Last week, “Goat” (greatest of all time) Lionel Messi and star player Luis Suarez visited Hong Kong with their club, Inter Miami, and were supposed to have taken part in a friendly match with their team against the Hong Kong football team — but both players ended up sitting on the bench throughout the match.
Messi later excused himself by claiming that he was suffering from likely myalgia. Surprisingly, a magnetic resonance imaging (MRI) test did not show any injury. Messi’s absence from the pitch drew loud jeers and provoked a storm of criticism as many of his fans had bought expensive tickets mainly to appreciate his performance.
As a sponsored high-profile event, Messi or David Beckham, the owner of Inter Miami, should have handled the incident carefully by announcing the situation in advance of the game and by offering to refund the cost of the tickets and compensate fans for their expenses.
In a turn of events that has raised eyebrows, Messi participated in a friendly match in Japan three days after he had been scheduled to play in Hong Kong, a decision that has been perceived as dismissive toward his Hong Kong fanbase.
READ MORE: Hong Kong seethes, Messi plays in Inter Miami match in Tokyo
The handling of the situation by Beckham and the organizing body, Tatler Asia, has come under scrutiny for its seeming disregard for the expectations of ticket holders in Hong Kong and those of the local sponsors, including government departments. Despite the subsequent reimbursement of sponsorship funds, the mismanagement of fans’ expectations and sponsor relations has been noted as a significant professional misstep.
Section 13E of the TDO further prohibits traders from engaging in a misleading omission or hiding material information or providing ambiguous material information that induces the average consumer to make a transactional decision
The promotional posters and videos showing Messi and Suarez have caused ticket buyers to wonder whether they amounted to misrepresentations, violations of any legislation or a breach of contract. Despite such legal questions, many ticket buyers, regrettably, cannot afford expensive legal advice or to mount comprehensive civil litigation. As such, there is some urgency to review the legal system to see whether launching a class action lawsuit might be possible. A review of current legislation, different legal principles, and the mechanisms for bringing a class action are as follows:
Trade Descriptions Ordinance
Section 7A, Cap. 362 of the Trade Descriptions Ordinance (TDO) prohibits traders from supplying any consumer a service with a false trade description. Section 13E of the TDO further prohibits traders from engaging in a misleading omission or hiding material information or providing ambiguous material information that induces the average consumer to make a transactional decision. However, the TDO may not immediately assist the ticket buyers as the threshold is relatively high in view of the nature of the criminal sanction. More importantly, Messi has claimed that he suffered his injury after the tickets went on sale. I believe that the Hong Kong Police Force and Hong Kong Customs will take appropriate action to investigate if there was any violation against the TDO.
Principle of misrepresentation
Elements of a misrepresentation include the following: (a) there was an unambiguous statement of fact or law rather than opinion; (b) that statement of fact was false; (c) the misrepresentation directly or indirectly addressed the representee; (d) the representee has relied upon the misrepresentation, and that misrepresentation induced him/her to enter into the contract; and (f) the representee suffered loss from that misrepresentation. Besides, the degree of knowledge of the representer will determine whether the misrepresentation was fraudulent, negligent or innocent. If misrepresentation is proven, rescission of contract or tortious damages will be granted subject to the degree of fault. The relevant damages are also prescribed in the Cap 284 of the Misrepresentation Ordinance.
Undoubtedly, the initial promotions by Tatler Asia and Inter Miami were not false. However, where a statement is rendered false by a change in circumstances, there is a duty to disclose the change. A failure to do so will result in an actionable misrepresentation. Yet, evidence showing the change of knowledge as to the condition of Messi is needed.
Breaching contracts
A contractual party breaches a contract when, without lawful excuse, it fails to perform any of its contractual obligations. Such breaches of contract can be anticipatory or an actual breach. An anticipatory breach can be a renunciation, which means an express or implied intention to refuse to perform or the impossibility of being able to perform before the performance is due. An actual breach means a failure to perform when performance is due. Ticket buyers would have to build a case that Messi’s and Suarez’s participation in the match were one of the material terms that Tatler Asia breached.
Frustration arises when an unforeseen event, beyond the control of either party and not reasonably anticipated at the time of contracting, fundamentally changes the foundation of the contract or makes its performance physically or legally impossible
Frustration
Frustration arises when an unforeseen event, beyond the control of either party and not reasonably anticipated at the time of contracting, fundamentally changes the foundation of the contract or makes its performance physically or legally impossible. For frustration to occur, the intervening event must have a substantial impact on the performance of the contract, rendering it fundamentally different from what the parties had agreed to. Mere disappointment, hardship, or inconvenience would not be enough to establish frustration.
If frustration is determined, a contract is automatically terminated when frustration arises, releasing both parties from any further performance obligations. Neither party can unilaterally choose to keep the contract alive or revive it, and the court cannot intervene to maintain the contract or modify its terms to accommodate the new circumstances. However, since the doctrine of frustration only discharges parties from future performance obligations, any rights accrued prior to frustration remain enforceable. This rule sometimes leads to unfair outcomes, which have been addressed through common law developments and statutory provisions such as the Cap 23 of the Law Amendment and Reform (Consolidation) Ordinance.
Ticket buyers may argue that the purpose of the match was to showcase the performance of Messi or Suarez, and that the players’ absence from participating in the match rendered the contract frustrated.
Incidents
When the tickets for the match were on sale, the promotional posters and videos highlighted the expected participation of Messi and Suarez, particularly the former. The hype drew great attention and some 40,000 people bought tickets.
More importantly, on Jan 11, the host unit Tatler Asia posted on its Instagram account @tatlerhongkong: “Tatler Asia would like to assure all Tatler XFEST ticket holders that all Inter Miami’s star players, including World Cup-winning Argentina captain Lionel Messi, will be participating in the match against Hong Kong representative team on February 4, 2024, in Hong Kong. See you at the stadium!”
These promotions to a great extent misled the general public into buying tickets. Some fans of Messi even traveled from outside Hong Kong just to watch the match. Nevertheless, under the terms and conditions of the tickets, Inter Miami reserved the right to change the line-up at any time. In any large-scale sports competition, whether an individual athlete takes to the field depends on many factors, including whether the athlete is injured. Legally speaking, Inter Miami players did play the whole game despite the absence of Messi and Suarez.
The Consumer Council stated that the promotional materials for the exhibition match had clearly indicated that it would be led by individual players, so it was reasonable for consumers to expect the players would participate in the exhibition match
However, Inter Miami, knowing about the potential for Messi not to participate due to injury, should have disclosed the situation and discussed it with Tatler Asia. Alternatively, Tatler Asia should have checked with Inter Miami to find out about Messi’s condition from time to time.
Notably, Secretary for Culture, Sports and Tourism Kevin Yeung Yun-hung said that Messi’s inability to participate in the game was only confirmed 10 minutes before the game ended, while the sponsorship deal stipulated that Messi would be required to play for a minimum of 45 minutes.
The Consumer Council stated that the promotional materials for the exhibition match had clearly indicated that it would be led by individual players, so it was reasonable for consumers to expect the players would participate in the exhibition match.
Different incidents indicate that there might possibly have been a breach of contract or misrepresentation or frustration subject to further disclosure of evidence. Therefore, the Consumer Council recommended that fans who attended the match retain their tickets and receipts for future recourse.
Class action
The Consumer Council said on Wednesday morning that it had received a total of 629 complaints relating to this match, including 527 from local consumers and 102 from visitors. The total amount involved is HK$4,150,700 ($530,742). On average, each case involves an amount of approximately HK$6,599. The highest single case involves HK$24,224.
In this saga, individual ticket buyers can hardly force a more detailed disclosure or request compensation as they have very little bargaining power. Even if individual ticket buyers want to claim for their losses, the amount the can claim is likely to be HK$75,000 or below. The relevant lawsuits would be handled by the Small Claims Tribunal, without legal representation, while it would not be worth claiming for such losses in a district court with high litigation costs. Therefore, a class action would likely be needed.
The term “class action” refers to a lawsuit in which a group of individuals with similar claims can file a joint claim against the defendant. By pooling their resources, the plaintiffs are able to save on litigation costs. It is common to use class actions in the United States when the individual damages are insufficient to justify separate litigation, but the total damages are large.
Class actions require the plaintiffs to meet certain requirements, including: (a) the class must be so large that joining all members of the class in a single lawsuit would be impractical; (b) class members must have similar claims so that they can be tried together; (c) the class representative must be able to adequately represent the interests of the entire class.
Many regions, including but not limited to the Chinese mainland and the US, have long implemented class action mechanisms. In 2009, the Legislative Council Secretariat in Hong Kong researched class action mechanisms
If a class action is successful, the damages would be distributed among the class members.
Many regions, including but not limited to the Chinese mainland and the US, have long implemented class action mechanisms. In 2009, the Legislative Council Secretariat in Hong Kong researched class action mechanisms.
The Hong Kong Law Reform Commission published a report in 2012 recommending the introduction of the class action mechanisms in Hong Kong. The cross-sector working group established by the Department of Justice also commissioned a consultancy study in December 2020 to study such mechanisms in Hong Kong. Up to now, there have been no further developments.
In 2019, a similar incident happened in South Korea in relation to another “Goat”, Cristiano Ronaldo. The South Korean court ruled that two soccer fans who filed a lawsuit against the match organizer after Ronaldo did not play in a friendly during Juventus’ pre-season tour in Seoul were entitled to compensation. The court ordered the local agency that organized the match to pay both fans listed in the lawsuit because the agency had publicized that Ronaldo would play for at least 45 minutes, but he ultimately sat out the entire game. After the judgment, more than 100 ticket buyers filed lawsuits against the organizer of that match. The Seoul Central District Court eventually ruled that the organizer of the match should refund half the ticket price to each plaintiff and pay them an additional 60,000 South Korean won ($45).
READ MORE: Messi no-show fiasco: HK govt requires concrete back-up plan
Overall, introducing class action mechanisms would not only benefit consumers, but would promote fairness and good business practice. Currently, companies often take advantage of the fact that individuals considering lawsuits may lack the motivation or the funds to pursue a valid claim. Class action mechanisms would be able to greatly circumvent this barrier to justice. They would also uphold the key principles of consumer protection. Businesses are responsible for truthfully representing their offerings. When deficiencies cause widespread and comparable harm, affected parties deserve recourse as a group. Ultimately, class action mechanisms may strengthen deterrence against future misleading conduct, such as with this saga, and could help restore the public’s confidence that their rights and welfare are duly represented and protected under the law.
(*Note: The content of this article does not constitute legal advice and should not be relied upon in place of seeking detailed legal advice regarding specific cases. Nonetheless, any ticket buyer who believes that their rights have been violated can contact the author’s office for further referral.)
The author is a member Sha Tin District Council, an EMPA candidate of Tsinghua University, and a member of China Retold.
The views do not necessarily reflect those of China Daily.
