The creation of price zoning, the economic or forced migration of supporters from or to different parts of the stadium, the removal of concessions . . . The least controversial aspect of the Membership Scheme for most people is probably the actual membership scheme itself – that is, joining a scheme that involves monthly payments spread over the year. But there are some hidden – and very possibly illegal – pitfalls in Hull City Tigers Ltd’s arrangements.
We’ve identified a number of issues within the Terms & Conditions of the Scheme. If you’ve decided to join, you might like to consider these before putting pen to paper. We’re raising these with the club ourselves; whilst they routinely do not respond to us, we have recourse with some of these issues to raise them with a higher authority, such as the Information Commissioner’s Office. It may help if individual supporters also speak to the Club if they share our concerns.
A membership scheme or not?
Despite the name, whether this is a genuine membership agreement is questionable. All the Scheme does is confer the right to attend certain matches. It confers no shares or rights of ownership in the Club, in contrast to, say, a social club where the club and its assets are owned by the members. It is more likely to be regarded as a contract for services, which is significant legally as that would bring into play consumer protection legislation and specifically the Consumer Rights Act 2015 (which is especially relevant in the section Monthly Direct Debit below).
Your personal information
The most worrying issue is that of your personal information, and it’s our belief that the Club may be acting in breach of the Data Protection Act and the associated Privacy and Electronic Communications Regulations.
If you’ve now had your pack from the Club you’ll see that in order to apply you have to sign the form agreeing to the separate terms and conditions. These T&Cs are not provided – you have to go online for them (bear in mind that not everyone has computer access). Buried within there are a number of sections regarding your personal data:
2.4 By submitting the Application a Member will authorise the Club to obtain and use information about that Member, any Additional Members and any Guests which is “personal data” within the meaning of the Data Protection Act 1998 for the purposes of marketing Club products, administering the Scheme and ascertaining the Member’s creditworthiness (including but not limited to delivering all or any of the information in the Application to any relevant hosting club or away venue or to any third party to whom the Club may assign, transfer or license the Club’s rights).
12.2 (4) the Applicant warrants that it has the permission of any other persons listed in the Application to disclose those persons’ personal information to the Club for the purpose of the Application;
12.2 (6) for the purposes of the Data Protection Act 1998 the Applicant authorises the Club to deliver to third parties details of the Applicant’s name and addresses and contact numbers (and any other such information listed in the Application) as described above and, if the Application is accepted by the Club and the Membership Agreement entered into, to use such information to administer and compile a register of members of the Scheme and to market Club products.
Both 12.4 and 12.2 (4) effectively places upon the Member the onus of guaranteeing the consent of the other persons listed in the application to the use of those persons’ personal data and gives authorisation to the Club to utilise that data. Yet the person giving consent and authorisation should be the individual whose data is being held and used; the Club cannot know whether permission has been sought and obtained from other people by the Applicant.
The Club also has to demonstrate that the individual has consented in order to use personal details for marketing. There’s a case to argue that if, as in this instance, the marketing consent is buried in a load of other conditions, the Club might struggle to prove that the consent was knowingly given.
The clearest way to obtain consent is to ask the customer to tick an opt-in box confirming they are happy to receive your marketing calls, faxes, texts or emails . . . Remember that the customer is entitled to withdraw their consent at any time (Guidance from the Information Commissioner’s Office)
The Club might argue that it has the benefit of the exemption under the DPA which allows the processing of personal data for the marketing of its own products and services, but there are two important limitations on that right. First, the exemption does not allow the transfer of data to third parties for purposes which at best are wide and unspecified. Secondly, the Club still has to follow the Privacy and Electronic Communications Regulations in respect of e-mail marketing, which requires at the very least what is known as the “soft opt-in” (which effectively allows marketers to operate on an opt-out basis provided a number of conditions are met). There is no legal definition of what constitutes consent, although it is clear from the EU legislation from which the DPA originates that consent must be “signified” in some way. It is also clear – and this is a key point – that the data subject (i.e. the customer) must have the right to refuse consent. Exemption or not, what the Club is doing in order to obtain “consent” is highly questionable, and there are examples of similar behaviour having been stated by the Information Commissioner’s Office to have been unlawful.
But in the case of Hull City Tigers Ltd, the situation is worse than just receiving marketing you do not want. Look again at the Conditions 12.2 (6):
for the purposes of the Data Protection Act 1998 the Applicant authorises the Club to deliver to third parties details of the Applicant’s name and addresses and contact numbers (and any other such information listed in the Application)
This Condition is undoubtedly a case of bad drafting, because the Club’s intention is clearly that third parties should have access to personal data for marketing purposes. The whole of Condition 12.2 is prefaced by the words, “For the purposes of the Application”, which means that all the authorities granted by Members under Clause 12.2 are for the purposes of the Application only. How then can the marketing of Club products be “for the purposes of the Application”?
The Club is requiring that you allow them to give your private information to any third party they care to give it to, though it doesn’t actually state the purpose for which it can be used. Do you really want that to happen? And, if you seek to withdraw your consent after having signed up to the Scheme, the Club could argue that under Condition 9.1(2) it has the right to terminate your membership”:
9.1 The Club may terminate the Membership Agreement immediately at any time by giving the Member written notice of termination if any of the following events occur:
(2) the Member, any Additional Member or any Guest fails to comply with any of the terms of the Membership Agreement, including these Conditions or the Ticket Rules (or, if such failure to comply is in the opinion of the Club capable of remedy, such failure to comply is not remedied within 14 days or such longer time as may be specified by the Club)
Monthly direct debit
When you bought a season pass, you knew that was it for the season. Not so with this Scheme:
5.2 Without prejudice to conditions 3.2 above and 13.1 below, the Club may change the Monthly Fee, the Rights and/or any part of these Conditions at any time by giving to the Member not less than 90 days’ prior written notice of any such change.
Whilst you would reasonably expect the cost to change after the season’s end, the Club says it can in fact up the cost of your direct debit at any time during the season. It’s not hard to imagine that when it discovers that – surprise, surprise – less people joined the scheme than it had expected, the Club might seek to make up the lost revenue by increasing its charge to members. Remember, it has nowhere said that it will keep to these pricing levels throughout the 2016/17 season. However, the right unilaterally to increase charges or make other changes to the membership agreement which the Club purports to reserve to itself is unlawful by virtue of the Consumer Rights Act 2015.
Did you think you were joining a Membership Scheme or were you buying something on credit? If the former, you might be surprised by condition 12.2 (1):
the Applicant authorises the Club to use the information provided in the Application to ascertain the credit worthiness of the Applicant and to deliver that information to the Club’s bankers or other agent for that purpose
In what way are you are entering a credit agreement with the Club? Paying a monthly membership wouldn’t normally lead you to believe you were taking out a credit agreement. What is the credit arrangement is that’s being supplied? If you cancel your Membership, could you be in breach of your credit arrangement and have a black mark put against your credit record? And if it’s not a credit agreement why is the Club checking your credit worthiness?
Actually, a “pay as you go” membership arrangement, under which the customer pays monthly for an ongoing service, is not regarded as “credit” for the purposes of consumer credit legislation. If the Club is saying that it is, not only is it in error but that would make the Membership Scheme documentation completely wrong because there are a plethora of strict and highly complex rules governing the content, layout and appearance of regulated consumer credit documentation with which this documentation does not even start to comply.
There are further surprises ahead, especially for members who live outside of Hull. So we have 4.4:
If the Member fails to pay any applicable Joining Fee, any Monthly Fee or any other sum due to be paid by the Member under the Membership Agreement on the relevant due date for payment, the Club may charge an administration fee of £25.
Administration fees like this can’t simply be plucked out of the air in order to be punitive, they have to be commensurate with the effort required by the Club to administer a missed payment. This level of payment appears excessive.
Then there are the charges for away match tickets in 10.4:
Unless the Member or Additional Member expressly notifies the Club that they wish to collect their away match tickets from the Stadium, the Club will post all away match tickets to the Member/Additional Member and the Member/Additional Member will incur an additional charge of £2.50 per delivery in respect of the Club’s postage costs.
This season the charges for postage are a reasonable 0.60p. Again, this large increase is hard to justify and is essentially a tax on people living outside Hull who follow Hull City away. Even worse happens if your card is stolen or lost and you don’t live in Hull:
13.21 If any Stadium Access Card is lost or stolen then the Member, Additional Member or Guest named on the relevant Stadium Access Card or Guest ticket (as the case may be) must visit the Stadium in person to provide the Stadium ticket office with written confirmation of that fact . . .
Why is the Club requiring people who may live hundreds of miles away to turn up in person to provide information in writing? Isn’t there a postal service?
Which matches do you get?
Under section 1 (Definitions) “the Matches” are:
the Hull City matches which a Member or Additional Member is entitled to attend at the Stadium depending on their Membership Level. For all Members and Additional Members this excludes any cup or friendly matches at the Stadium unless the relevant Member/Additional Member separately purchases a ticket to attend the relevant friendly match (each such ticket to be individually loaded onto the relevant Member’s/Additional Member’s Stadium Access Card).
The definition is silent on the status of play-off matches and European mini-league matches. Are these included or excluded? There is no definition of a “Cup” match. FA Cup? League Cup? European (sigh – remember those days?) competitions?
And finally . . .
As we’ve said, we’re asking questions of the Club about these issues. If you are thinking of joining the Membership Scheme, you might like to as well. Because another clause you’re agreeing to by signing is:
12.9 The Applicant acknowledges that the Applicant has had sufficient opportunity to obtain independent legal and financial advice in respect of the Application, the Conditions and the Brochure.
But, of course, the cost of taking legal and financial advice on these T&Cs would easily exceed the cost of a season’s membership. For the Club to try and hide behind this kind of weasel wording is, frankly, contemptible.