DAZN Limited v Coupang Corp

The Fédération Internationale de Football Association Club World Cup 2025 (the ‘FIFA Club World Cup’) is a competition involving 32 of the best men’s football club teams from across the world, which took place in June and July this year. FIFA was the sole owner of the broadcasting rights, which it licensed to the DAZN group, of which the Appellant (‘DAZN’) is part, which in turn was authorised to sublicense them in different territories subject to certain conditions imposed by FIFA. The main business of the Respondent (‘Coupang’) is the operation of an e-commerce platform in the South Korean online market, broadly comparable to Amazon in its business model and market presence. It operates a streaming service similar to Amazon Prime called Coupang WOW. Coupang WOW subscribers have access to Coupang’s web-based video streaming service called Coupang Play.

The main issue in this appeal is whether a binding contract was reached between the parties by which DAZN granted Coupang co-exclusive live and video on demand (‘VOD’) broadcasting rights in South Korea for the FIFA Club World Cup. A trial of that question as a preliminary issue took place on 16 May 2025 before His Honour Judge Pelling KC sitting in the Commercial Court (‘the Judge’). In a judgment delivered orally on 19 May 2025 and approved in written form the following day (‘the Judgment’) he held that a contract had been concluded by emails sent on 27 February 2025 and 3 March 2025, set against the background of communications between the parties by WhatsApp messages and conversations, and that Coupang was entitled to specific performance. By an order of 20 May 2025 he granted declarations and injunctive relief designed to protect Coupang’s ability to enjoy its broadcasting rights. We heard the appeal on 6 June 2025 shortly before the competition was due to start. At the end of the hearing we announced our decision that the appeal would be dismissed. These are my reasons for concurring in that decision.

The negotiations between the parties were conducted by John Lee and Danny Kim for Coupang, and Andrea Radrizzani and Charles Ma for DAZN. John Lee was Head of Sports for Coupang Play. Danny Kim was a member of the sports business team at Coupang. Andrea Radrizzani was a director of DAZN’s ultimate parent company. Charles Ma was Head of Media Rights for the Asia-Pacific region at DAZN. Mr Lee, Mr Kim and Mr Ma provided witness statements for the trial of the preliminary issues. Mr Radrizzani did not. There was also a witness statement from Warren Palk who was managing director of the DAZN channels business within the DAZN group and whose role included overseeing the sublicensing of sports broadcasting rights including those for the FIFA Club World Cup. He was not directly involved in communications with Coupang. The parties agreed that none of those who provided statements should be called as a witness to be cross-examined at the trial of the preliminary issues; each side was content to rely on the available written record of communications and the witness statements themselves.

Apart from the emails relied on as concluding the contract, the communications between the four protagonists were by WhatsApp, of which records were adduced for those between Mr Ma and each of Mr Kim and Mr Lee; and between Mr Lee and Mr Radrizzani. Those records do not, however, provide a complete picture, because they often have an entry saying “null” which indicates that there was a voice call or attempted voice call by WhatsApp. The records identify when such a voice call started, but do not of course capture the content of the conversation. There was also some evidence of the internal discussions or communications within DAZN, some of which was before the Judge but which was not all put before us. However the parties submitted that all the important written communications which were before the Judge were in the bundles before us or summarised in an agreed chronology.

The legal principles applicable were not substantially in dispute. In Smit Salvage BV v Luster Maritime SA (The Ever Given) [2024] EWCA Civ 260 [2024] 2 All E.R. (Comm) 504 | [2024] 2 Lloyd's Rep. 86, Males LJ said:

“18.

The principles to be applied in deciding whether parties have concluded a legally binding contract even though they recognise that some matters are still to be agreed are well established and were not disputed. The leading cases are RTS Flexible Systems Ltdv Molkerei Alois Mueller GmbH & Co KG [2010] UKSC 14, [2010] 1 WLR 753, Pagnan SpA v Feed Products Ltd [1987] 2 Lloyd’s Rep 601, and Global Asset CapitalInc v Aabar Block Sarl [2017] EWCA Civ 37, [2017] 4 WLR 163.

19.

In summary, it is well established that the whole course of the parties’ negotiations must be considered; that it is possible for parties to conclude a binding contract even though it is understood or agreed that a formal document will follow which may include terms which have not yet been agreed; that whether this is what the parties intend to do must be determined by an objective appraisal of their words and conduct; and that the burden lies on the party asserting that such a contract has been concluded to establish that it has.

20.

There are well-known formulae which can be used to make clear that parties have not yet reached the stage of a binding contract, such as ‘subject to contract’ or, in a maritime context, ‘subject details’ or ‘fixed on subjects’, but the absence of such terms (which were not used in the present case) is not decisive. All depends on the parties’ words and conduct towards each other, considered in their context.”

Four aspects of these principles merit further observation. The first is the particular importance of the requirement that the Court should look at the whole of the negotiations between the parties, both before and after those which are said to constitute the making of a binding contract. In Global Asset v Aabar, Hamblen LJ said:

“28.

It is well established that when deciding whether a contract has been made during the course of negotiations the court will look at the whole course of those negotiations –see Hussey v Horne-Payne (1878) 4 App Cas 311.

The rationale identified in [30] applies equally to the converse. Focusing on one part of the parties’ communications in isolation, without regard to the whole course of dealing, can give a misleading impression that the parties had not reached agreement when in fact they had.

As Longmore LJ observed in GNER v Avon Insurance [2001] 2 Lloyd’s Rep 649 at [29], a focus on what the parties have said after the moment at which it is contended that a contract was concluded may be very relevant to whether a term has been agreed. It may equally be very relevant to whether a concluded contract has been made. This is because, in the memorable phrase of Bingham J in Pagnan, the parties are the masters of their contractual fate in deciding what terms they regarded it as essential should be agreed in order for a binding agreement to come into effect (see Lloyd LJ in Pagnan at p. 619 RHC at (6)). If subsequent communications show that the parties considered themselves to have made a binding agreement notwithstanding that further terms remained to be agreed or a further document executed, that is powerful evidence that such a binding agreement was made.

Secondly, where the parties have agreed that there will be a subsequent formal written contract, the question of whether their agreement is subject to contract, in the sense that they do not intend it to have legal effect unless and until such a formal contract is signed, will be heavily dependent on whether they have agreed all the terms which they regard as essential, or whether there is to be left to the subsequent contract agreement of terms which the parties regard as significant to their rights and liabilities. This too is an aspect of the principle that the parties are the masters of their contractual fate. Two cases illustrate this approach. In British Steel Corporation v Cleveland Bridge and Engineering Co Ltd [1984] 1 All ER 504, Robert Goff J held that no contract had been concluded when it was contemplated that it would be subject to standard terms but without agreement on whose terms, and the standard terms of the parties contained very different liabilities for defective goods and delay. By contrast in Immingham Storage Company v Clear Plc [2011] EWCA Civ 89, 135 Con LR 224, this court upheld an agreement in which there was to be a subsequent formal contract but the parties had agreed “all the terms of any significance to a contract of the type under consideration.” David Richards J, giving the judgment of this court, said at [26]:

“[26] These factors point, overwhelmingly in our judgment, to an intention to create a contract if the claimant accepted the defendant’s offer. Set against those factors, the provision that a ‘formal contract will then follow in due course’ does not indicate that the claimant’s acceptance of the signed quotation will be no more than an agreement subject to contract. It is, as stated by Parker J in Von Hatzfeldt-Wildenburg v Alexander [1912] 1 Ch 284 at 289, [1911–13] All ER Rep 148 at 151, ‘a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through’”.

Thirdly, in construing written communications between the parties, it is important to recognise that business people conducting commercial negotiations will often not use the precision of language which lawyers aspire to in contract drafting. Their language may be imprecise, ungrammatical and impressionistic. Their communications must be interpreted by reference to the substance and sense of what is said, not by the kind of intense examination of the words, syntax and grammar to which a contract carefully drafted by lawyers may be subjected.

Fourthly, it will be relevant if the parties’ negotiations take place in a context where performance of any agreement reached is urgent. If so, that makes it more likely that the parties would wish to be bound notwithstanding that further details may remain to be agreed or a formal contract drawn up.

The relevant communications are set out in the following table, in which I have highlighted in bold what I consider to be the most important parts of the exchanges, and numbered the entries for ease of subsequent exposition. The emails which the Judge held concluded the contract are at entries 19 and 25.

Grounds 1 to 3 challenge the Judge’s conclusion that a contract was concluded by the emails of 27 February and 3 March 2025. Ground 1 is that the 27 February email does not amount to a contractual offer because it does not objectively demonstrate an immediate willingness to be legally bound upon acceptance. Ground 2 is that the 3 March email was not an unqualified acceptance. Ground 3 is that there was no intention to create legal relations by the exchange of emails because any agreement was subject to contract with the parties anticipating a formal agreement to be drafted and signed thereafter. The arguments on each ground overlapped. I deal with them below by first identifying my own analysis of the communications as a whole before addressing the grounds individually. It is important to note that it is no part of DAZN’s case on appeal that there was insufficient agreement on essential terms so that any concluded agreement would have failed for uncertainty. The challenge on appeal is limited to whether there was an offer, whether there was acceptance and whether there was an intention to create legal relations by any such offer and acceptance. Nor was it any part of DAZN’s case on appeal that Mr Radrizzani did not have authority to contract on behalf of DAZN or that Mr Ma did not have authority to do so (although the latter point was argued unsuccessfully before the Judge).

Grounds 4 and 5 are alternative grounds advanced only if the challenge to the existence of a concluded contract failed. They seek to challenge the terms of the injunctive relief granted by the Judge.

Applying the legal principles which I have identified and looking at the communications as a whole, it seems clear to me that the parties had reached an agreement by which they intended to be immediately and legally bound by the exchange of the emails in question. That is supported in particular by the following.

By the time the email of 27 February 2025 came to be sent by Mr Kim of Coupang to Mr Radrizzani of DAZN, Mr Radrizzani had asked whether Coupang were going to make an “offer” and Mr Lee had assured him they would (entry 11). Mr Radrizzani had encouraged Mr Lee to think that Coupang would be able to get the rights for US$1.7 million which he would convince Mr Palk was sufficient (entries 13 and 14). Mr Lee was given until 27 February to make a final decision on an offer (entry 14). By that stage, according to Mr Lee’s witness statement which was not contradicted by any evidence from DAZN, Mr Radrizzani and he had reached an agreement in principle on the essential terms of the deal as well as other more minor terms. What remained outstanding was agreement on the price. On 27 February Mr Lee communicated Coupang’s offer of US$1.7 million to Mr Radrizzani in a voice call (entry 15). At that stage all that remained was for Mr Radrizzani to confirm DAZN’s agreement following an internal call “to discuss and confirm” the following morning (entry 18).

The 27 February email then sets out a summary of the deal terms. It is significant that it does so, and does so in the form of an email, both of which suggest a formalisation of the position. Mr Lee’s uncontradicted evidence was that it is common in the industry to reach an agreement on the terms of a deal orally or informally by WhatsApp and then follow it up with a more formal step in an email. This was the first communication between them by email about the deal. The words “proposal….which captures our intention” for acquiring the rights would have been understood as meaning the offer, which Mr Radrizzani had been asking for and Mr Lee had been promising, confirming the “final decision” from Coupang conveyed in a voice call shortly before hand. Indeed the 27 February email was described as an offer in Mr Ma’s formal email response on 3 February, the following Monday (entry 25), to which all four protagonists who had been involved in the negotiations were party.

By the stage that the 3 March email was sent, Mr Lee had been told by Mr Radrizzani that he and Mr Palk wanted to work with Coupang and that “an official feedback” would be given on that Monday (entry 20), so that other bidders could be “inform[ed] properly” which must have meant and been understood to mean that the official feedback would conclude things in favour of Coupang to the exclusion of the other bidders. Late on the Friday Mr Lee had been told by Mr Ma that the deal was now “secure[d]” with Coupang (entry 21). Mr Radrizzani had confirmed to Mr Ma that he could confirm the deal with Coupang (entry 22). Mr Radrizzani had confirmed in a voice call to Mr Lee that the “deal is….confirmed” (entry 23). There can be little doubt that the email saying “we will accept Coupang Play’s offer” was intended to be a formal acceptance of the offer, and indeed Mr Ma described it immediately after it was sent as “an email to formalise our acceptance” (entry 26).

The subsequent communications confirm that both sides thought they had reached a binding concluded agreement. Mr Lee responded by email the same day referring to the hard effort by Mr Ma and Mr Radrizzani to make the deal “happen” and looking forward to “working on the project” (entry 27). This language and tone of mutual congratulation is redolent of conclusion of a contract and moving on to its implementation. When Mr Radrizzani first raised the possibility of an issue arising from a rival bid of $3.5 million on the afternoon of the Tuesday 4 March, he told Mr Lee that he was working internally for DAZN to “stay committed in what agreed” (entry 30), indicating that he thought DAZN was already committed to something which had been agreed. When Mr Lee responded that “the deal was finalised” Mr Radrizzani did not disagree; on the contrary he indicated that that too was his view by responding “I know” (entries 31 and 32). When Mr Radrizzani said that it was important that he had asked Mr Ma to confirm by email the previous day (entry 33) he was recognising that the formal confirmation by email on 3 March was important in demonstrating that the deal with Coupang was finalised. On 12 March Mr Radrizzani said he regarded the deal with Coupang as having been done and confirmed the previous week (entry 49). On 13 March Mr Ma described the deal with Coupang as “a closed case” (entry 52). When Mr Lee told Mr Radrizzani that Coupang would have to take legal action if the DAZN senior management did not stick to the deal, Mr Radrizzani did not suggest that there could be no basis for legal action, but on the contrary responded “I understand” (entry 55) indicating his understanding that there existed a binding legal agreement which Coupang could take legal action to enforce.

Ms John KC submitted that the messages at entries 36 to 38 were inconsistent with such a view because Coupang would not be saying that they would not publish any marketing without letting DAZN know if they already thought they had a contract permitting them to market. This is a false point. Coupang were telling DAZN that they would keep them informed, as would be understandable between parties who had co-exclusive broadcasting rights. More significant is that at entry 37 Mr Ma was suggesting that Coupang should get on with marketing as soon as possible without waiting for the finalisation of a long form agreement, which is only consistent with his view being that a binding contract was in place. Marketing would not be appropriate if the agreement was thought to be subject to contract; on the contrary Mr Ma would in those circumstances be expected to respond that marketing should wait until a formal contract was signed. Entry 45 is more readily to be interpreted as Mr Lee seeking agreement to commence promotion before execution of a formal contract, but that is consistent with politeness between two holders of co-exclusive rights for whom promotion activities in South Korea might need to be coordinated, and caution in circumstances in which the non-essential terms as to promotion might be the subject matter of wording in the final signed agreement as a result of FIFA intervention.

I detected three aspects to Ms John’s arguments on ground 1 in support of the submission that the 27 February email lacked the necessary quality of an offer which was capable of being accepted so as to give rise to a concluded contract. The first focussed on the language of “an intention” to acquire the rights, and involved a submission that a party stating an intention in the future is not to be taken as indicating an immediate willingness to be bound. This is not a sensible or fair reading of the email as I have explained. The email as a whole is not couched in perfect idiomatic English but it must be remembered that Mr Kim is a native of South Korea whose first language is not English. Nevertheless its sense in context is clearly conveying a formal contractual offer, and indeed it was treated as an “offer” in the email from DAZN purporting to “accept” it as an offer.

The second aspect focused on the words “we are … eager to move on to the contractual phase so that we can start planning on content utilisation.” Ms John submitted that this meant that what was being sent was a proposal for consideration by DAZN, following which the parties would thereafter move to the stage of deciding whether to enter into a contract. As Ms John accepted, this overlapped with her argument on ground 3 that any agreement was subject to contract. However it again fails to take account of the sense of the whole paragraph and the context. What Mr Kim said was:

“We are very excited to land this new deal with you, and eager to move on to the contractual phase, so that we can start planning on content utilisation. We look forward to hearing back from you soon.”

He looks forward to hearing back soon, meaning hearing back with an acceptance of the offer. He is saying that it is then, upon acceptance, that they will be able to start planning on the content utilisation because they will be in the “contractual phase” which he is eager to move on to by hearing back soon. He is saying that Coupang are very excited to land the new deal, which obviously does not mean they have already done so but means they are excited to do so by hearing back soon with an acceptance of the offer. That will be when they will have landed the deal. All of this suggests that the “contractual phase” most naturally means the contract having been concluded by acceptance of the offer, not some subsequent stage after acceptance of the offer. This must have been how it was understood by Mr Radrizzani and Mr Ma because of their reaction after the rival bid issue had arisen which indicated their view that a binding contract with Coupang had been concluded. The very fact that it is couched in the language of contract, not merely agreement, shows an intention that if accepted it should have binding legal force.

The third aspect was to submit that the first two aspects of the email were at least a tenable reading of it; and that if there were any doubt about it, that was fatal to it being an effective offer because as Males LJ confirmed at [71] of Smit Salvage the burden is on the party asserting the existence of a contract to demonstrate that the parties’ exchanges evince an intention unequivocally to be bound. I do not read the email, in context, as being equivocal in either of the ways suggested.

The argument on ground 2 was that any acceptance in the email of 3 March was equivocal, but this rested on the wording “we will start contract drafting…” and was really an argument under ground 3 that any agreement was subject to contract. The language which preceded those words, in which DAZN said “we will accept Coupang Play’s offer” is entirely unequivocal.

There is nothing to suggest that these parties intended that the formal drafting of the contract was a necessary prerequisite to being legally bound by the agreed terms, and a considerable number of indicia to the contrary. They include the matters to which I have drawn attention in my analysis, of which I would highlight the following in particular:

It is for these reasons that I concurred in the decision to dismiss the appeal on grounds 1 to 3. They are substantially similar to those given by the Judge but I have preferred to express them in my own language and more fully than the Judge had time to do in his commendably clear and swift expedited Judgment. It was argued by Coupang that DAZN had failed to establish any of the flaws in the Judge’s reasoning which would be necessary to fulfil the well-known high threshold required before an appellate court should interfere with a lower court’s evaluative assessment of the evidence. I have not found it necessary to engage with those arguments because I have reached the same conclusion as the Judge on the written materials which were before him and us.

I agree with Lord Justice Arnold’s judgment on grounds 4 and 5.

I agree with the judgment of Popplewell LJ concerning DAZN’s grounds 1-3. In this judgment I shall consider DAZN’s grounds 4 and 5, both of which concern the prohibitory injunction granted by the judge.I shall express myself by reference to the position on the date when this Court heard the appeal, 6 June 2025.

The Judge gave his judgment on the preliminary issues orally at 2pm on 19 May 2025. After he had finishing delivering the injunction, he heard argument on the consequential orders which should be made and made rulings on certain points. He heard further argument the following morning, in particular concerning Coupang’s application for an injunction. He addressed that application in an extempore judgment he delivered during the course of the morning.

Neither party adduced any additional evidence with respect to Coupang’s application for an injunction, and so the judge only had the evidence adduced by the parties with respect to the preliminary issues. Nor did either party seek an adjournment for the purposes of adducing further evidence.

In his extempore judgment the judge first considered at [5]-[6] whether a prohibitory injunction was necessary at all. He acknowledged that, in many cases where a court has found an agreement to exist, all that is necessary is a declaration as to the terms of the agreement. In this case, however, the judge considered that an injunction was necessary because it was to be inferred from DAZN’s submissions that DAZN intended unless restrained by court order to act in breach of the agreement he had found to exist. This was to be inferred from its resistance to the making of any order that did not include a proviso that permitted certain conduct. Accordingly, an injunction should be granted to restrain DAZN from acting in breach of the agreement.

The judge then considered at [7]-[10] whether to include in the injunction, as requested by Coupang, a term prohibiting DAZN from providing the Club World Cup 2025 live and/or VOD broadcast feed for South Korea to any party other than Coupang or any platforms or services owned by DAZN. DAZN resisted any such term being included in the injunction, and in the alternative it proposed a narrower form of wording based on heads of terms which DAZN had used in the past. The judge held that the injunction should include the term requested by Coupang. The agreement between the parties did not incorporate DAZN’s heads of terms. Furthermore, the qualification proposed by DAZN would at least potentially defeat the co-exclusivity obligation in the agreement.

Finally, the judge considered more specifically at [11]-[13] whether to grant an immediate injunction which included the disputed term or to leave it to Coupang to make a further application for an injunction if DAZN did something which breached the co-exclusivity obligation. He concluded that he should grant an immediate injunction for two reasons. First, DAZN had inferentially made it clear what its intentions were. Secondly, the practical realities of the situation meant that the parties would have difficulty in getting before a judge with a further application in good time before the competition was due to start.

Accordingly, by paragraph 3 of his order the judge granted an injunction in the following terms:

“The Defendant shall be prohibited (whether by itself or by any person acting on its behalf) from taking any step in breach of the exclusivity obligations in the Contract, including by:

(i)

disposing of the Club World Cup 2025 live and/or VOD broadcast rights for South Korea, including by sublicence, to any party other than the Claimant; and/or

(ii)

providing the Club World Cup 2025 live and/or VOD broadcast feed for South Korea to any party other than the Claimant or any platforms or services, including any DAZN social media platforms, owned by the Defendant or its affiliates.”

Ground 4 is as follows:

“Injunctive relief based on improper reasons

In determining whether injunctive relief was necessary, the judge relied on alleged submissions by DAZN’s counsel which were simply not made. DAZN’s counsel corrected the record in the 20 May hearing but the judge maintained his decision without substantively altering his reasons.”

In DAZN’s supplemental skeleton argument and in her oral submissions, counsel for DAZN made it clear that, contrary to the impression conveyed by the way in which ground 4 is formulated, DAZN was not accusing the judge of improperly inventing submissions. Rather, DAZN’s case is that there was no evidential foundation for the judge’s inference that DAZN intended to act in breach of the agreement he had found to exist. Accordingly, DAZN contends that the judge was wrong to conclude that there was a threat by DAZN to act in breach of the agreement so as to justify the grant of an injunction.

Ground 4 was not strongly pressed in oral argument, and rightly so. DAZN contends that it is legally entitled to act in the manner restrained by sub-paragraph (ii) of the injunction even if the remainder of the judge’s order is upheld. Furthermore, counsel for DAZN made it plain during the course of argument that DAZN considers sub-paragraph (ii) to be commercially damaging to it because it would prevent DAZN from making the feed available on its YouTube channel. In short, it is plain that DAZN wishes to act in the manner restrained by sub-paragraph (ii) if it is entitled to do so. The real question is whether that would be a breach of the agreement, which is the subject of ground 5.

Ground 5 is as follows:

“Injunctive relief goes beyond enforcing the declared contractual terms

The relief granted goes beyond the broadcast rights which are expressly said in the Order to be the subject of the contract, and trespasses impermissibly on DAZN’s distribution rights (which are not identical to its broadcast rights) and are not the subject of the Contract set out in the declaratory section of the Order.”

In addressing this ground it is important to begin by noting that the judge found in his main judgment at [18]-[19] that the terms agreed by the parties addressed the essential terms of the contract although they left many details to be spelt out in a long-form agreement. There is no challenge by DAZN to the judge’s conclusion that the agreement he found had been made was not too incomplete to constitute an enforceable contract. No long-form agreement having been concluded, it fell to the court to determine such details in the event of dispute using well-established techniques.

For the purpose of ground 5, the key term which the judge found had been agreed was that DAZN would sublicense the live broadcast and VOD rights for South Korea co-exclusively with DAZN to the extent permitted by the licence granted by FIFA to DAZN. There is no dispute that “co-exclusively” means to the exclusion of third parties. Accordingly, DAZN does not challenge sub-paragraph (i) of the injunction.

DAZN’s objection is to sub-paragraph (ii) of the injunction, which it contends goes further than what was agreed. DAZN’s primary contention is that sub-paragraph (ii) is not justified at all. In the alternative, DAZN contends that the words “or any platforms or services, including any DAZN social media platforms, owned by the Defendant or its affiliates” should be broadened to include platforms or services operated by DAZN as well as those owned by DAZN. The correctness of these contentions depends on the ambit of the co-exclusivity that was agreed.

In considering DAZN’s contentions, a preliminary difficulty is caused by the absence of any definition of the terms employed by DAZN. It can be seen from ground 5 that DAZN distinguishes between “broadcast rights” on the one hand and “distribution rights” on the other hand. No attempt was made by DAZN either in its skeleton argument or in oral argument to define what it meant by “broadcast rights” and “distribution rights”, let alone what the distinction between them was. In European copyright law, a distribution right is normally understood to refer to issuing to the public copies of the protected work or other subject-matter. That cannot be the sense in which DAZN is using the term. In making this point I am not overlooking the fact that European copyright law is not necessarily the correct frame of reference given that we are concerned with rights licensed globally by FIFA and then sublicensed by DAZN to Coupang for South Korea.

There was no detailed agreement between the parties as to the precise ambit of “co-exclusively”, and accordingly the judge had to interpret that term of the agreement as best he could in the light of the admissible factual matrix. As I have explained, DAZN relied before him on heads of terms which it had previously used, but the judge held that those heads of terms were not incorporated into the agreement between the parties. There is no challenge by DAZN to that conclusion.

As I have also explained, counsel for DAZN made it clear that DAZN’s principal concern is to establish its entitlement to make the feed available by means of its YouTube channel. Coupang contends that that would breach its co-exclusivity under the agreement, whereas DAZN disputes this. By contrast, it is common ground that the judge’s order permits DAZN to make the feed available to users by means of DAZN’s app, which users must download from an app store to their mobile devices.

In addressing this dispute, this Court, like the judge, faces the problem that there is no evidence before the Court concerning DAZN’s YouTube channel. There was considerable debate before this Court as to whether this was a platform or service operated by DAZN. On the face of it, it is operated by YouTube. In general, content is uploaded by users to YouTube, but that obviously does not mean that they operate YouTube. Counsel for DAZN asserted that the position was different in the case of channels on YouTube, but was unable to point to anything to substantiate that assertion. I am therefore not convinced that DAZN’s alternative wording for paragraph (ii) would achieve DAZN’s objective.

When faced with this difficulty during the course of argument, counsel for DAZN attempted to meet it by reformulating DAZN’s proposed alternative wording so as to permit DAZN to provide the feed through its existing “distribution partners” and by submitting that YouTube was an existing distribution partner. Again, however, there was no attempt by DAZN to define the term “distribution partner”. Furthermore, in the absence of evidence as to the relationship between DAZN and YouTube, I have some difficulty in seeing why YouTube qualifies as a “distribution partner” of DAZN on any conceivable meaning of that term.

More fundamentally, DAZN’s case is based upon the proposition that both Coupang and DAZN are entitled to make the feed available via YouTube because that is permitted by the agreement as to co-exclusivity. It is common ground that YouTube makes content available free at the point of access to internet users all around the world, including in South Korea. Coupang contends that this is not permitted by co-exclusivity, because that would undermine Coupang’s plan to exploit its rights by means of its Coupang Play service, a paid subscription VOD service. Why should users pay to subscribe to Coupang Play in order to watch the Club World Cup if they can watch it on YouTube for free? The judge accepted this argument (although he did not refer specifically to DAZN’s YouTube channel in his judgment, it is clear from the transcript of the argument before him that he had it well in mind).

Counsel for DAZN submitted in oral argument that the judge was wrong because FIFA required its licensees to undertake, or at least permit, free-to-air broadcasting. This argument, which was not foreshadowed in either of DAZN’s skeleton arguments, does not appear to have been advanced before the judge. Nor were we shown the relevant terms of the FIFA licence. It is therefore not apparent that FIFA requires any more than free-to-air live broadcasting as opposed to VOD. Free-to-air live broadcasting does not necessarily undermine VOD subscription models, because it does not enable the viewer to watch whenever and wherever they want.

Accordingly, I conclude that DAZN has not established that the judge’s interpretation of the co-exclusivity term in the agreement was wrong. It follows that he was entitled to grant an injunction having the breadth of paragraph 3 of the order.

I agree with both judgments.