Soon, the commercial breaks will no longer be filled with gambling football players. From 30 June 2022, it is — in short — no longer allowed to use famous people in gambling advertisements. The era in which Wesley Sneijder, Ronaldinho and Van der Meijde dominate the Dutch TV channel is thus coming to an end.
Since the online gambling market was released in October 2021, the number of commercials from gambling providers has increased significantly. Most of the providers use celebrities (often football players) in their advertisements.
The change in the law raises questions from the gambling provider. For example, what effect does the change have on the agreements concluded with the footballer who plays in the commercials?
As of 30 June 2022, the Regulations on Recruiting, Advertising and Addiction Prevention of Gambling will be radically amended. The bottom line is that it is prohibited to use role models for recruitment and advertising purposes. Although television ads are the most prominent form of gambling ads, the ban covers all forms of advertising. This includes advertisements on the radio, in newspapers, bus stops, magazines and online channels (such as YouTube).
So what is a role model? The term role model is understood very broadly. In any case, this includes: professional athletes, people active in the entertainment industry, models, politicians, people with a publicly visible role in the field of gambling and people who play a visible profession that is a social role model. People who enjoy relevant public fame also fall under the definition.
There are two exceptions to the ban on using role models for advertising and recruitment activities:
The first exception applies to advertising activities that serve to announce the non-gambling activities of role models in physical locations of casinos and slot machines. Think of a football player presenting his biography in a casino, or a folk singer performing there. The activities may then in no way be related to the offer of the gambling provider itself.
The second exception is passive (sports) sponsorship. Passive sponsorship is, for example, sponsoring an individual professional athlete and/or sports team. This involves shirt and/or material sponsorship. Sponsoring a television program also falls under passive sponsorship. These advertisements are expected to involve fewer immediate risks, because the gambling offer is not actively promoted.
The rationale behind the change is that the increase in gambling ads that have reached an untargeted level since the release of the online market has negative consequences, especially for vulnerable young people and problem players. In particular, these groups of players are considered susceptible to gambling advertisements that use their role models. The legislator's line of thought is that role models can have a compelling effect on young people to start gambling and/or to continue playing where this is no longer responsible.
But what is the effect of these amended regulations on existing agreements with celebrities? Can these agreements be terminated without further ado? The change does not mention this. In short, this means that the risk is placed with the gambling providers.
Whether a contract with a role model can be terminated therefore depends on the agreement. For example, a contractual clause may provide for termination. If no termination provision is included in the agreement, the starting point is that the parties are bound by the agreement.
As a solution, an appeal to the “unforeseen circumstance” could be considered. According to the law, a judge can terminate an agreement if this is the case. The gambling provider can apply to court for this. Of course, it is questionable whether there is an unforeseen circumstance. This takes into account, among other things, whether the proposed legislative amendment has already been published in parliamentary papers or in the media or whether the parties have been assisted by professional service providers. It is advisable to seek legal advice about this.
Guy Billet
lawyer
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