On February 4, 2024, the American Inter Miami team and the Hong Kong team held an international football friendly match at the Hong Kong Stadium. Messi, who was originally scheduled to participate, did not participate. (Photo provided by People's Vision)
On February 4, 2024, the American Inter Miami team (hereinafter referred to as "Miami Team") and the Hong Kong team held an international football friendly match at the Hong Kong Stadium. However, what was originally a fan carnival night has become a hot topic in the media due to Messi's absence. In this incident, the biggest victims were the ticket-buying fans. They wanted to witness the elegance of the world champion, but instead faced the result of Messi's absence. You can imagine their disappointment and anger.
There are different perspectives on Messi's absence. This article reviews commercial advertising and advertising law theory. Before analyzing the incident, it is necessary to introduce the facts of the incident. According to the content of the conversation between the Culture, Sports and Tourism Bureau of the Hong Kong Special Administrative Region Government (hereinafter referred to as the "Culture, Sports and Tourism Bureau") and the media, we can describe the relevant facts of the incident as follows: The Culture, Sports and Tourism Bureau attaches great importance to this event and is providing When providing financial support, there is a clause requiring Messi to participate, except if he is unable to participate due to safety or health conditions. Until the beginning of the second half of the game, the Culture, Sports and Tourism Bureau was still communicating with the event organizers about Messi's appearance. However, it was not until ten minutes before the end of the game that the event organizers informed Messi that he could not participate due to injury. In response to questions raised by the media, the Culture, Sports and Tourism Bureau pointed out that whether Messi's absence from the competition complies with the exclusion clauses of the contract needs to be determined based on the communication situation and relevant information.
Put aside the relevant provisions of the contract for the time being. As far as this event is concerned, there is a legal issue, that is, whether there are problems with the event organizer's advertising of the event and how to pursue its legal liability if there are problems. Although the incident occurred in Hong Kong and Hong Kong's local laws should apply, because some fans are from mainland my country, their protection also involves relevant laws of my country, so this article mainly discusses it from the legal perspective.
From the perspective of advertising law, the first issue that needs to be clarified is the commercial advertising of the event. In this regard, judging from the poster released by the event organizer Tatler Asia, in addition to promoting the name of the team, the time and place of the game, the poster also contains a photo of Messi himself wearing the No. 10 jersey, and Messi is standing The other two players are in a prominent position in the middle. From a legal point of view, unless there is evidence to prove that the organizer of the event did not intend to arrange for Messi to play in the first place, there is no problem with the legality of the advertisement.
However, the fact that there is no problem with the legality of advertising does not mean that the event organizer has no responsibility. The question that needs to be discussed here is whether the poster forms part of the ticketing contract between the event organizer and the fans who purchased the tickets. Generally speaking, commercial advertisements are invitations to treat rather than offers. However, whether based on British law or mainland my country's laws, commercial advertisements can constitute the content of a contract when certain conditions are met. Judging from the content of the advertising poster involved in the case, the poster does not contain specific and clear content such as price or Messi's appearance, so it cannot be directly considered to constitute the content of the contract.
However, whether commercial advertisements constitute contract content needs to be determined based on specific circumstances. Judging from the posters involved in the case, Messi always appears in the posters and occupies a prominent position. Although the poster may only show Messi as a main player of the Miami team and does not represent a commitment that Messi will participate, it does not rule out the possibility that Messi himself will participate in this competition as a main player. In advertising law theory, if there are different understandings of an advertisement, it should be determined based on the understanding of ordinary consumers. Therefore, as far as the posters involved are concerned, the perception of general consumers is very important.
The author believes that the belief that Messi will participate is more likely to be the understanding of ordinary consumers, because to a large extent, fans buy tickets because Messi will participate. In fact, the Culture, Sports and Tourism Bureau has also put forward requirements for Messi to participate. In addition, the ticket purchase website shows that there is a "Buy Now" link below the poster, and a prominent photo of Messi appears at the top of the poster. The expensive ticket price is also directly related to Messi's participation.These factors reinforce the perception that Messi will play as a regular for Miami.
In fact, as early as the Carbolic Smoke Ball Co. case in the UK in 1893, it was confirmed that the advertiser's commitment can constitute the content of the contract. In this case, the defendant promised to the plaintiff that he would not catch a cold if he used his pill called "Smoke Ball" according to the instructions, and promised to pay 100 pounds to users who caught a cold after using the pill. The plaintiff caught a cold after using the pills, so he filed a lawsuit against the defendant to pay compensation. The court found that the defendant's advertisement constituted a valid promise. In our country, although Article 473 of the Civil Code of the People's Republic of China considers commercial advertising to be an invitation to treat rather than an offer, when the invitation to treat meets the conditions of an offer, it can constitute an offer and thus constitute the content of the contract.
Of course, this does not mean that any commercial advertisement will constitute a contract. The author believes that only those important contents may constitute the contents of the contract. The standard of importance can be determined by referring to Article 28 of the Advertising Law of the People's Republic of China, such as the quality, performance, origin of the goods, and the promised information related to the goods or services, but the theoretical interpretation is not limited to this. As far as this incident is concerned, since the event organizer's advertising involves Messi's promise to participate, and this promise has a substantial impact on consumers' purchasing decisions, it should constitute the content of the contract. In the case of Messi's absence from the game, the event organizer has constituted a breach of contract and should bear the liability for breach of contract to the fans who purchased the tickets.
Some people may worry that if commercial advertisements are regarded as contract content, it will affect the normal development of commercial advertising activities. This concern is not unreasonable. However, on the one hand, the advertiser can exclude the advertising from forming part of the contract by explicitly stating it. For example, it can be clearly stated that it is a commercial advertisement and does not constitute a contract. On the other hand, there is a traditional saying in my country that “a promise brings a thousand pieces of gold”, and advertisers should abide by the principle of good faith in their advertisements. If an advertiser makes a promise in advance regarding conditions that are impossible or will not occur, and the promise affects the conclusion of the contract, it can be deemed to constitute fraud and be held liable for infringement.
(The author is an associate professor at Tianjin University Law School)
Wang Shaoxi
editor Qian Haoping
