ASA Rulings Give Context to ‘Strong Appeal’ Test for Gambling Ads Featuring Sports Personalities

February 14, 2023 | Advertising

UNITED KINGDOM (February 9, 2023) — Two ASA rulings have been published which provide some helpful context to the CAP Code and BCAP Code rule that gambling ads must not be likely to be of strong appeal to children or young persons. These rules were changed on 1 October 2022 from a ban on ads that were likely to have particular appeal to children or young persons, to this new, stricter test of ‘strong appeal’.

The ASA issued guidance at the time which listed the use of footballing personalities in gambling ads as a potentially low, medium, or high risk depending on the nature of the footballer (for example whether they are long-retired and now known for punditry or whether they are a UK footballer from a top UK club).

The two new rulings published by the ASA relate to the use of Peter Crouch and Micah Richards. The rulings give some helpful insight into how operators can stay on the right side of the rules when it comes to retired football personalities.

The Adverts

The first advert was a television advert for Paddy Power featuring Peter Crouch with the second was a promoted tweet for SkyBet featuring an image of Micah Richards.

Both Paddy Power and SkyBet argued that:

  • Peter Crouch and Micah Richards were both ex-professional footballers whose professional playing careers ended in 2019, with their England careers ending years prior. Both footballers had not played Premier League football for a number of years and had become better known as football pundits instead of players.
  • They carried out detailed assessments of the social media profiles of the players prior to publishing the adverts. Neither player had active public accounts on TikTok or Twitch (most commonly associated with young people), and Peter Crouch didn’t have an active public Facebook account and hadn’t updated Instagram since 2014. For the social media accounts they did have, SkyBet and Paddy Power were able to demonstrate that the players did not have a substantial youth following (for example, less than 1% of Micah Richards’ Instagram followers were 0-16 years and 2.19% were aged 17-19 years).
  • Other media appearances by both Crouch and Richards had a more adult audience demographic (and for example included TV shows that were scheduled after 9 pm). Micah Richards had appeared on one episode of a children’s television programme, but during a 3-minute cameo rather than as a recurring position, and the episode in which he featured had yet to air at the time of the ad.
  • Whilst they acknowledged CAP’s view that football is by its nature a strong appeal to children, they considered that any appeal would be unlikely to extend to the same degree to detailed pundit-based discussions around tactics and team performance.

In both cases, the ASA agreed with the operators that the players were now better known for their role as football pundits than football players and that the same strong appeal of live football to children was unlikely to extend to the pundit-based discussion that took place around the game. They also considered that Crouch and Richards’ social media profiles had a demonstrably small following of under-18s, and their other media work was adult-oriented and had a more adult audience.

What are the key Lessons?

Here are our key take-aways from the rulings:

  • Do not assume that any former player or sports personality will automatically fall outside the strong appeal category. Careful thought should be given to the specific history of the person, including when their playing career ended, how long it has been since they played a top-flight sport, and whether they had a prolific career with the national team which might give them a long-lasting appeal to young people way beyond the end of their playing career.
  • Be prepared to defend the selection using verifiable data. This data must include the social media following as a minimum, but should also consider the audience of any other media appearances.
  • Be cautious of anybody with an active presence on TikTok. This platform is known to have particular appeal to young people. Although the ruling did not expressly state that an active TikTok account would automatically bring someone within the strong appeal category, it was notable that both rulings highlighted that neither Crouch nor Richards had a presence on the platform.

By: Elizabeth Dunn.

SOURCE: Bird & Bird LLP / Lexology.

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