"(1) … agreements between undertakings, decisions by associations of undertakings or concerted practices which – (a) may affect trade within the United Kingdom, and (b) have as their object or effect the prevention, restriction or distortion of competition within the United Kingdom, are prohibited … (2) Subsection (1) applies, in particular, to agreements, decisions or practices which – (a) directly or indirectly fix purchase or selling prices or any other trading conditions …"
"Umbro have informed the OFT … that we will not withhold supply of or take any action to prevent the display/advertising or the sale of licensed football kit at whatever price you, the retailer may choose."
"The fact that there was a standard mark-up in this industry indicates that the parties had to be vigilant to avoid collusion"
"The discounting is now it appears … in JJB as well as sports division (20% off everything and across all brands) and S[ports] … S[occer] have gone a third of[f] in response"
"This [replica shirts at£30 ] is a direct attack at JJB, we must be seen to be competing in the Football market"
"agreed to sell all new Umbro licensed kits at£40 mens and£30 kids in line with the rest of the High Street."
"S[ports] Soccer agreed to increase the price of England (H) & (A) kits and for a set period of 60 days to maintain the prices of licensed kits (including G[oal] keepers/infant kit)"
"will revise their current pricing of jerseys to reflect a price point which falls in line with market conditions"
"450 In addition to Sports Soccer and Umbro, Allsports, Blacks and JJB also took part in an unlawful agreement relating to the price of the new MU home Replica Shirt. The OFT refers to the following matters: (a) As respects JJB, the fax of6 June 2000 from Mr. Marsh of Umbro to Mr. Draper of MU in which an assurance was given about future retail pricing of the MU home Replica Shirt, referred to specific assurances having been received from JJB as well as from Sports Soccer. Although Mr. Marsh in his witness statement claims that he was referring only to discussions that had taken place with retailers about the England replica shirts, the OFT nevertheless considers the reference to JJB in this context to be significant in relation to MU replica shirts. (b) As respects Allsports, the OFT refers to the exchange between Mr. Hughes and Mr. Draper of MU on the subject of appropriate pricing of the MU replica shirts, during dinner on the Golf Day on25 May 2000 ;... The OFT refers also to the reported comments by Mr. Hughes on2 June 2000 (to Mr. Ronnie) and on8 June 2000 (to the retailers meeting at his house) that 'he had been in conversation with Manchester United regarding the price of the home shirt to be launched on1 August 2000 '. (c) Further with respect to Allsports, at the meeting between Mr. Ronnie of Umbro and Mr. Hughes on2 June 2000 , Mr. Hughes is reported to have said that "he would call Dave Whelan of JJB and Mike Ashley of Sports Soccer to discuss the imminent launch of the Manchester United Home shirt", and that "if Umbro cannot ensure that the product will not be discounted it will affect Umbro re-signing the Manchester United deal". (d) As respects Allsports, JJB and Sports Soccer, Mr. Hughes of Allsports organised the8 June 2000 price-fixing meeting at which, the OFT is satisfied on the totality of the evidence (addressed in the following sub-paragraphs), an agreement was reached to retail at launch on1 August 2000 the MU home replica shirts at High Street prices. (e) Mr. Ashley of Sports Soccer plainly understood that the other attendees at the meeting had agreed to retail the MU home replica shirt at High Street prices. In substance, there is little difference between the accounts of the meeting given by Mr. Hughes of Allsports, Mr. Whelan of JJB, Mr. Ashley of Sports Soccer and Mr. Ronnie of Umbro (who met privately with Mr. Ashley shortly after the retailers' meeting). (f) On 9 June, Mr. Hughes of Allsports produced two significant internal memoranda which are contemporaneous accounts of what had transpired the previous day. These memoranda show that an agreement had been reached to retail the forthcoming MU home replica shirt at High Street prices. They state: 'MUTD Replica Shirt Launch1st August 2000 I have already told you that JJB are going at£39.99 on 1st August in adult sizes and Sport[s…] Soccer will also do that. After speaking to Tom Knight [of Blacks] this morning to appraise him of that information, he went on to say that he will be tactical in his pricing i.e.£39.99 where he is in proximity to a JJB or a Sport[s…] Soccer and£44.99 elsewhere. Now that we can do different prices at different tills around the company, I think that we should do the same.' ' Discussions with JJB and Sport[s…] Soccer 'In my absence you should continue any necessary dialogue with JJB and Sports … Soccer. JJB's Head Office number is 01942 221400 and Mike Ashley [of Sports Soccer] only operates from his mobile which is [ … ]'(C) The OFT is satisfied that this evidence sufficiently demonstrates that the parties agreed to retail both adult and junior replica shirts at High Street prices, given that£39.99 for an adult replica shirt and£29.99 for a junior replica shirt were known key price points. (g) The first internal Allsports memorandum cited above reveals also that Blacks was involved in the price-fixing arrangements with Allsports, JJB and Sports Soccer, Mr. Knight of Blacks having spoken with Mr. Hughes after the meeting on8 June 2000 . (h) The section of the Umbro May 2000 monthly management report, prepared by Mr. Ronnie on8 June 2000 after his private meeting with Mr. Ashley, referred expressly to an agreement having been reached on adult MU Replica Shirts involving JJB, Sports Soccer, Blacks, JD and Allsports. It said: 'There has been a major step forward in the retail price of England [and] the launch of Manchester United. JJB, Sports Soccer, First Sport, JD Sports and Allsports have all agreed to retail their adult shirts at£39.99 … Following a month of dialogue with all the above accounts, Umbro cannot allow our statement product to be discounted.' (i) Mr. Ronnie said that Mr. Bryan "(Umbro account manager for JJB) later reported to me that Colin Russell of JJB later commented to him that it was obvious that those present at the [8 June 2000 ] meeting were no longer "hands on" in the business, as the agreement should have covered all products". (j) All the relevant retailers, including Allsports, Blacks, JJB and Sports Soccer, retailed the MU home Replica Shirts (adult and junior sizes) at High Street Prices beginning on1 August 2000 , which is not consistent with competitive conditions. 451 In conclusion, the OFT is satisfied that at least Allsports, Blacks and JJB (together with Umbro and Sports Soccer) all agreed, in or around late May to early June 2000, to co-ordinate their pricing of the new MU home Replica Shirt that was launched on1 August 2000 . The arrangement between them was additional to the price-fixing agreement in respect of the England Replica Shirts that these parties adhered to beginning around the same time. 452 So far as Allsports and Blacks are concerned, the OFT notes that they both continued to sell the MU adult home Replica Shirts at High Street Prices uninterruptedly until at least late 2001. Further, the OFT notes that on24 October 2000 Allsports informed Umbro that their sales had dropped dramatically due to 'discounting by Sports Soccer/JJB'. The OFT regards this as continuing commercial pressure on Umbro. Nevertheless, the OFT finds in this decision only that their participation in the arrangement concerning MU home Replica Shirts extended until October 2000. At this time, Sports Soccer discounted the product."
"480 In the light of the totality of the evidence, and for the reasons given below, the OFT is further satisfied that Sports Soccer and Umbro were not the only Parties involved in unlawful agreements after the end of the key selling period following the launch of the MU home Replica Shirt in August 2000. The OFT finds that JJB at least, which was by a considerable margin the largest of the major retailers (and the most powerful vis-à-vis Umbro), took active steps which contributed towards the maintenance of High Street Prices on England and MU Replica Shirts during key selling periods through to the end of August 2001."
"3.(1) The Tribunal must determine the appeal on the merits by reference to the grounds of appeal set out in the notice of appeal. (2) The Tribunal may confirm or set aside the decision which is the subject of the appeal, or any part of it, and may – (a) remit the matter to the OFT, (b) impose or revoke, or vary the amount of, a penalty, … (d) give such directions, or take such steps, as the OFT could itself have given or taken, or (e) make any other decision which the OFT could itself have made. (3) Any decision of the Tribunal on an appeal has the same effect, and may be enforced in the same manner, as a decision of the OFT. (4) If the Tribunal confirms the decision which is the subject of the appeal it may nevertheless set aside any finding of fact on which the decision was based."
"173. The criteria of coordination and cooperation laid down by the case-law of the Court, which in no way require the working out of an actual plan, must be understood in the light of the concept inherent in the provisions of the Treaty relating to competition that each economic operator must determine independently the policy which he intends to adopt on the common market including the choice of the persons and undertakings to which he makes offers or sells. 174. Although it is correct to say that this requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors, it does however strictly preclude any direct or indirect contact between such operators, the object or effect whereof is either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market. 175. The documents quoted show that the applicants contacted each other and that they in fact pursued the aim of removing in advance any uncertainty as to the future conduct of their competitors."
"66. The case-law shows that, where a decision on the part of a manufacturer constitutes unilateral conduct of the undertaking, that decision escapes the prohibition in Article 81(1) of the Treaty (Case 107/82 AEG v Commission [1983] ECR 3151 , paragraph 38; Joined Cases 25/84 and 26/84 Ford and Ford Europe v Commission [1985] ECR 2725 , paragraph 21;Case T-43/92 Dunlop Slazenger v Commission[1994] ECR II-441 , paragraph 56). 67. It is also clear from the case-law in that in order for there to be an agreement within the meaning of Article 81(1) of the Treaty it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way (Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661 , paragraph 112; Joined Cases 209/78 to 215/78 Van Landewyck and Others v Commission [1980] ECR 3125 , paragraph 86;Case T-7/89 Hercules Chemicals v Commission[1991] ECR II-1711 , paragraph 256). 68. As regards the form in which that common intention is expressed, it is sufficient for a stipulation to be the expression of the parties' intention to behave on the market in accordance with its terms (see, in particular, ACF Chemiefarma , paragraph 112, and Van Landewyck , paragraph 86), without its having to constitute a valid and binding contract under national law ( Sandoz , paragraph 13). 69. It follows that the concept of an agreement within the meaning of Article 81(1) of the Treaty as interpreted by the case-law, centres around the existence of a concurrence of wills between at least two parties, the form in which it is manifested being unimportant so long as it constitutes the faithful expression of the parties' intention."
"282 However the beforementioned letter shows clearly that the German producers to which it referred … never at any time kept their dissatisfaction to themselves but told RT about it. 283 If an economic operator accepts the complaints made to him by another operator in connexion with the competition to which the products manufactured by the former operator expose the latter, the conduct of the operators concerned amounts to a concerted practice."
"98. As we have already stated in our interim judgment of8 August 2001 , we agree that the Director's concession that these proceedings are "criminal", for the purposes ofArticle 6 of the European Convention on Human Rights , is properly made: seeCase C-235/92 P Montecatini v Commission[1999] ECR I-4539 , paragraphs 175 and 176. That is particularly so since penalties under the Act are intended to be severe and to have a deterrent effect: see the Director's statutory Guidance as to the appropriate amount of the penalty , (OFT 423, March 2000) issued under section 38(1) of the Act. 99. The fact that these proceedings may be classified as "criminal" for the purposes of the ECHR gives Napp the protection of Article 6, and in particular the right to "a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law" (Article 6(1)), to the presumption of innocence (Article 6(2)), and to the minimum rights envisaged by Article 6(3) including the right "to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him" (Article 6(3)(d)). 100. In our view it follows from Article 6(2) that the burden of proof rests throughout on the Director to prove the infringements alleged. 101. However, as the Court of Appeal held in Han, cited above, to which we referred in our judgment of8 August 2001 , the fact that Article 6 applies does not of itself lead to the conclusion that these proceedings must be subject to the procedures and rules that apply to the investigation and trial of offences classified as criminal offences for the purposes of domestic law: see Potter LJ at paragraph 84, and Mance LJ at paragraph 88 of that judgment. 102. Neither the ECHR itself nor the European Court of Human Rights has laid down a particular standard of proof that must be applied in proceedings to which Articles 6(2) or (3) apply, and still less that the standard should be that of "proof beyond reasonable doubt", which is not a concept to be found in the domestic systems of many of the signatory States (see Sir Richard Buxton, cited above, at pp. 338 and 339). 103. In our view it follows that neither Article 6, nor theHuman Rights Act 1998 , in themselves oblige us to apply the criminal standard of proof as established in domestic law in cases where the Director seeks to impose a financial penalty in respect of alleged infringements of the Chapter I or Chapter II prohibitions under the Act. 104. In our view the standard of proof to be applied under the Act is to be decided in accordance with the normal rules of the United Kingdom domestic legal systems. Neither party has cited to us any decided domestic cases which suggest that, in circumstances such as these, the criminal standard should be applied, nor invited us to apply by analogy certain civil situations where traditionally the criminal standard of proof is required (e.g. committal proceedings). 105. Infringements of the Chapter I and Chapter II prohibitions imposed by sections 2 and 18 of the Act are not classified as criminal offences in domestic law, in contrast, for example, to the criminal offences created under sections 42 to 44. Under section 38(8), penalties are recoverable by the Director as a civil debt. Directions are enforceable by civil proceedings under section 34. In our view the structure of the Act points to the conclusion that under domestic law the standard of proof we must apply in deciding whether infringements of the Chapter I or Chapter II prohibitions are proved is the civil standard, commonly known as the preponderance or balance of probabilities, notwithstanding that the civil penalties imposed may be intended by the Director to have a deterrent effect. 106. We add that in many cases under the Act the factual issues before this Tribunal will often relate to such matters as determining the relevant market, whether dominance exists, and assessing whether conduct characterised as an "abuse" is economically justified. Issues of that kind involve a more or less complex assessment of mainly economic data and perhaps conflicting expert evidence. It seems to us more likely that Parliament would have intended us to apply the civil standard of proof to issues of this kind, rather than the time-honoured criminal standard of "proof beyond reasonable doubt". 107. In our view it follows from the speech of Lord Nicholls (with whom Lord Goff and Lord Mustill agreed) in Re H , cited above, at pp.586 to 587, that under the law of England and Wales there are only two standards of proof, the criminal standard and the civil standard; there is no 'intermediate' standard. The position is the same in the law of Scotland and Northern Ireland. Within the civil standard, however, the more serious the allegation, the more cogent should be the evidence before the court concludes that the allegation is established on the preponderance of probability: see Lord Nicholls' speech in Re H , citing notably In re Dellow's Will Trusts[1964] 1 WLR 451 , 455 and Hornal v Neuberger Products Ltd[1957] 1 QB 247 , 266. 108. Since cases under the Act involving penalties are serious matters, it follows from Re H that strong and convincing evidence will be required before infringements of the Chapter I and Chapter II prohibitions can be found to be proved, even to the civil standard. Indeed, whether we are, in technical terms, applying a civil standard on the basis of strong and convincing evidence, or a criminal standard of beyond reasonable doubt, we think in practice the result is likely to be the same. We find it difficult to imagine, for example, this Tribunal upholding a penalty if there were a reasonable doubt in our minds, or if we were anything less than sure that the Decision was soundly based. 109. In those circumstances the conclusion we reach is that, formally speaking, the standard of proof in proceedings under the Act involving penalties is the civil standard of proof, but that standard is to be applied bearing in mind that infringements of the Act are serious matters attracting severe financial penalties. It is for the Director to satisfy us in each case, on the basis of strong and compelling evidence, taking account of the seriousness of what is alleged, that the infringement is duly proved, the undertaking being entitled to the presumption of innocence, and to any reasonable doubt there may be."
" on the basis of strong and compelling evidence, taking account of the seriousness of what is alleged, that the infringement is duly proved, that undertaking being entitled to the presumption of innocence, and to any reasonable doubt there may be."
"(1) If it appears to a chief officer of police that the following conditions are fulfilled with respect to any person in his police area, namely – (a) that the person is a sex offender; and (b) that the person has acted, since the relevant date, in such a way as to give reasonable cause to believe that an order under this section is necessary to protect the public from serious harm from him, the chief officer may apply for an order under this section to be made in respect of the person. (3) If, on such an application, it is proved that the conditions mentioned in subsection (1) above are fulfilled, the magistrate's court may make an order under this section…"
"30. It should, however, be clearly recognised, as the justices did expressly recognise, that the civil standard of proof does not invariably mean a bare balance of probability, and does not so mean in the present case. The civil standard is a flexible standard to be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications of proving those matters: Bater v Bater[1951] P 35 , Hornal v Neuberger Products Ltd[1957] 1 QB 247 , and R v Secretary of State for the Home Department, Ex p Khawaja[1984] AC 74 . 31. In a serious case such as the present the difference between the two standards is, in truth, largely illusory. I have no doubt that, in deciding whether the condition in section 2(1)(a) is fulfilled, a magistrate's court should apply a civil standard of proof which will for all practical purposes be indistinguishable from the criminal standard. In deciding whether the condition in section 2(1)(b) is fulfilled the magistrate's court should apply the civil standard with the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them."
"55. I turn next to the Commission's views on the standard of proof. By way of preliminary I feel bound to say that I think that a "high civil balance of probabilities" is an unfortunate mixed metaphor. The civil standard of proof always means more likely than not. The only higher degree of probability required by the law is the criminal standard. But, as Lord Nicholls of Birkenhead explained in Re H (Minors) (Sexual Abuse: Standard of Proof )[1996] AC 563 , 586, some things are inherently more likely than others. It would need more cogent evidence to satisfy one that the creature seen walking in Regent's Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that it was an Alsatian. On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. But the question is always whether the tribunal thinks it more probable than not."
"[37] Having concluded that the relevant proceedings are civil, in principle it follows that the standard of proof ordinarily applicable in civil proceedings, namely the balance of probabilities, should apply. However, I agree that, given the seriousness of matters involved, at least some reference to the heightened civil standard would usually be necessary: In ReH (Minors) (Sexual Abuse: Standard of Proof )[1996] AC 563 , 586D-H, per Lord Nicholls of Birkenhead. For essentially practical reasons, the Recorder of Manchester decided to apply the criminal standard. The Court of Appeal said that would usually be the right course to adopt. Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are virtually indistinguishable. I do not disagree with any of these views. But in my view pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under s 1 apply the criminal standard. If the House takes this view it will be sufficient for the magistrates, when applying s 1(1)(a) to be sure that the defendant has acted in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself. The inquiry under s 1(1)(b), namely that such an order is necessary to protect persons from further anti-social acts by him, does not involve a standard of proof: it is an exercise of judgment or evaluation. This approach should facilitate correct decision-making and should ensure consistency and predictability in this corner of the law. In coming to this conclusion I bear in mind that the use of hearsay evidence will often be of crucial importance. For my part, hearsay evidence depending on its logical probativeness is quite capable of satisfying the requirements of s 1(1)."
"… But it is not an invariable rule that the lower standard of proof must be applied in civil proceedings. I think that there are good reasons, in the interests of fairness, for applying the higher standard when allegations are made of criminal or quasi-criminal conduct which, if proved, would have serious consequences for the person against whom they are made."
"90 It does not follow from this that a mere balance of probabilities suffices to justify the making of an order. Banning orders under section 14 (B) fall into the same category as antisocial behaviour orders and sex offender orders. While made in civil proceedings they impose serious restraints on freedoms that the citizen normally enjoys. While technically the civil standard of proof applies, that standard is flexible and must reflect the consequences that will follow if the case for a banning order is made out. This should lead the justices to apply an exacting standard of proof that will, in practice, be hard to distinguish from the criminal standard: see B v Chief Constable of Avon and Somerset Constabulary[2001] 1 WLR 340 , 354 and R (McCann) v Crown Court at Manchester[2001] 1 WLR 1084 , 1102."
"24.
"26. Lord Steyn accepted the principles set out in Lord Nicholls' speech above; referred to, presumably, the passage in Lord Bingham's speech in the Chief Constable of Avon and Somerset, but gave pragmatic advice to magistrates as how to apply the standard of proof in applications for antisocial behaviour orders."
"28. I understand that in many applications for care orders counsel are now submitting that the correct approach to the standard of proof is to treat the distinction between criminal and civil standards as 'largely illusory'. In my judgment this approach is mistaken. The standard of proof to be applied in Children Act cases is the balance of probabilities and the approach to these difficult cases was set out by Lord Nicholls in his speech in re H. That test has not been varied nor adjusted by the dicta of Lord Bingham nor Lord Steyn who were considering applications made under a different statute. There would appear to be no good reason to leap across a division between crime and preventative measures taken to restrain defendants for the benefit of the community and wholly different considerations of child protection and child welfare, nor to apply the reasoning in McCann to public, or indeed to private, law cases concerning children. The strict rules of evidence applicable in a criminal trial, which is adversarial in nature, is to be contrasted with the partly inquisitorial approach of the court dealing with children cases in which the rules of evidence are considerably relaxed. In my judgment therefore Bodey J applied the incorrect standard of proof in the case of re ET ."
"The difference of opinion which has been evoked about the standard of proof in these cases may well turn out to be more a matter of words than anything else. It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. Many great judges have said that, in proportion as the crime is enormous, so ought the proof to be clear. So also in civil cases. The case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil court, when considering a charge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion."
"55. Since the prohibition on participating in anti-competitive agreements and the penalties which offenders may incur are well known, it is normal for the activities which those practices and those agreements entail to take place in a clandestine fashion, for meetings to be held in secret, most frequently in a non-member country, and for the associated documentation to be reduced to a minimum. 56. Even if the Commission discovers evidence explicitly showing unlawful conduct between traders, such as the minutes of a meeting, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. 57. In most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence [7] of an infringement of the competition rules."
"JJB strongly denies the allegations that have been made against it in the Decision. The Decision relies on very little direct evidence against JJB. Where there is evidence that relates to JJB, there are serious questions as to its reliability, and it is contradicted by JJB's own evidence. It is intended that Mr. Whelan and Mr. Russell of JJB will give evidence at the hearing in order to demonstrate the falsity of the allegations against JJB. The Decision contains a very large number of allegations. This appeal notice does not seek to deal with each and every point with which JJB disagrees, but restricts itself, in accordance with the CAT Rules, to setting out a summary of the principal grounds for contesting the decision and a succinct presentation of the arguments supporting each of those grounds. The fact that the appeal does not expressly consider any particular point should not be understood as indicating that JJB necessarily agrees with that point. In relation to the Euro 2000 England Agreement, the Decision alleges that Messrs. Ronnie and Fellone telephoned each of the major retailers to make sure that they would price the England Replica Shirts at High Street Prices in the run up to and during England's participation in Euro 2000 and that these telephone calls resulted in an agreement being reached between a number of parties, including JJB. JJB denies that any such conversations took place or that any such agreement was reached. In relation to the Manchester United Agreement, the Decision alleges that, at a meeting on8 June 2000 between Mr. Hughes of Allsports, Mr. Whelan and Mr. Sharpe of JJB, and Mr. Ashley of Sports Soccer, arranged by Mr. Hughes and held at his house, an agreement was reached to retail the new Manchester United home replica shirt at High Street Prices at launch on1 August 2000 . JJB denies that any such agreement was reached. When Mr. Whelan discovered at the meeting that David Hughes was suggesting that Sports Soccer and JJB should agree to adopt a price of£44.99 for the forthcoming Manchester United shirt, Mr. Whelan repeated JJB's well-known public policy not to price adult shirts above£40 and promptly left the meeting saying that he was not prepared to discuss retail prices with anyone."
"53. The OFT relies upon all the findings and analysis in the Decision … subject to the following observations: (a) The phone call from Mr. Ronnie to JJB was made either to Mr. Whelan or Mr. Sharpe and in the working week commencing Tuesday 30 May. In any event the precise date or recipient of the call need not be determined. (b) In the case of Allsports and JJB, Mr. Ronnie has now clarified that the telephone calls he made after the meeting on 24 May and before 2/3 June were made to inform those retailers of the fact that, in response to Allsports and JJB pressure and complaints, Umbro had managed to obtain Sports Soccer's agreement to increase its prices for England home and away Replica Shirt whilst England remained in the championship. Mr. Ronnie warned Allsports and JJB not themselves to discount as Sports Soccer would use any excuse not to abide by its agreement. (c) Accordingly, to this limited extent, the OFT's findings, in so far as they refer to assurances given by JJB, at §§414, 415(b) and (in part) 427 and 431 are not adhered to. Nevertheless the OFT's findings, at §427 and 431, that the purpose of the phone calls to JJB and Allsports was to give them comfort about assurances being given by their competitors and to confirm that Umbro was speaking to other retailers, are correct. (d) The receipt by JJB, in the course of the phone call from Mr. Ronnie, of confirmation as to Sports Soccer's agreement with Umbro to raise prices (following JJB's complaints) amounts to participation by JJB in an agreement or a concerted practice within the meaning of the Chapter I prohibition as to the pricing of the England Replica Shirt at the time of Euro 2000."
"(a) Mr. Hughes arranged a meeting on8 June 2000 to put a stop to discounting. His diary entry for 30 May reads "
"Agree Man Utd + England prices with everyone incl Mike Ashley" and goes on "
"The OFT's most detailed case on the England Agreement is that some time after24 May 2000 Umbro contacted JJB, Blacks, JD and Allsports by telephone and that by virtue of those telephone calls those undertakings "took part in an agreement to fix the prices of"
"(a) The phone call from Mr. Ronnie to Allsports was made either to Mr. Guest or Mr. Hughes and in the working week commencing Tuesday 30 May. In any event the precise date or recipient of the call need not be determined. (b) In the case of Allsports and JJB, Mr. Ronnie has now clarified that the telephone calls he made after the meeting on 24 May and before 2/3 June were made to inform those retailers of the fact that, in response to Allsports and JJB pressure and complaints, Umbro had managed to obtain Sports Soccer's agreement to increase its prices for England home and away Replica Shirt whilst England remained in the championship. Mr. Ronnie warned Allsports and JJB not themselves to discount as Sports Soccer would use any excuse not to abide by its agreement. (c) Accordingly, to this limited extent, the OFT's findings, in so far as they refer to assurances given by Allsports, at §§ 414, 415(b) and 427 (in part) are not adhered to. Nevertheless, the OFT's findings at §427 (and §431 as regards JJB) that the purpose of the phone calls to Allsports and to JJB was to give them comfort about assurances being given by their competitors is correct. (d) The receipt by Allsports, in the course of a phone call from Mr. Ronnie, of confirmation as to Sports Soccer's agreement with Umbro to raise prices amounts to participation by Allsports in an agreement or a concerted practice, within the meaning of the Chapter I prohibition, as to the pricing of the England Replica Shirt at the time of Euro 2000. (e) Allsports' contention that the OFT's case is entirely dependent upon accepting Mr. Ronnie's evidence as to the telephone call to Allsports is incorrect: (i) That such a phone call to Allsports was made is supported by other strong circumstantial evidence: see all the matters listed at paragraphs 9(a)(ii)-(vii) above. (ii) Further, and in any event, even if the Tribunal were not satisfied that the telephone call between Mr. Ronnie and someone at Allsports did take place, nevertheless other evidence is sufficient to establish that Allsports was party to an agreement or concerted practice as to the pricing of the England Replica Shirt at the time of Euro 2000, by virtue of Allsports' complaints, pressure and its knowledge. In this regard, as well as the matters referred at paragraphs 9(a)(iii)-(vii) above, the OFT refers to the evidence that Allsports, and Mr. Hughes in particular, was most concerned about other retailers discounting Replica Shirts, including the England shirt; Mr. Hughes' words at the Golf Day dinner; his various diary entries about discounting and agreeing prices (including specifically the England shirt)."
"(a) Mr. Hughes arranged the meeting on8 June 2000 to put a stop to discounting. His diary entry for 30 May reads "
"(1) Did each of JJB and Allsports make complaints to, or seek to put pressure on, Umbro about discounting of Replica Kit in general, about Sports Soccer's discounting of Replica Kit in general and/or about the England Replica Shirts in particular? (2) Did Mr. Ronnie make a telephone call to each of JJB and Allsports, in each of which he informed the relevant person at JJB and Allsports that Sports Soccer had agreed to price the England Shirt at£39.99 for as long as England remained in Euro 2000? (3) Do the facts found in (1) and/or (2) give rise to an agreement or concerted practice, to which JJB and Allsports was party, as to the pricing of the England shirt?"
"(1) What was the background leading up to the meeting at Mr. Hughes' house on8 June 2000 ? (2) What was said at the meeting on8 June 2000 ? (3) Do the facts found in (1) and (2) give rise to an agreement or concerted practice, to which JJB and Allsports was party, as to the pricing of the MU home shirt?"
"(a) Mr. Hughes organised the meeting of 8 June for the specific purpose of reaching agreement between Allsports, JJB and Sports Soccer as to the price of the MU home shirt. His deliberate intention was to make a price-fixing agreement. Mr. Ashley travelled up to Cheshire specially for the meeting and was fully aware of the purpose of the meeting. (b) At the meeting itself, Mr. Ashley indicated that Sports Soccer would price the MU home shirt at£39.99 at launch. Allsports wanted to go higher than£39.99 , but found out that it could not do so. JJB did discuss pricing; it indicated that it would price at launch at£39.99 . Both Mr. Hughes and Mr. Ashley came away from the meeting with the clear understanding that JJB would price at£39.99 at launch."
"(a) Did Mr. Ronnie, in the week beginning 29 May, telephone someone at JJB to inform them of the fact that "in response to Allsports and JJB pressure and complaints, Umbro had managed to obtain Sport Soccer's agreement to increase its prices for England home and away replica shirts whilst England remained in the championship?" (b) Did JJB exert "pressure" on Umbro in relation to Sports Soccer's pricing? If so, what was the nature of that pressure?"
"Agree Man United and England prices with everyone including Mike Ashley … Sports trade cartel – arrange a meeting regularly … Visit David Whelan"
"Phone Mike Ashley to review Man United launch and other issues"
"it appears that a price war will develop with at least two retailers other than JJB going with significant discounts from launch. JJB will start at£29.99 /£39.99 , but for how long?"
"13. Replica kit is seen as a premium product by retailers and the clubs and they want to make as big a margin as possible on the product. During 1999-2001, I constantly got pressure from retailers and from clubs (through the Umbro sports marketing department) about the wholesale and retail price of replica kit. This happened mostly around the time of a launch of a new product, major tournaments – such as Euro 2000 – and sometimes at Christmas. 14. Most of the time retailers gave me implied threats as to what might happen if we do not help them to control the retail price of replica products. I interpret these conversations as meaning if Umbro does not comply it will have a significant effect on our business i.e. the amount of orders that they place. This can range from comments such as "sort it out" (referring to other retailers who are discounting the retail price of replica product) to asking us to speak to other retailers to pull promotions. 15. JJB is well known in the industry as being an aggressive retailer and was, consistently, the most vociferous in its complaints about discounting. Its threats were taken seriously by Umbro due to its buying power, as the retailer with the largest number of stores in the UK. JJB during 1999-2001 bought more replica kit than any other retailer. 16. JJB normally contacted Phil Bryan (JJB account manager) or me directly in order to point out those retailers who were discounting the retail price of replica product and to ask us to do something about it. The main comments were usually "why are they doing this – the products fly off the shelf so why should they discount"
"12. JJB has consistently put pressure on Umbro to "sort out" other retailers who do not sell replica product (especially Manchester United and England) at full RRP i.e. ensure that those retailers do not discount the retail price. Sports Soccer have been a particular problem for JJB as they have been trying to break into the sports retail market for some time, and have been trying to do so by discounting the price to attract customers. Over the last few years Sports Soccer has grown significantly and has become a real commercial rival to JJB. 13. When Sports Soccer reduce the prices of replica shirts, especially Manchester United and England, Dave Whelan (Chairman of JJB) or Duncan Sharpe (CEO of JJB) from JJB normally call me to discuss this issue asking what Umbro is going to do about it. They will say things like "there is no need for him [Mike Ashley of Sports Soccer] to discount it as it flies out of the store", or "this is getting out of hand – get it sorted."
"8. When we received complaints from Allsports and JJB about discounts offered by other retailers, there was an underlying threat that they would withdraw support for Umbro as a brand in their stores if we did not do something about it. This would have serious repercussions for the Umbro business. 9. Also, perceived pressure (because nothing was explicitly stated) came in the form of order cancellations, a sudden reduction in the volume of a particular product that had been ordered and a perceived reluctance to place orders for Umbro products in future. These actions were not limited to replica kit but extended to apparel, footwear and other sports goods. Their timing would normally coincide with a recent retail promotion by one of Allsports' or JJB's competitors."
"There is one part of my OFT statement that I need to clarify. In the last sentence of paragraph 13, I stated that "the calls [from JJB] are more frequent around the time of a launch of a new shirt and Euro 2000 was particularly bad when I would get a call from Dave Whelan at least once a week"
"7. I was aware of the pressure that JJB placed upon the Umbro business, in particular during spring 2000. 8. I have received telephone calls from Dave Whelan to discuss business in general. On several occasions he would discuss Mike Ashley and the effect of Sports Soccer's entrance into the replica market. He would state that there was no need for Sports Soccer to discount the products as they "fly out of the store"
"5. Chris Ronnie alleges at paragraph 13 that I said to him "there is no need for him (Mike Ashley of Sports Soccer) to discount it as it flies out of the store"
"19. allsports were also one of the first customers to call us to tell us what other retailers are doing, putting pressure on us to resolve retail pricing issues. In the past they have cancelled orders on the forward order book, on the grounds that the rate of sale of these products had decreased due to Sports Soccer discounting prices, and that they therefore no longer want the product unless Sports Soccer increase the price. We would then be left with excess stock."
"41. During the meeting David Hughes mentioned that he had been in conversation with Manchester United regarding the price of the home shirt to be launched on1 August 2000 . I do not recollect if David Hughes told me who he had spoken to at Manchester United. 42. Towards the end of the meeting David Hughes called Tom Knight (Managing Director of First Sport) to ask him whether he had seen the promotion that JD Sports were running. This was an England shirt being sold at£39.99 with an Admiral cap worth about£10 . Tom Knight did not know that I was present as the call was not on speaker, and David did not mention it. I did not say anything. David told me about the content of the call afterwards. He said that Tom Knight had seen the promotion. David Hughes asked whether First Sport would be doing a similar promotion and Tom Knight confirmed that it would not. 43. I was under the impression that David Hughes was concerned that the price discounting that had been taking place by other retailers in respect of the England shirt would also be used in respect of the launch of the Manchester United home shirt a few months later. 44. After the telephone call with Tom Knight, David Hughes commented that he needed to "sort the situation out"
"10. CK referred to SS' allegations in relation to the England shirt and the meeting that had taken place between the retailers. MA said it was very difficult to recollect the precise events. As he recalled matters there had not been a meeting as such. Chris Ronnie of Umbro had contacted MA sometime before the European Championships, probably May/June of last year, saying that he, Chris Ronnie, had contacted named people at other retailers who had agreed to price the then England home shirt at£39.99 . MA could not recall the precise details of the conversations but thought that the names referred to by Chris Ronnie included Duncan Sharp of JJB Sports, Tom Knight of Blacks Leisure, David Hughes of Allsports and possibly Steve Makin from JD Sports on the latter he was particularly unsure. The agreement to retail at£39.99 was for so long as the England team was in the tournament. MA had confirmed to Chris Ronnie that SS would "conform" and retail the England shirt for£39.99 . This meant that SS raised its price for the England shirt from£30 /£32 /£34 (MA could not remember precisely the price at which the England shirt was being retailed by SS at the time) to£39.99 . Tom Knight of Blacks Leisure had contacted SS to confirm whether what he had heard from Umbro was right i.e. that SS would be conforming. SS was renowned in the industry for discounting hence, MA assumes, Tom Knight wishing to hear the confirmation from the "horse's mouth"
"Further to our conversation yesterday regarding our licensed kits, the other retailers including John Lewis have agreed to our requests which will take effect from opening of business Saturday 3 rd June. It is imperative that I speak with you this afternoon to ensure that Champion Sports will fall in line with the above."
"Following receipt of your fax, I am able to confirm that no discussions have taken place regarding the utilisation of the Club's new home jersey in any such promotions. As you know, our policy has always been, and will continue to be, that we do not utilise premium products such as replica jerseys for promotions of this nature. In essence, we have always managed to use alternative items from either within the product portfolio or by developing 'exclusive' merchandise. As stated during our conversation, discussions had already commenced regarding the issue of pricing with both Debenhams and Sport[s]…Soccer. We have subsequently received assurances from Sport[s]…Soccer and JJB that they will revise their current pricing of jerseys to reflect a price point which falls in line with market conditions. Our discussions with Debenhams are ongoing and as they form part of your retail partner strategy, I would appreciate any assistance you can lend to assist us in resolving this issue. I trust this provides you with the assurances you are seeking."
"There has been a major step forward in the retail price of England the launch of Manchester United. JJB, Sports Soccer, First Sport, JD Sports and Allsports have all agreed to retail their adult shirts at£39.99 This is following England being sold at various retail prices through April and May ranging from£24.99 to£29.99 ,£32.99 or£32.99 with a free£9.99 cap at JD Sports. Following a month of dialogue with all the above accounts, Umbro cannot allow our statement product to be discounted. It has also been decided that meetings will now take place with JD Sports and First Sport to advise those accounts that unless Umbro are now supported across other product categories, it will effect their deliveries of Manchester United home, away and third shirts. We, as a business, cannot allow these three accounts to buy licensed product and nothing else."
"there has been a major step forward in the retail price of England"
"19. Monday29 May 2000 was a bank holiday. So far as I can recall, I think I made the calls (referred to in paragraph 24 below) to Allsports and JJB sometime during that week. … 24. I did call Allsports and JJB to tell them that Sports Soccer had agreed to launch the shirt at£39.99 . Obtaining Sports Soccer's agreement to such an increase was a considerable "result" for Umbro, which I relayed to the retailers in response to their persistent complaints about Sports Soccer's discounting and the need to do something about it. I also informed them of our achievement in an effort to secure JJB and Allsports' commitments to supporting Umbro on a wider range of products. I definitely called Allsports as they had been as vocal about the pricing of the product. 25. I cannot now remember exactly who I spoke to at Allsports. My instinct tells me that I would have spoken to Michael Guest as he was more involved in the day-to-day running of the replica kit business within Allsports. I cannot comment on whether he told David Hughes or not. 26. My recollection is that I rang Duncan Sharpe at JJB to inform him that Sports Soccer had given us a price guarantee. 27. So far as I was concerned, the task I had to carry out was somewhat different from Phil Fellone's, as described at paragraph 28 below. I did not ring Allsports and JJB "to ask them to agree to maintain prices on the England home kit."
"A. Because with JJB in particular and Duncan Sharpe I already knew that he would go out at 39.99, and with Allsports through conversations with Michael Guest, the buying director, I knew that they would go out at 39.99 as well, because those two particular accounts would not have discounted the product (…) A. They had made it clear to myself and Phil Fellone, the sales director, that they would always stay at 39.99 But JJB in particular were always conscious of being more expensive on the High Street in replica than Sports Soccer and they did not want that situation to happen."
"Q. What you are not addressing is the point I am asking you about, which is simply this, and I think you have agreed with me: that there was no specific agreement extracted from JJB that they would do their 39.99 agreement? A. There was an agreement in place with JJB, because we discussed it through quite a period of time, that they would go out at 39.99, otherwise how would I know they retailed the product at 39.99? Q. Because I think you just told us a moment ago that you knew and everybody else knew that this is how JJB conducted its business? A. But I can be product specific there and say that we knew as a team within Umbro that JJB would retail at 39.99 because we had conversations around that product, and it had been agreed between JJB and between Umbro that they would retail that product for 39.99. Q. So now you are retracting the second sentence of paragraph 27, are you: "
"I did not ring Allsports and JJB…"
"I was aware that discussions had taken place between Chris Ronnie and Lee Attfield, and Sports Soccer, regarding their pricing of the England home shirt during the Euro 2000 tournament. I was told that Sports Soccer had agreed to put its prices up, and keep them at£39.99 for as long as England remained in the tournament. Sports Soccer had said, however, that it would discount if any other retailer discounted during that time. Chris Ronnie and I therefore telephoned the major retailers to explain that the major retailers i.e. Sports Soccer were threatening to enter into a price war and discount if any other retailer discounted. We rang the other accounts to see if they were intending to discount the England home shirt below rrp during this time and explain the consequences of what would happen if they did. I recall that I telephoned JD Sports, Debenhams, First Sport and John Lewis. With the exception of Debenhams, the retailers agreed to sell the England home shirt at rrp. I discuss the situation with Debenhams further below. As I have explained above, JD Sports were still at this time selling at rrp, but were giving away a free Admiral cap."
"I spoke with Michael Guest and David Hughes on a number of occasions regarding the price points of replica because they were concerned about them." (Day 6, p. 101) … "
"(b) In the case of Allsports and JJB, Mr. Ronnie has now clarified that the telephone calls he made after the meeting on 24 May and before 2/3 June were made to inform those retailers of the fact that, in response to Allsports and JJB pressure and complaints, Umbro had managed to obtain Sports Soccer's agreement to increase its prices for England home and away Replica Shirt whilst England remained in the championship. Mr. Ronnie warned Allsports and JJB not themselves to discount as Sports Soccer would use any excuse not to abide by its agreement. (c) Accordingly, to this limited extent, the OFT's findings, in so far as they refer to assurances given by [JJB or Allsports], at §§ 414, 415(b) and 427 (in part) are not adhered to. Nevertheless, the OFT's findings at §427 (and §431 as regards JJB) that the purpose of the phone calls to Allsports and to JJB was to give them comfort about assurances being given by their competitors is correct. (d) The receipt by [JJB or Allsports], in the course of a phone call from Mr. Ronnie, of confirmation as to Sports Soccer's agreement with Umbro to raise prices amounts to participation by [JJB or Allsports] in an agreement or a concerted practice, within the meaning of the Chapter I prohibition, as to the pricing of the England Replica Shirt at the time of Euro 2000."
"414 On24 May 2000 , at a meeting between Messrs. Ronnie and Attfield of Umbro and Mr. Ashley of Sports Soccer, Sports Soccer agreed to raise its prices of England home and away Replica Shirts. Sports Soccer appears to have insisted on an assurance that the other major retailers would not undercut its prices, thereby placing it at a commercial disadvantage. This led to Messrs. Ronnie and Fellone telephoning, between them, each of the major retailers in order to make sure that they would price the England Replica Shirts at High Street Prices in the run up to and during England's participation in Euro 2000… 415 (b) The witness statements of Mr. Ronnie and Mr. Fellone of Umbro support each other and confirm the version of events described by Sports Soccer; they each mention the specific retailers whom they respectively called, and from whom they received assurances (Mr. Ronnie: JJB and Allsports; Mr. Fellone: Blacks and JD amongst others… 427 As to Allsports' question why Umbro should be calling Allsports or JJB to confirm their retail pricing intentions if they were the source of pressure, the OFT is satisfied that it does make sense that Umbro would want to confirm with all retailers what their precise pricing intentions would be and to give comfort about assurances being given by their competitors."
"We have subsequently received assurances from Sports Soccer and JJB that they will revise their current pricing of jerseys to reflect a price point which falls in line with current market conditions."
"Agree Manchester United and England prices with everyone including Mike Ashley" "
"Phone and visit D. Whelan with Manchester United Shirt."
"29. The meeting took place in David Hughes' study. I recall that David Whelan, Duncan Sharpe and I sat on settees on opposite sides of the room. We were on one side of the desk facing David Hughes who sat behind the desk. 30. I do not remember David Hughes mentioning the MU shirt being worth£50 . He definitely said he thought he could get£45 for the shirt. I personally had not seen the new MU shirt before. David Hughes held the shirt up and made a fuss about its quality. 31. David Whelan said words to the effect that "
"Q. I have to put this to you because it is our case, although it has already been suggested. What you say in your witness statement Mr. Hughes did not say is exactly what you did say, that you went to that meeting and after seeing in the flesh Messrs. Whelan and Hughes you did not agree anything, you told them that you were going to do whatever you wanted, you might go out at 32 quid, you will decide on the day? "
"it was not a bold simple statement that said we were going to do 39.99" (Day 10, p. 161). He confirmed that Mr. Ashley had come out with a "tirade" about being a pariah, prompted in Mr. Hughes' view by the reference to the Predator boot (Day 10, p. 163). When Mr. Hughes said again that the shirt was worth£45 , Mr. Whelan said "
"I was shocked [that Mr. Ashley was there] but you have to get on with the business and it was a meeting. I thought I would wait and see what the meeting was about; immediately the meeting started and they started talking about 'This shirt is worth£45 ' I said "
"I have already told you that JJB are going at£39.99 on 1 st August in adult sizes and Sport Soccer will also do that. After speaking to Tom Knight this morning to appraise him of that information, he went on to say that he will be tactical in his pricing i.e.£39.99 where he is in proximity to a JJB or Sport Soccer and£44.99 elsewhere. Now that we can do different prices at different tills around the company, I think that we should do the same."
"As you know Umbro have worked very hard in agreeing a consensus to the price of the new Manchester United jersey. At one stage we even managed to get Messrs. Hughes, Ashley and Whelan in the same room to agree this issue. It therefore causes me real concern that I am led to believe that the Manchester United jersey is being sold by the Club via "
"4. I recall attending a Board Meeting of JJB on27 June 2000 . I seem to recall that around that time there had been an article appearing in the tabloid press about the price of replica football shirts with the implication that the manufacturers and/or retailers were intentionally maintaining an artificially high retail price for these goods. 5. At the Board meeting David Whelan, the Chairman of JJB reported to the board that, within the last few weeks (I now understand on the8 June 2000 ), he and the Chief Executive, Duncan Sharpe had been invited to a meeting at the house of David Hughes who is, I think, the Chairman of another sport retail company, Allsports. Mr. Whelan said that he had not been told the purpose of the meeting in advance but he thought it possible that David Hughes wished to talk to him about the possibility of JJB acquiring Allsports. When he and Mr. Sharpe arrived at David Hughes' house, the owner of yet another retail chain, Sports Soccer was also there. 6. Mr. Whelan reported that he then asked Mr. Hughes what the purpose of the meeting was. Mr. Hughes said that he wished to discuss with JJB and with Sports Soccer the possibility of agreeing minimum retail prices for replica shirts. 7. Mr. Whelan told the Board of JJB that he had immediately responded to Mr. Hughes by saying that JJB had never maintained any minimum prices and certainly did not intend to enter into any discussions of that nature at which point he announced that he and Duncan Sharpe were leaving. 8. Having reported the details of this meeting to the JJB Board, there was some discussion as to whether it should be minuted. After some discussion, it was decided that the detailed discussion would not be recorded in the formal JJB Board minutes, but I recall that I suggested that I would prepare a separate note of Mr. Whelan's report to the meeting which I would retain on my own file. In the event, however, I subsequently overlooked the preparation of such a separate minute. 9. The reason that it was decided not to include a minute in the JJB Board minutes was that we were all uneasy about including in JJB's minutes what could amount to an accusation against Mr. Hughes of Allsports. 10. I do, however, very clearly recall Mr. Whelan's report to the JJB Board meeting, the essence of which I have set out above to the very best of my recollection"
"[The OFT] also asked whether or not it was the case that David Hughes had produced a sample of the MU home shirt at the meeting at his house on 8 th June 2000. I have referred this question back to our client, and Dave Whelan confirms that the reason that he did not mention this in his statements is that he has no recollection of it. He would have seen a sample of the shirts some time before that when it would have been presented by the sales representative. To see the shirt again at David Hughes' house would have held no particular significance and would not have been memorable."
"35. I told David Hughes, David Whelan and Duncan Sharpe that there was no problem, that I had got the message and that I agreed that I would price at£39.99 on the MU home shirt. I showed no resistance to their position and didn't even to try to suggest another price point. Everyone was absolutely certain on that agreement. The atmosphere at the end of the meeting was very cordial and business-like."
"I have already told you that JJB are going at£39.99 on 1 st August in adult sizes and Sport Soccer will also do that. After speaking to Tom Knight this morning to appraise him of that information, he went on to say that he will be tactical in his pricing i.e.£39.99 where he is in proximity to a JJB or Sport Soccer and£44.99 elsewhere. Now that we can do different prices at different tills around the company, I think that we should do the same."
"480 In the light of the totality of the evidence, and for the reasons given below, the OFT is further satisfied that Sports Soccer and Umbro were not the only Parties involved in unlawful agreements after the end of the key selling period following the launch of the MU home Replica Shirt in August 2000. The OFT finds that JJB at least, which was by a considerable margin the largest of the major retailers (and the most powerful vis-à-vis Umbro), took active steps which contributed towards the maintenance of High Street Prices on England and MU Replica Shirts during key selling periods through to the end of August 2001. 481 First, each of the Umbro witnesses has confirmed that Umbro's price-fixing behaviour was conditioned by commercial pressure from, in particular, JJB. 482 Secondly, Sports Soccer has stated that it only retailed at High Street Prices because of pressure from Umbro, and that Sports Soccer sought and received from Umbro assurances as to the pricing intentions of other retailers in order to ensure that its agreements with Umbro would not put it at a commercial disadvantage. Sports Soccer has said that ' the pressure became more intense during 2001 than it had been in 2000 '. 483 Thirdly, JJB was actively involved in both the major price-fixing arrangements in mid-2000, namely the agreement surrounding the sale of England Replica Shirts at the time of Euro 2000, and the agreement surrounding the launch of the new MU home Replica Shirt on1 August 2000 . The OFT considers that, taking these two events together with the striking fact that JJB continued consistently to sell at High Street Prices, this strongly supports the view that JJB is likely to have continued participation in price-fixing activities on England and MU Replica Shirts until the end of August 2001. 484 Fourthly there is additional contemporaneous evidence to support the OFT's finding of JJB's continued participation in maintaining the prices of Replica Shirts in 2001: (a) The MU Centenary Kit was launched on20 July 2001 . Umbro's monthly management report for May 2001 specifically stated that JJB had 'voiced their concerns' about Sports Soccer's discounting of the MU home Replica Shirt, and were 'threatening cancellations on the centenary kit as a result' . In fact, on1 June 2001 , JJB did cancel such an order. According to JJB the order was reinstated once Umbro had offered a substantially better wholesale price. However, Mr. Fellone of Umbro explained in his witness statement that the reason for JJB reinstating the order was that, during a meeting on15 June 2001 , Umbro had said that it was 'confident that Sports Soccer were not going to discount the product for at least the first few weeks after launch' . Mr. Fellone's version of events is supported by the terms of the May 2001 management report, which went on to give as an action point arising from JJB's complaints: 'Objectives/AOB: resolve current Sports Soccer issue.' (b) In his fax of26 June 2001 to Nike (copied to MU), Mr. Whelan of JJB stated that he had purchased the remaining stock of MU home Replica Shirts which had been launched the previous August to 'ensure that the MU shirt is not bastardised on price around the country' . This supports the view that JJB were seeking to avoid a situation in which market conditions for the Replica Shirts were unsettled by heavy discounting activity, and thereby to ensure that minimum prices could be maintained. (c) The new England home Replica Kit was launched on23 April 2001 . On17 April 2001 , an internal email from Mr. Attfield to Mr. Ronnie's PA referred to Sports Soccer's intention to sell England shorts, socks and infant kits at launch a few days later at reduced ' MEGA ' prices. Mr. Attfield wanted to inform Mr. Ronnie of this intended discounting 'in view of the recent reaction to the pricing of the Celtic (H[home]) shorts, socks and Infantkit' . In the light of the fact that JJB had been the major source of pressure on Umbro in 2000 in relation to discounting by Sports Soccer, and having regard to the incident about MU Replica Shirts documented in the Umbro May 2001 management report and Mr. Fellone's witness statement (sub paragraph (a) above), the OFT considers it probable that this reference denoted a reaction by JJB in relation to discounting of the Celtic Replica Kit. Umbro's concern, therefore related to expected pressure from JJB in response to any future discounting by other retailers on the new England Replica Kit. (d) At launch on23 April 2001 , Sports Soccer did discount the England infant kit, but within 3 days increased its prices back up to RRP levels. The OFT considers, in the light of the evidence, that this action was prompted by pressure from JJB, exerted through Umbro (e) JJB retailed the England home Replica Shirt at High Street Prices, although there was a local exception to this in JJB's Carlisle store. Mr. Bryan and Mr. Fellone of Umbro contacted Mr. Russell of JJB several times, raising Umbro's concerns in relation to JJB's Carlisle branch which was offering a 25 per cent discount off the new England Replica Kit on the day of its launch. An Umbro file note referring to the matter stated: 'Concerns were raised that this could give other retailers the perfect opportunity to reduce their stock and start a price war. Colin [Russell of JJB] said that he could see our point of view but the discount applied to all product as a result of a commercial decision made by Duncan Sharpe [of JJB]. He did say, however, that he would speak to Duncan when he came back to the office that afternoon. … Phil Bryan [of Umbro] spoke to Colin at 4.45p.m who advised that Duncan was aware of our concerns but stood by the original decision to apply the discount.' The OFT considers that, viewed in context, this file note indicates that Umbro and JJB had a continued overall understanding in relation to the prices of England Replica Shirts at this time, and that JJB's action in Carlisle was contrary to that understanding and therefore made the subject of a specific complaint by Umbro. 485 Fifthly, the OFT refers to JJB's participation, during 2001, in the England Direct Agreements: see paragraphs 514 to 520 below. These demonstrate the involvement of JJB at the material time in a separate arrangement which restricted the pricing of England Replica Shirts sold on the internet."
"Subject: Sports/Soccer England Launch Please find below the pricing structure for the forthcoming England Home kit. Junior MEGA Adult MEGA Jersey£29.99 £39.99 Shorts£16.99 (£12 )£19.99 (£15 ) Socks£7.99 (£6 )£9.99 (£7 ) Inf[ant]/Kit£29.99 (£22 ) In view of the recent reaction to the pricing of the Celtic (h[ome]) shorts, socks and Infantkit I thought it best you are aware of this information."
"DATE :23 APRIL 2001 SUBJECT : JJB DISCOUNTING ENGLAND HOME KIT Colin Russell advised a.m of Carlisle branch offering 25% discount off England kit on launch day by P.Bryan. Concerns were raised that this could give other retailers the perfect opportunity to reduce their stock and start a price war. Colin said he could see our point of view but the discount applied to all product as a result of a commercial decision made by Duncan Sharpe. He did say, however that he would speak to Duncan when he came back to the office that afternoon. Phil Fellone had a similar conversation with Colin later that morning. Phil Bryan spoke to Colin at 4.45p.m who advised that Duncan was aware of our concerns but stood by the original decision to apply the discount."
"…A concerted practice is capable of continuing in existence, even in the absence of active steps to implement it. Indeed, if the practice is sufficiently effective and widely known, it may require no action to secure its implementation. Cases may arise in which the absence of any evidence of measures taken to implement a concerted practice may suggest that the practice has come to an end. That, however, is matter of evidence, which must depend upon the circumstances of the case … It is perhaps of interest to observe the decision of the Untied States Court of Appeals in US v Stromberg and Others, 268 F 2d.256, in which it held that a conspiracy, once established, is presumed to continue until the contrary is shown."
"We requested a meeting with JJB to understand why such a big order had been cancelled. Duncan Sharpe, Colin Russell and Steve Preston were present. I attended the meeting with Chris Ronnie. The JJB representatives asked us if we could guarantee the price at which Sports Soccer would sell the Centenary shirts at launch. We said that we could not guarantee the price but we were confident that Sports Soccer were not going to discount the product at least for the first few weeks after launch, as Mike Ashley had told us that was his intention. JJB then reinstated the order." (decision, paragraph 484 (a)). (viii) By a fax to Nike of26 June 2001 (copied to MU) Mr. Whelan stated "
"The licensed market place continues to have fantastic England home kit sales however the focus is back on Sports Soccer discounting policy in this sector with their reductions on MUFC home jerseys. JJB have voiced their concerns and are threatening cancellations on the centenary kit as a result. … Objectives/AOB Resolve current Sports Soccer issue."
"17. One example of the kind of pressure that they put on us was in May 2001, relating to a repeat order for the Manchester United Centenary shirt. An initial order had been placed for 40,000 shirts and they had subsequently placed a repeat order. At the time Sports Soccer were discounting the England shirt. I received the cancellation, which was reported in the May 2001 trading report. 18. We requested a meeting with JJB to understand why such a big order had been cancelled. Duncan Sharpe, Colin Russell and Steve Preston were present. I attended the meeting with Chris Ronnie. The JJB representatives asked us if we could guarantee the price at which Sports Soccer would sell the Centenary shirts at launch. We said that we could not guarantee the price but we were confident that Sports Soccer were not going to discount the product at least for the first few weeks after launch, as Mike Ashley had told us that was his intention. JJB then reinstated the order. In fact Sports Soccer did discount the kit one month after launch, however by that time JJB was selling its shirts so well that it did not react."
"6. On1 June 2001 JJB cancelled 40,000 MU centenary shirts (the second tranche). I do not think that there was any explanation given at the time by JJB. 7. So far as subsequent meetings with JJB are concerned, I do remember a meeting with Dave Whelan in his office,, with Duncan Sharpe. I remember that, at that meeting, we discussed the deal whereby JJB would buy up the full amount of our production of the MU home shirt in the Far East on an exclusive basis, and I confirmed that no more production of MU home shirts would be made. The reason for this was that JJB were concerned that otherwise we would dump additional shirts into the marketplace, and other retailers would then sell them at heavily discounted prices. 8. I also remember that I wanted to get something out of this for Umbro. I managed to negotiate a deal whereby JJB would, for its part, purchase a certain amount of associated product. I think that, originally, I went for£2m worth of product, but that in the end this may have been reduced to£1m . I see from my letter to Dave Whelan of18 June 2001 that JJB also formally must have agreed to reinstate its cancelled order for the Centenary kit at that time. 9. I do not now clearly remember an earlier meeting at which the issue of Sports Soccer discounting the MU home kit was specifically discussed, although I see that it is very likely that a meeting took place on8 June 2001 . This would accord with Phil Fellone's file note which has that date. It is also possible that, at that earlier meeting, the idea of JJB buying up a further large quantity of MU home shirt production was discussed. I see from Phil Fellone's file note that the issue of the reinstatement of JJB's order for the MU Centenary kit appears to have been raised at such a meeting, although no firm decision was taken about the matter at that stage. 10. Separately, and around that time, I do remember attending a meeting with Phil Fellone at which, at least, Duncan Sharpe attended for JJB. I do not now definitely remember whether anyone else in particular was there on behalf of JJB, although this was likely. I do not remember that Peter McGuigan was also there. This would have been very unusual because I oversaw the JJB account with Phil Fellone as part of my UK responsibilities. 11. I cannot now date this meeting precisely. What I do distinctly recall is that, at that meeting, JJB's representatives were worried that Sports Soccer would discount the new gold Centenary kit on launch, and that they wanted reassurance from us that Sports Soccer would not do this. 12. I also recall distinctly that, before this meeting, I had spoken to Mike Ashley of Sports Soccer about the issue of pricing for the Centenary kit at launch. I remember telling him that it was very important that he didn't discount. I remember clearly that he told me that Sports Soccer would charge full price for the first 3 to 4 weeks after launch. That was the most I could get. 13. When it then came to the meeting with JJB, I or Phil Fellone told the JJB representatives that Sports Soccer would not discount for the first few weeks after launch."
"What I do distinctly recall is that, at that meeting, JJB's representatives were worried that Sports Soccer would discount the new gold Centenary kit on launch, and that they wanted reassurance from us that Sports Soccer would not do this. I also recall distinctly that, before this meeting, I had spoken to Mike Ashley of Sports Soccer about the issue of pricing for the Centenary kit at launch. I remember telling him that it was very important that he didn't discount. I remember clearly that he told me that Sports Soccer would charge full price for the first 3 to 4 weeks after launch. That was the most I could get. When it then came to the meeting with JJB, I or Phil Fellone told the JJB representatives that Sports Soccer would not discount for the first few weeks after launch."
"We requested a meeting with JJB to understand why such a big order had been cancelled. Duncan Sharpe, Colin Russell and Steve Preston were present. I attended the meeting with Chris Ronnie. The JJB representatives asked us if we could guarantee the price at which Sports Soccer would sell the Centenary shirts at launch. We said that we could not guarantee the price but we were confident that Sports Soccer were not going to discount the product at least for the first few weeks after launch, as Mike Ashley had told us that was his intention. JJB then reinstated the order. In fact Sports Soccer did discount the kit one month after launch, however by that time JJB was selling its shirts so well that it did not react."
"The retail price charged by England Direct for these products will not be less than the price charged by JJB. As agreed, you [i.e. JJB] will supply us [i.e. the FA] with details of all price changes implemented by JJB in respect of these products …"
"to confirm, for the purpose of good order, the issues discussed relative to the meeting held with yourself, Duncan, David Smith and myself on 21 st October 1999. (…) The real issue as I understand it, however, is that JJB are not happy with Hay and Robertson buying UMBRO products directly from UMBRO and wish to be the point of contact in this regard."
"Further to our meeting last week to discuss the above, I am just writing to confirm our agreement in respect of England Direct. JJB will supply Umbro England licensed product to England Direct for sale via mail order and the England Direct website (…) The price charged by JJB to England Direct will be Umbro's wholesale selling price. (…) The retail price charged by England Direct for these products will not be less than the price charged by JJB. As agreed, you will supply us with details of all price changes implemented by JJB in respect of these products…"
"Umbro will present the product range to JJB and will then advise the contact at ED of the styles that [NO+arrowhead in the left hand margin] have been selected."
"I am not sure if you have heard of Sportsetail Ltd. We are setting up the England-direct Website for the FA where we are selling all England football merchandise including Umbro kit. The retail price for the kit on our site has to be pegged to the JJB price so David Smith at the FA suggested that you could confirm your retail prices to me so that we don't go out at a lower price. (…) Just to confirm I am looking for retail price for Replica shirts – adult and kids; Replica shorts – adult and kids; Replica socks; Infants kit with socks; Infants kit without socks."
'I am getting together a list of products that we would look to put onto the Nationwide page and I need to know if it will be ok for me to put the replica home shirt on for the EURO 2000 period. This page will only be accessible by Nationwide members and the shirt will only be on there for the tournament period so the discounted price will be available for Nationwide customers only. Hope this is ok.'
'Would it be possible for the price at discount to be no lower than the offer within JJB? If not what is the price differential?'
"Is the Umbro/England product sold via England Direct supplied by JJB? I thought that we had agreed after our meeting with Umbro and JJB in January that everything would be supplied by JJB – is this the case? You mentioned to me recently that you are not getting the best possible wholesale price from Umbro for the product supplied to England Direct. Is it that JJB supply the actual stock but you are billed by Umbro?"
"Originally JJB were to supply, but it was felt that it would be better to go direct. An Umbro/JJB decision not mine, hence the need for The FA/England-direct to be able to buy at the JJB price."
"In my previous witness statement of15 August 2002 I stated, in relation to the meeting held on24 January 2000 at JJB's offices, that "the question of Sportsetail's prices being pegged to JJB's prices was not a matter with which I, or JJB, had any involvement, and it was not mentioned at the meeting"
"In relation to the Sportsetail Agreement, the Decision alleges that an agreement or concerted practice was entered into between JJB, the FA, Sportsetail and Umbro on7 February 2000 , pursuant to which the parties agreed that Sportsetail's retail prices for England replica kit would be aligned with JJB's retail prices. JJB denies that it entered into any such agreement or concerted practice. In particular, whilst proposals for the supply of replica products to Sportsetail were discussed at the meeting of24 January 2000 , it was clear that the making of any agreement was subject to JJB's subsequent approval. JJB never gave its approval. On or about 11 February JJB informed Umbro that it did not wish to proceed with the agreement. This must have become apparent to the FA and Sportsetail. JJB played no further part in the discussions relating to Sportsetail."
"[81] According to settled case-law, it is sufficient for the Commission to show that the undertaking concerned participated in meetings at which anti-competitive agreements were concluded, without manifestly opposing them, to prove to the requisite standard that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for the undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs. [82] The reason underlying that principle of law is that, having participated in the meeting without publicly distancing itself from what was discussed, the undertaking has given the other participants to believe that it subscribed to what was decided there and would comply with it. [83] The principles established in the case-law cited at paragraph 81 of this judgment also apply to participation in the implementation of a single agreement. In order to establish that an undertaking has participated in such an agreement, the Commission must show that the undertaking intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the actual conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk ( Commission v Anic , paragraph 87). [84] In that regard, a party which tacitly approves of an unlawful initiative, without publicly distancing itself from its content or reporting it to the administrative authorities, effectively encourages the continuation of the infringement and compromises its discovery. That complicity constitutes a passive mode of participation in the infringement which is therefore capable of rendering the undertaking liable in the context of a single agreement. [85] Nor is the fact that an undertaking has not taken part in all aspects of an anti-competitive scheme or that it played only a minor role in the aspects in which it did participate material to the establishment of the existence of an infringement on its part. Those factors must be taken into consideration only when the gravity of the infringement is assessed and if and when it comes to determining the fine (see, to that effect, Commission v Anic , paragraph 90)."