Derby Day: The Fallon Injunction
At a time when sporting stars and other celebrities are increasingly applying to the courts for injunctive relief in respect of their private lives, it’s unusual to see a public figure on the receiving end of an injunction. Yet this was the fate suffered by Kieren Fallon recently when he was prevented by the courts from running in the Epsom Derby last month. No stranger to the courts, this was a sure reminder to Fallon, and to other sporting stars, that they do not operate above the general law.
In a two day flurry of activity at the High Court on 2 and 3 June 2011, an application for an injunction to prevent Fallon from breaching the terms of a Rider Retainer Agreement which he had entered into with Mr Vifa Araci, owner of the three year old colt, Native Khan, in April, was originally rejected by the court but in a dramatic turn of events was appealed and granted the following day.
The Rider Retainer Agreement obliged Fallon to ride Native Khan as and when requested by Araci (and not to ride another horse if so requested) over a period of one year. In return, Fallon was entitled to receive a retainer fee of £10,000 plus a number of additional benefits, some of substantial value. The sums involved might be surprisingly small to readers, but this kind of arrangement is not untypical in the world of racing where stables like to secure exclusive performance by their favoured jockeys. Araci had requested Fallon to ride Native Khan in the prestigious Epsom Derby on Saturday 4 June 2011. However, on Monday 30 May 2011, Fallon informed Araci by text message that he would not ride Native Khan and it became apparent that Fallon was intending, and had agreed, to ride a rival horse, Aidan O’Brien trained ‘Recital’.
On Wednesday 1 June 2011 Araci issued an application for an interim injunction at the High Court to restrain Fallon from riding a rival horse in breach of the Rider Retainer Agreement. The application was heard by Mr Justice MacDuff the next day but was refused on the basis that, amongst other things, there was a wider public interest in seeing Fallon, one of the best known flat racing jockeys in the UK, ride at the race meeting and that damages would be an adequate remedy for the breach of contract. On balance, the judge did not consider that it was within the court’s discretion to restrain Fallon from riding:
“Albeit not in the context of an employment case, an injunction here would be, for one short day, a restraint of trade and a prohibition on a major sportsman from carrying on his occupation. I say “one short day”; it is not just one day, it is Derby Day.”
Araci appealed the decision and the appeal was heard the following day, Friday 3 June, the day before the Epsom Derby. Lord Justice Jackson disagreed with Justice MacDuff, deciding that damages would not be an adequate remedy for Fallon being able to ride a competing runner; were Fallon to be victorious in riding Native Khan not only would damages be considerably complex to quantify, but the prestige associated with such a victory, obtained by Fallon or missed by Araci, would be equally immeasurable:
“The sole effect of the injunction, if granted, is that the Derby will take place without one major champion rider. This is unfortunate but does not materially detract from the event as a whole... I quite accept that the grant of an injunction would be a grievous blow for the defendant, but that would not be oppressive or unjust”.
In the event, the court’s decision may have been academic to the result. In the absence of Fallon riding either Native Khan or Recital, the top three runners at the Epsom Derby were Pour Moi, Treasure Beach and Carlton House. However, from the perspective of understanding the court’s approach to exclusive arrangements in sport, it is of wider interest and importance.
Whether it is in the context of a representation agreement for a sports star, a playing contract for on- field performance or a commercial rights deal, exclusivity will frequently be demanded of sportsmen as a deal-breaker. The rationale is obvious and rooted in commercial reality: if you pay significant amounts of money to someone to perform for you or promote your brand, or on the other hand expend a significant amount of effort trying to get them a deal in return for your commission, you expect exclusivity. It’s in this context that Araci was understandably perturbed by the prospect of Fallon riding another owner’s horse to victory in the Derby.
Of course, where the demands of exclusivity become susceptible to challenge are where the sports star becomes dissatisfied with the service delivered to him (typically in an agency and representation context) or disillusioned with his prospects of sporting success. In the first instance, there is a long line of litigation involving Wayne Rooney and Joe Calzaghe amongst others relating to the enforceability of exclusive agency agreements. In the other, which it would appear was the chief motivation for Fallon – to get a better, or more lucrative, ride – the courts have to analyse the balance between the degree of exclusivity demanded and the restraints that are placed on the sportsman’s ability to make a living as a consequence.The Fallon decision looks to have been the right one on the facts. Had Mr Fallon been allowed to ride Recital in complete breach of his obligations under the contract, the enforceability and worth of exclusive performance contracts within the world of sport could well have been called into question. As observed by Lord Justice Jackson, “There is nothing special about the world of racing which entitles the major players to act in flagrant breach of contract.” The fact that at first the injunction was refused indicates perhaps that Lord Justice Jackson had been unduly swayed by the public interest in seeing Fallon perform at an event of the stature of the Derby.
As an aside, it is worth pointing out that Araci was unable (and did not appear to attempt) to force Fallon to ride Native Khan at the Derby. Ageing rock fans won’t be at all surprised by this, knowledgeable of the 1960’s decision involving the band, The Troggs, where the court determined that it could not uphold contractual terms which amounted to requiring the band to use a particular manager (in that case Page One Records). So, while it is possible to stop someone from doing something in an exclusive arrangement, it is much more difficult to require an individual to perform a specific obligation. At this, the courts draw the line.
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