Ah golf.  That sport (? – pastime) much beloved of aspiring professionals. Capable of taking up infinite amounts of two things which for any working person are in short supply: time and money.  And for what?

For what indeed.

Few things can compare to the pleasure of standing over a stationary golf ball on a fine spring afternoon (when you should, very probably, be in the office), planning your shot and knowing, knowing with the absolute certainty which comes from having had hours of lessons over the winter, having had your swing analysed and re-analysed within the comfortable confines of a driving range and – most importantly – having spent a fortune to acquire a set of “custom fitted” clubs precisely engineered to match your swing speed and body shape  – that the ball absolutely has to go where you are aiming it.

What happens next is, of course, anybody’s guess (such is the nature of the game) but that moment, that moment of certainty, is priceless.   Or at least it was until now….

In a recent decision (Ping Europe Limited v Competition and Markets Authority [2018] CAT 13) the Competition Appeal Tribunal has taken steps to ensure that even clubs which are notorious for being “custom fitted” will now be available for purchase on-line and hence, one would expect, more cheaply.

Section 2 Competition Act 1998 (“the Act”) prohibits trade practices which have as their object or effect the prevention or distortion of competition within the United Kingdom.

Section 4 the Act states that an exemption from the prohibition may be granted if it can be established that the agreement/practice:

  1. Contributes to:
  2. Improving production or distribution; or
  3. Promoting technical or economic progress,

While allowing consumers a fair share of the resulting benefit; but

  1. Does not
  2. Impose on the undertakings concerned restrictions which are not indispensable to the attainment of those objectives; or
  3. Afford the undertakings concerned the possibility of eliminating competition in respect of a substantial part of the products in question.

Ping Europe Limited is the UK based arm of Ping Inc. – a well known manufacturer and distributor of golf clubs.

The Ping brand was founded by Karsten Solheim in the United States in the nineteen fifties.  He applied his experience as an aerospace engineer to the challenge of golf club design and developed the principle of custom fitting gold clubs to each individual golfer.

Hence the Ping custom fitting process was born involving:

  1. An initial interview with a trained fitter;
  2. Static measurement of the golfer;
  3. Dynamic swing test; and
  4. Ball flight analysis.

The idea caught on and by the early 2000’s most prestigious club manufacturers (and some less prestigious ones) were offering some form of custom fitting for their clubs.

More recently however the trend for custom fitted clubs has run up against that other great trend of our times – the trend for online purchases and price comparison (with people simply selecting the cheapest source for a given product).  Given the overheads incurred by physical (bricks and mortar) stores and the costs of the fitting process itself, this would rarely be the specialist stores at which custom fitting is carried out.

In order to protect brand image, and to ensure that any customers had the full benefit of the product (which can only – Ping say – be optimally used following properly carried out custom fitting) Ping required their authorised retailers (referred to as “account holders”) to enter into an agreement which prohibited them offering Ping clubs for sale online.

In August 2017 the Competition and Markets Authority (CMA) found these agreements to be in breach of the Act and imposed a fine on Ping of £1.45M.

Ping appealed to the Competition Appeal Tribunal (CAT) on the basis that a company should (under human rights legislation) be free to pursue its business and, where the properties of the product to be sold are fundamentally inconsistent with internet sales, not allowing a prohibition on such sales was an infringement of that right.

In a judgment heavy with citations of authorities from the European Court of Justice and other European Courts and which explicitly points out that s.60 the Act requires the CMA (and the CAT) to ensure, so far as possible, that questions arising under the Act in relation to competition in the United Kingdom are dealt with in a manner which is consistent with the case law of the European Court of Justice and General Court (all of which will no doubt be seen by some as further justification for Brexit)  – the Tribunal had little sympathy with this argument.

Whilst it was accepted that the ban on internet sales did promote non-price competition (by promoting the face to face custom fitting of golf clubs), any benefit achieved was not proportionate to the harm to competition resulting from the ban.  The decision of the CMA was therefore upheld – although the fine imposed was reduced by the CAT to £1.25M.

Hopefully then we can all look forward to the availability of “custom fitted” Ping clubs on-line (which will not actually be custom fitted).  The question is, however, will we still have that “moment of certainty” referred to above when we have the niggling thought, in the back of our minds, that the clubs we are using are (even slightly) less expensive than they could otherwise have been?

Roll on springtime!

Further Reading:

Lease, Licence or Tenancy at Will? – Which to Choose and When

Do You Know All the Legal Facts About Statutory Sick Pay?

Unregistered Land – A Cautionary Note

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