The Court of Appeal’s decision in DAZN Ltd v Coupang Corp [2025] EWCA Civ 1083 is an important reminder that an English law contract can be formed by informal means. The rights to broadcast FIFA’s Club World Cup 2025 in South Korea were licenced by DAZN to Coupang in an agreement formed over WhatsApp and email.

Parties to commercial negotiations should take note of this reminder that a binding agreement can be formed before there is a signed contract, even if both sides expect a formal written agreement to be put in place. This is particularly the case where it is common industry practice to conduct negotiations in this way.

Background

FIFA licenced the broadcasting rights to the men’s football FIFA Club World Cup 2025 to DAZN group, with DAZN permitted to sublicence them in different territories.

Coupang operates an e-commerce platform in South Korea. This includes a video streaming service called Coupang Play.

In January to March 2025, representatives of DAZN and Coupang communicated via phone, WhatsApp and finally email to discuss the possibility of DAZN sublicensing the rights to Coupang. 

On 27 February 2025, Coupang sent an email to DAZN containing a “proposal” to acquire the broadcast and video on demand rights in South Korea on a co-exclusive basis with DAZN for $1.7m. On 3 March 2025 a representative of DAZN emailed representatives of Coupang to say DAZN “will accept Coupang Play’s offer for the FIFA Club World Cup 2025”. 

The following day, DAZN informed Coupang that it had received a higher offer for the rights from a third party. That third party offer was increased the following week. Coupang considered that DAZN had already concluded a deal with it, and ultimately issued proceedings.

In an expedited trial, HHJ Pelling KC determined that Coupang was correct – a contract had been formed between DAZN and Coupang. DAZN appealed.

What did the Court of Appeal say?

The Court of Appeal unanimously dismissed DAZN’s appeal, agreeing with all of HHJ Pelling KC’s conclusions and upholding the contract between DAZN and Coupang. 

Legal test

The Court had recently recapped the principles which are applied to decide whether a binding contract has been formed, even though some matters are still to be agreed. This is described in Smit Salvage BV v Luster Maritime SA (The Ever Given) [2024] EWCA Civ 260.

• The whole course of conduct between the parties must be considered. This includes their conduct after the time at which the contract is said to have been concluded (which may be indicative of whether they thought they had reached a concluded deal).

• A contract may have been concluded even though a formal document is to follow, which may include terms that have yet to be agreed. This depends heavily on whether the parties had agreed all the terms they considered to be essential.

• The court will assess objectively what the parties’ intentions were.

• The burden of proof lies on the party who asserts that a contract was concluded.

• The failure to use the words “subject to contract” is not decisive.

The Court added that when reviewing written communications, it should be recognised that commercial business people often do not use the same language as lawyers. The fact that they may express themselves in less formal or legalistic ways should be understood in context (including if English is not the speaker’s first language) and not subjected to an overly intense examination of the exact words, syntax and grammar used.

Lastly, a context of urgency may be relevant. If performance of any agreement reached is urgent, it is more likely that the parties would wish to have reached a binding agreement more quickly and left less important details for later.

Grounds of Appeal

DAZN had sought to argue the following grounds of appeal.

1. The 27 February 2025 email was not a contractual offer, because it did not demonstrate immediate willingness to be legally bound upon acceptance.

2. The 3 March 2025 email was not an unqualified acceptance.

3. There was no intention to create legal relations because any agreement was subject to contract, with the parties anticipating a formal agreement would be drafted and signed.

Decision

The Court of Appeal noted that the arguments in support of the three grounds were overlapping. As such, Popplewell LJ presented an analysis of the communications as a whole before concluding that this meant the appeal failed on all grounds.

By the time of the 27 February 2025 email, DAZN had already asked Coupang if they were planning to make an “offer” and Coupang had responded that they would. They had talked about pricing, and DAZN had indicated that $1.7m would be sufficient. The essential terms of the deal had thus already been discussed. 

The 27 February email therefore did serve as a formal offer. It set out a summary of the deal terms, and in the context where the preceding discussions had been by WhatsApp and telephone calls, it was significant that it was set out in an email. The Court had heard evidence that in this industry, it was common to reach agreement on the terms in this informal way and then to follow up with a more formal email.

Equally, the 3 March 2025 email followed an assurance that “official feedback” would be sent so that other bidders could be “inform[ed] properly”. The reply email itself said DAZN wished to “accept Coupang Play’s offer” and was described by DAZN immediately afterwards as having been “an email to formalise our acceptance”. All of this indicated that it was formal acceptance of a contractual offer.

The communications between the parties after this point also suggested they considered they had reached a concluded agreement, and that the paperwork to follow was not urgent. The representatives of DAZN and Coupang had mutually congratulated one another in a manner consistent with commercial parties having reached a deal, and used other language indicating that understanding. When a rival bid was referenced, and Coupang objected that their own “deal was finalised” and suggested it may have to resort to legal action, DAZN’s representative responded “I know” and “I understand”, rather than disputing that agreement had been reached.

Further, the Court held there was no reason to think the parties had seen the written contract as necessary to becoming legally bound. The parties had discussed it being appropriate for Coupang to get started on marketing its coverage without waiting for the long form contract. 

Lastly, DAZN used “subject to contract” wording in other matters but had not done so in this case. While the absence of such wording is not decisive, the fact DAZN was clearly familiar with the concept of labelling negotiations “subject to contract” lent weight to the idea it could have done so in this case but had chosen not to.

Comment

The judgment is highly fact specific and is predicated on a certain key points which were not disputed between the parties but may well be in other cases: in particular, the fact that negotiating in this way was industry standard practice and that the parties had agreed all of the essential terms before the 3 March 2025 email. It appears the Court also found DAZN’s subsequent conduct in not disputing that a contract had been agreed with Coupang persuasive, perhaps inferring that the parties had considered themselves contractually bound, but that DAZN had subsequently sought to change its position when a commercially more attractive offer was made by a third party. 

However, there are nonetheless aspects of the judgment which sound a warning to parties involved in informal commercial negotiations as to the risk of becoming bound earlier than they may have anticipated. 

It is particularly notable that the High Court and Court of Appeal have upheld as binding a contract:

• for valuable rights to broadcast a major international football tournament;
• negotiated primarily by Whatsapp messages and conversations between sophisticated commercial parties;
• where English was the second language of one of the negotiators; and
• where both parties anticipated a formal written contract being put in place. 

A long-form written agreement drafted with external legal assistance is therefore not the only way in which parties can find themselves bound by contractual obligations, even for significant sums of money. Although not decisive, it is therefore advisable for commercial parties to state expressly at the outset that negotiations remain ‘subject to contract’ (i.e. subject to a formal written agreement). Careful thought should also be given both to the means by which negotiations are to be conducted and the risk of industry norms producing an unwanted outcome.