Kickoff clauses: navigating the legal field and negotiating contracts in the digital age
A recent Court of Appeal judgment, DAZN Limited v Coupang Corp. [2025] EWCA Civ 1083, not only ensured that the people of South Korea were able to enjoy coverage of the 2025 FIFA Club World Cup but also affirmed that correspondence via informal emails or WhatsApp messages can create a binding contract if the parties’ intention is to be bound.
Background
The case centred around whether a binding contract was reached between two companies, DAZN Limited (“DAZN”) and Coupang Corp. (“Coupang”), for the sub-licensing of rights to broadcast the 2025 FIFA Club World Cup. The Appellant, DAZN, is a sports entertainment broadcaster and the Respondent, Coupang, operates a South Korean e-commerce platform with video-streaming service.
Following DAZN being awarded the broadcasting rights, in early 2025 the Head of Sports at Coupang’s video-streaming service, John Lee, messaged one of the directors at DAZN’s parent company, Andrea Radrizzani, on WhatsApp to congratulate DAZN on securing the license. Mr Radrizzani thanked him, responding “Give me a few weeks and I think we can discuss something for Korea.” A series of calls and messages on WhatsApp were subsequently exchanged between Mr Lee and Mr Radrizzani, and their colleagues, Charles Ma (DAZN) and Danny Kim (Coupang). The correspondence resulted in essential contractual terms being discussed and then summarised in an email sent from Mr Kim to Mr Radrizzani, to which Mr Ma responded via email “I am pleased to inform you that we will accept Coupang Play’s offer for the FIFA Club World Cup 2025 we will start contract drafting and hope to share the draft for your agreement soon.”
Coupang argued that this correspondence resulted in the formation of a binding contractual agreement, such that Coupang had obtained the right to co-exclusively broadcast the FIFA Club World Cup in South Korea. DAZN argued a binding contract had not been agreed.
The High Court determined that a contract had been concluded and that Coupang was entitled to specific performance. The Court also granted declarations and injunctive relief designed to protect Coupang’s ability to enjoy its broadcasting rights. DAZN appealed both the substantive judgment and the relief ordered.
Court of Appeal ruling
The Court of Appeal unanimously dismissed both aspects of the appeal. Lord Justice Popplewell ruled on the substantive aspect of the case, confirming the High Court judgment that a contract had been concluded. In doing so, he emphasised four points, which reflect the need to view contractual negotiations within the circumstances in which they are made. First, courts must look at the whole of the negotiations between parties, including correspondence both before and after the negotiations said to form a binding contract. Second, where parties agree there will be a subsequent formal written contract, whether a binding agreement has in fact been reached prior to the signing of a formal contract will be “heavily dependent” on whether all terms which the parties regard as essential have been agreed. This principle was described as an aspect of parties being the “masters of their contractual fate.” Third, “that business people conducting commercial negotiations will often not use the precision of language which lawyers aspire to in contract drafting.” And, fourth, if negotiations are taking place in urgent circumstances, it is more likely that parties will wish to be bound.
The appellants, DAZN, had raised three grounds of appeal relating to whether there was (i) a contractual offer, (ii) unqualified acceptance, and (iii) an intention to create legal relations via email, given the parties anticipated a formal agreement would be signed. The Court of Appeal dismissed all three of these grounds. The most significant discussion was in relation to the third ground of appeal. Here, the Court looked to the witness evidence, which demonstrated that in the broadcasting industry negotiation by informal means, followed by formalisation by email, was common practice. The Court noted that the communication the parties had via WhatsApp demonstrated the essential terms of the contract had been agreed and there were “numerous indications the deal was considered to be concluded and finalised.” There was no indication in the parties’ correspondence that the agreement was subject to contract or anything equivalent (had there been, the decision is likely to have been different). In reaching this conclusion, the Court again emphasised that it is for the parties to determine which terms are essential for agreement.
Lord Justice Arnold provided the reasoning for the dismissal of the injunction appeal. The Court held that DAZN had failed to provide enough evidence to establish that the High Court’s interpretation of the contract was incorrect.
Comment
The Court of Appeal’s ruling in DAZN demonstrates the courts’ continuing emphasis on looking to the circumstances in which contractual negotiations are made and the parties’ intention within those negotiations, in order to determine whether agreement has been reached. Whilst contractual negotiations via WhatsApp may appear to be relatively informal, the Court relied upon the evidence of practices in the industry to inform its decision. This decision is in line with other previous decisions and in particular, RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH & Co KG [2010] UKSC 14, which also emphasised the need to consider the parties’ intention in the circumstances of negotiations. In practical terms, contracting parties need to be aware that contracts can potentially be formed by WhatsApp or by short email exchanges, in some circumstances even if the correspondence refers to signing a formal contract later.