Implementing effective security at major sports events: Part 2 - Key contractual protections

Wednesday, 08 June 2016

How has the landscape of hosting the major events of today been affected by increased global security concerns and what role does the lawyer have to play? This two-part special feature uses the hosting and organisation of the Rugby World Cup 2015 in England and Wales (the “RWC”) as a case study to examine the legal team’s role in securing a major event.

In Part 1, we looked at how the legal team helps to organise, structure and run the event, including the key relationships upon which the successful delivery of major events is reliant, and the involvement of the lawyers in operational planning and risk mitigation.

In Part 2, below, we consider the technical drafting of the legal documentation, including the protections that can be embedded in the legal framework underpinning the event; before closing with some practical considerations regarding security threats.

Contractual Protections

What role does the lawyer play in preparing a major event to deal with security threats? A central one: the contracts entered into with suppliers and stakeholders shapes the interdependent relationships from the outset. Both sides have their reputations on the line. Getting into the detail of the contract and operations and taking the time to put requirements into context with practical examples/scenarios helps to build common goals with contractors so that both sides are supporting each other to achieve the shared goal of putting on the best event possible. Listed below are some suggested contractual protections for consideration.

To be able to react to unplanned events it is critical that contracts are flexible enough to enable quick decision-making and permit changes at short notice without being hampered by laborious procedures (like requiring minimum notice periods for change/ all amendments to be signed) or being held to ransom on price due to the lack of notice or viable alternative. This can be achieved by inserting a contractual “change control” mechanism, setting out a quick and efficient procedure to agree out of scope requirements when the event is live. This could involve delegating authority to named individuals on the ground (or their nominees) to agree verbally to mobilise additional stewards or additional transport with the cost of such resources pinned to a pre-agreed rate set out in the contract (with a text or email to confirm the instruction to follow within 24 hours). Internal governance would need to align with this procedure to allow the individuals to authorise the spend up to certain monetary thresholds.

Where the type of additional services required are not envisaged in the original contract and no rate has been pre-agreed, reliance will be placed on the relationship with the contractor, which is where supplier engagement and relationship investment (noted in Part 1 of this article) will be key. Including language requiring the contractor to source the service (given their expertise in the industry and their network of contacts), to work together to find a solution and agree a fair and reasonable sum will give some comfort in this scenario that the event organiser is as best equipped as possible and suppliers will not take advantage of the situation.

Be mindful that security requirements may also need to be decreased in certain scenarios e.g. teams may change or cancel their training schedules at team bases in response to a security threat (or even due to bad weather for that matter). Having the ability to stand down security guards at short notice in these instances and limiting cancellation fees (depending on the parties’ bargaining position) will minimise the cost to the business. To achieve this, consider providing indicative requirements in the contract and agree a date when those requirements will crystallise with a sliding scale of cancellation fees pegged to the amount of notice provided thereafter. From the event organiser’s perspective, that date should be as late as possible without compromising the ability of the contractor to mobilise and deploy the resources.

Relying on the right to sue the contractor for breach of contract is unlikely to be of any comfort in the events world as the event will have passed before any claim can even be issued. Instead look at other tools to secure performance from the stakeholders to act as a deterrent to non-performance in the first place. These could take the form of:
1. withholding significant amounts of payment until after the event so there is an incentive to provide services to the standard expected;
2. including service credits to be applied against objective, factual service levels e.g. if the number of security stewards contracted do not turn up for their shift a monetary amount is automatically payable by the contractor for that failing (such amount should be a genuine pre-estimate of the loss suffered i.e. how much it would cost to get a replacement security guard from a third-party on site immediately); and
3. including clear milestones schedules and reporting metrics to ensure contractors are on track with their planning together with supporting documentation e.g. requiring sight of their operational plans (including contingency and incident management) and evidence of their ability to deliver (e.g. security personnel recruited contractually) by certain dates for review and approval . This visibility will help minimise the risk of contractors overpromising in their ability to deliver the requirements as we saw with G4S who failed to recruit the security staff¹ it had contracted to deliver to the London 2012 Olympic and Paralympic Games² resulting in the organisers mobilising extra military personnel to provide security at the games.³

Consider whether it is appropriate to include fixed rates for additional services pegged to a formula dependent on the amount of notice received e.g. if additional buses need to be mobilised immediately because the local train station has been evacuated, the bus contractor can approach third parties contacts to fulfil the requirement (if it has exhausted its own stock) and the cost is pre-agreed as a pass-through cost from the third party with a fixed margin applied by the bus contractor. The margin is necessary to act as an incentive for that supplier to do all it can to locate the requisite resources.

Ensure there is clarity on the lines of contractual liability as although it may be the event organiser running the event, security services may be provided either by the venue or a third party security contractor and responsibility and accountability should be allocated accordingly. Event owners/organisers are the face of the event and spectators may naturally seek to bring a claim against them for any injuries or losses, however, in practice it will be difficult to apportion liability to any one party. On the one hand, the event organiser might be liable because it is directing the security strategy; on the other hand the contractor might be liable because its stewards are taking the decisions on the ground. On this basis it is important to ensure that contractors take out adequate insurance cover and take on sufficient risk under the contract so that the event organiser has the indirect benefit of their insurance and to ensure that the contractor is incentivised to perform to the standards expected. Linked to this, consider building in to the contracts with service providers that will be on-venue a requirement that they must follow the instructions of the event organisers and co-operate with the other event stakeholders (which will include the security staff and stewards).

In drafting the terms and conditions of the tickets for entry into the event, consider the following security protections:
1. permitting the event organiser to change the list of prohibited or restricted items that can be brought into the venue at any time provided that such change is communicated to spectators (this could be done via the event website, if referenced). This will enable the organiser to be reactive to changes in threat levels or the security strategy e.g. if it is later advised that no bottles or bags should be allowed in-venue;
2. requiring ticket-holders to co-operate fully with instructions and guidelines of authorised persons for the purpose of safety and/or security (such persons should cover event and venue management, police and agencies and their respective personnel); and
3. reserving the discretion to submit ticket-holders to body and possession search and screen process (even if it is not part of the proposed strategy at the time) and stating that refusal to submit to such searches could result in ejection without refund.

Consider whether ticket-holders will be entitled to a refund in the following circumstances and incorporate into the ticket terms and conditions as applicable:
1. if the event is stopped after it has started;
2. if the event is delayed or the start time brought forward but still takes place on the scheduled day;
3. if the event is postponed and not rescheduled;
4. if the event is postponed and rescheduled to another date (either at the same venue or a different venue); or
5. the entire event is cancelled.

In considering whether a refund would be appropriate, contemplate the likely reaction of the spectators and media and the insurance implications. If the event is structured whereby the only revenue stream for the organiser is ticket sales (as another party owns the commercial rights) the organiser may want to protect that revenue stream as much as possible if there is no event cancellation insurance in place e.g. no refund if the event is rescheduled. News reports have suggested that the cost to Manchester United to refund tickets and reschedule the cancelled match in response to the recent security scare⁴ at Old Trafford amounted to circa £3m.⁵

Practical Considerations:

The legal team should work closely with the comms team to ensure the media plan for crises management limits messaging to the facts to minimise legal exposure and reputational risks. As part of that plan ensure the spokesperson is well briefed and aware of the legal implications. Nowadays smart phones are used as tools to hold people to account e.g. in May West Ham fans were caught on camera phones attacking the Manchester United team bus.⁶ The wider team therefore needs to be aware of processes and procedures when interacting with the public. Employees should be reminded regularly not to discuss any incidents with the media and to direct media approaches to its media manager.

Have clear protocols in place for messaging through social media as a number of major news stories have broken rather than conventional news channels.⁷ Consider using social media tools to inform people to stay away from the affected areas. Keeping spectators informed with clear, calm and controlled communications is crucial to minimising panic and frustration. Co-ordination between all the different agencies and stakeholders is essential to delivering concise and consistent messaging to the public. The same is true when there are last minute security changes e.g. notifying spectators through the media and social media to get to the venue early if security measures have been increased in response to a perceived threat. It was noticeable that there were no grumblings whilst standing in a snaking queue in the rain to get in to the ATP tennis finals in London days after the November Paris attacks, as ticket-holders no doubt expected enhanced security measures to be in place. Even if your ticket terms and conditions permit you to make any changes to entry requirements, good practice would be to ensure that spectators are advised of reactionary changes to security through direct communications e.g. emails to ticket-holders; through the event website and social media; and through adequate signage and sufficient personnel on the ground to inform spectators of the change on arrival.

Build into the plans and procedures evidence collection to assist with any consequent insurance claim e.g. preserving the affected area when safe to do so. Be mindful that there is the potential for plans and documents relevant to the incident to become public in the event of any subsequent investigations, claims or legal proceedings.

Ensure internal procedures enable quick decision making and that those decision-makers are contactable at all times. In doing so, bear in mind the practicalities of mobile coverage and/or internet not being available either due to overwhelming use in the face of an incident; or where the technology systems have been incapacitated. Despite the increasing dependence of businesses on mobiles, internet and instant messaging, the use of radios is still a vital method of reliable communication during events.

Planning, preparation, testing and flexibility are critical factors in the successful delivery of events. Despite recent terrorist attacks around the globe, UEFA recently released a statement about not making any drastic changes to the format of the tournament for this year’s Euros competition but instead focussing on security and contingency and crisis scenario planning.⁸ At the end of May we saw calls for changes to the security plan for the 2016 Euros in response to the Stade de France dress rehearsal weekend (at the cup final between Paris Saint-Germain and Marseille)⁹ indicating the need to have fluid structures and processes to enable rapid decision making and adapting to a change in circumstances. The lawyers are a crucial part of the team to ensure that the contractual landscape enables the event to respond to change and security threats, as noted below:

“When you know that you will need all of the flexibility and commitment that can be mustered with your partners and suppliers in order to deliver a great event, having a legal framework jointly developed with your legal team gives you the confidence to take risks and tackle all the inevitable challenges when it comes to operational delivery.” Mick Wright, Head of Tournament Services at the RWC.

“The biggest advantage for me was the fact that the legal team had worked on an event like this before and could therefore advise on risk mitigation tactics. In these sorts of events, particularly from a security perspective and when dealing with crises situations (e.g. terrorism threat), having a legal team that understands the major events world (the timescale pressures, level of uncertainty etc); recognises the reality of how the security strategy needs to be delivered; and helps to plan and contract for those “what if” scenarios is immensely valuable.” Eloy Mazon, Head of Security at the RWC.

Building into the contract negotiation a show of pragmatism (instead of getting hung up on clauses that will never be used) and building a rapport is likely to secure the buy-in of the counterparty. As an event organiser you only get one chance to get it right (and it can very much be a trial by media if things do not quite go to plan); operational excellence is heavily dependent on stakeholders striving to reach that common goal.