Contract Law Lessons from the last year: What Sports, Media and Tech Businesses Need to Know

"Loss of Profit" Exclusions: The Clause That Ate Your Claim

The case: EE Ltd v Virgin Mobile Telecoms Ltd [2025] EWCA Civ 70

Virgin breached an exclusivity obligation. EE's loss, over £24 million in fees it would have earned, was entirely predictable and easily quantifiable. But the contract excluded liability for "anticipated profits." The Court of Appeal majority held this wiped out the claim entirely. Anticipated profits meant profits, full stop. It didn't matter that the loss was certain rather than speculative.

Application to sport, media and tech: Exclusivity is the currency of our industries. Exclusive transmission windows. Exclusive sponsorship categories. Exclusive territorial distribution. Exclusive talent engagements. The commercial value of these deals is almost always measured in the revenue they are expected to generate - which is, by definition, anticipated profit. If your contract contains a mutual exclusion of loss of profit (as many template agreements do), you may have just excluded the very claim that makes your exclusivity worth having.

The dissenting judgment of Phillips LJ - distinguishing speculative losses from predictable, ascertainable ones - remains a credible argument on different wording. But you cannot rely on it.

Action to take: If exclusivity is the heart of your deal, carve it out expressly from any loss of profit exclusion. Consider financial caps rather than blanket exclusions. And always road-test your limitation clause against the breach scenario you most fear.

Cure Procedures: Follow Them or Lose Your Right to Terminate

The case: Kulkarni v Gwent Holdings Ltd [2025] EWCA Civ 1206

The Court of Appeal held that even a repudiatory breach can be "remediable" for the purposes of a contractual cure procedure. If your contract requires you to give notice and allow a cure period before terminating, you must follow that process, even if the breach is serious enough to justify termination at common law. Terminating without following the contractual procedure may itself be a repudiation.

Application to sport, media and tech: Termination clauses in broadcast agreements, sponsorship contracts, talent deals and technology agreements almost always include cure periods. When a major breach occurs, a broadcaster fails to make a rights payment, a sponsor uses marks outside the approved guidelines, a tech provider suffers a catastrophic service failure, the instinct is to terminate immediately. Kulkarni says: slow down. If your contract has a cure procedure, you must follow it. If you want certain breaches to trigger immediate termination without a cure period, draft that expressly.

Action to take: Audit your termination clauses. Identify which breaches you consider so serious that no cure period should apply, and draft specific instant termination rights for those scenarios. Don't rely on the common law right to terminate for repudiation without checking whether your contract has modified it.

Your Agent's Commission Could Be Your Problem

The case: Hopcraft v Close Brothers Ltd [2025] UKSC 33

The Supreme Court rewrote the rules on secret commissions. The old distinction between "fully secret" and "half secret" commissions is effectively dead. Now, if your agent is in a fiduciary relationship with you and takes a payment from a third party without your fully informed consent, meaning disclosure of all material facts, not just the existence of a commission, both the agent and the payer may face bribery claims.

Application to sport, media and tech: Intermediary arrangements are the lifeblood of our industries. Football agents negotiating transfers. Rights agents negotiating TV deals. Ad sales houses placing media buys. Brokers sourcing sponsorship. In every case, someone is earning commission from one side, both sides, or somewhere in between. The Supreme Court has made clear that vague disclosure - such as the statement, "we receive a commission" - may not be enough to protect anyone in a fiduciary relationship. If you are a principal, you need to know exactly what your agent is earning and from whom. If you are paying commissions to someone else's agent, you need contractual protections - including indemnities - in case disclosure to the principal falls short.

Action to take: Review every intermediary, agent and broker arrangement you have. Map who is paying whom. Ensure disclosure obligations are specific, documented and policed.

Buried Terms Won't Protect You Unless You're Negotiating with Equals

The cases: Durber v PPB Entertainment Ltd [2025] EWHC 498 (KB) and MS Amlin Marine NV v King Trader Ltd [2025] EWCA Civ 1387

An online gambling operator buried a sweeping liability exclusion in page 30 of its 45-page terms and conditions. No heading, no index entry, no highlighting. The court refused to incorporate it. The term was onerous and unusual, and the consumer had no realistic notice of it.

But in MS Amlin, the Court of Appeal pushed back on the same rule in a commercial insurance context, holding that a "pay first" clause common in the market was not unusual enough to require special notice between experienced commercial parties with professional advisers.

Application to sport, media and tech: Our industries (like many others) run on standard terms, platform terms of service, ticketing conditions, subscription agreements, click-wrap licences, fantasy sports rules. Many of these are presented to consumers or to smaller commercial counterparties (independent producers, freelance talent, small rights holders) who have no realistic opportunity to negotiate. Durber is a warning: if you bury a harsh term in lengthy standard conditions without signposting it, a court may strike it out. MS Amlin suggests that between sophisticated commercial parties, such as a Premier League club and a global sponsor, both advised by specialist lawyers, the rule has less bite.

Action to take: For consumer-facing and small-counterparty terms, highlight onerous clauses, give them clear headings, and include them in any summary of key terms. For major commercial deals, don't assume the rule will save you. Read the other side's terms properly and take advice.

Don't Let Your Payment Mechanism Become an Escape Route

The case: King Crude Carriers SA v Ridgebury November LLC [2025] UKSC 39

The Supreme Court confirmed there is no "deemed fulfilment" principle in English law. If a party deliberately fails to satisfy a condition precedent to a payment obligation, the payment may simply never fall due. The defaulting party is liable for breach of contract, but damages for that breach might be nil.

Application to sport, media and tech: Conditions precedent to payment are everywhere in our sectors: a sponsor's payment conditional on approval of imagery from a video shoot; a broadcaster’s payment conditional on signals complying with standards set out in a service level agreement; A platform's revenue share payable only after the content provider submits verified analytics. In each case, if the paying party frustrates the condition, by dragging its feet on approvals, failing to provide confirmations, or simply not engaging, the money may never become a debt. You are left chasing damages, not an invoice.

The Court of Appeal in Disclosure and Barring Service v Tata Consultancy Services Ltd [2025] EWCA Civ 380 also gave useful guidance on how courts identify conditions precedent. You don't need magic words. An "if … then" structure and the language of obligation can be enough.

Action to take: Stress-test your payment triggers. Ask what happens if the other side simply doesn't do what they need to do to make payment fall due. Build in fallback mechanisms, such as nominated third parties who can take the required step, or express provisions that the condition does not apply where the debtor's own breach causes the failure.

Draconian Control Means You Must Act in Good Faith

The case: Ellis v John Benson Ltd [2025] EWHC 2096 (KB)

A franchisor exercised near-total control over its franchisees, allocating customers, setting fees, prohibiting other work, preventing delegation. When the franchisees walked away, the franchisor claimed heavy damages. The court implied duties of good faith and fair dealing into the agreements and found the franchisor's conduct, including bullying, discriminatory behaviour, arbitrary sanctions, and unilateral contract changes, breached those duties. The franchisees' termination was justified.

Application to sport, media and tech: Think about the relationships in our industries that look like arm's-length commercial contracts but feel like something closer to highly controlling employment or franchise relationships. A talent management company that controls every aspect of an artist's career. A platform that dictates terms to creators, setting monetisation rates, controlling audience data, restricting competitive activity. A league or governing body that imposes exclusivity or regulations on athletes with limited negotiating power. Ellis v John Benson signals that where one party exerts that level of control, courts may imply duties of good faith and use them to police abusive behaviour, even in the absence of express contractual protections. An appeal is due to be heard in 2026. This is one to follow closely.

Action to take: If you exercise significant control over a commercial counterparty, assume a court might imply good faith obligations. Build fair processes into your agreements, including dispute resolution mechanisms, consultation requirements, objective criteria for discretionary decisions. If you are the weaker party, know that the law may offer more protection than your contract appears to give you.

Conclusion

Contract law doesn't stand still, and the cases that reshape it rarely come from the industries you'd expect. But the principles are universal. Whether you're negotiating a Premier League broadcast deal, a music catalogue acquisition, a gaming platform licence or a talent management agreement, recent case law carries real lessons: know what your agents earn; stress-test your payment triggers; don't let boilerplate exclusions swallow your key commercial protections; signpost your harsh terms; respect cure procedures; and if you exercise draconian levels of control, expect obligations to follow.

If you'd like to discuss how any of these decisions affect your contracts, feel free to get in touch with our team.

Level is a specialist commercial law firm advising clients across sport, media, entertainment and tech.