Code states that ads for gambling products must not be likely to be of strong appeal to children, aged 0-15), or young persons, aged 16 and 17 – especially by reflecting or being associated with youth culture. Such ads must also not include a person or character whose example was likely to be followed by those aged under 18 years or who had strong appeal to those aged under 18.

Responding to the complaints, Paddy Power said it believed that Crouch was more widely recognised as a football pundit and entertainer than as a former Premier League footballer, since his playing career ended in 2019. It argued that this this could not be described as a “recent” retirement, and cited the BCAP guidance on protecting under-18s, which states that long-retired footballers who were now known for punditry were of low-risk of strong appeal to children.

Paddy Power told the ASA that, once his international footballing career ended in 2010, Crouch played for Stoke City and then Burnley until his retirement. The company said that neither club was large enough to garner significant national or international supporter bases and were not likely to have a large following of young people outside of their local area. It said that Crouch’s partnerships with brands like Ted Baker, Carphone Warehouse and BrewDog demonstrated that he had an overwhelmingly adult commercial appeal.

A detailed assessment of Crouch’s social media carried out by Paddy Power prior to the broadcast of the adverts showed that did not have public accounts on TikTok, Facebook or Twitch, and that his Instagram account had not been updated since 2014. While Crouch did have a public account on Twitter with almost 1.5 million followers, demographic data from September to December 2022 showed that less than 0.5% of them were aged between 13 and 17.

Paddy Power also provided BARB data that they said showed that The Masked Dancer, on which Crouch appeared as a guest judge, was unlikely to make him of strong appeal to under-18s because the programme was of more appeal to older demographics. It added that a number of Crouch’s other TV appearances were on subscription-only platforms that were unlikely to appeal to children, and that just 0.1% of people who engaged on YouTube with his podcast, That Peter Crouch Podcast, were aged between 13 and 17 years.

Ruling in Paddy Power’s favour, the ASA said that the Christmas focus of the ad made it more likely to appeal strongly to under-18s. It noted, however, that the ad did not refer to aspects of Christmas, such as Father Christmas, that would have specifically appealed strongly to children. Carol singers depicted in the ad were all clearly adults and although the ad showed a Christmas tree, it was placed in the background of the scene and was not prominently positioned.

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