DAZN v Coupang and the WhatsApp agreement

Answer

In June of this year, the Court of Appeal handed down another consequential judgment concerning contract formation in English law. In DAZN Limited v Coupang Corp. [2025] EWCA Civ 1083, the court found that, despite reference to the preparation of a forthcoming written agreement, a legally binding contract had already been formed on the basis of WhatsApp messages and emails between the parties.

In an era of increased use of informal communication channels, DAZN v Coupang is an illuminating case that all businesses and their agents should take time to consider.

Background

The dispute stemmed from the sublicensing of broadcasting rights in South Korea for the 2025 FIFA Club World Cup. FIFA, as the original rights holder, had granted a global licence to DAZN, a digital sports media company. DAZN was authorised to sublicense these rights in various jurisdictions, including South Korea.

Coupang, a major South Korean e-commerce and streaming platform, entered into discussions with DAZN to acquire co-exclusive live and video-on-demand rights for the tournament. Negotiations took place over several months, primarily through WhatsApp messages and phone calls between senior representatives of both parties – including for DAZN, Andrea Radrizzani, the ex-owner of Leeds United Football Club.

In February 2025, Coupang sent DAZN an email proposing to pay $1.7 million for the rights (the ‘February email’). DAZN responded in March (the ‘March email’), confirming acceptance of the offer by stating "I am pleased to inform you that we will accept Coupang Play's offer" and noted that contract drafting would begin.

Following the March email, Coupang were keen to promote the event on their platform as soon as possible but noted that it may be sensible to hold off until the contract is finalised. Notwithstanding the qualification given by Coupang (on the contract needing to be finalised), DAZN stated that it felt that the earlier Coupang started promoting the event the better.

After complications arose surrounding a later rival bid, DAZN asserted that no binding agreement had been formed, which led to proceedings in the commercial court, where HHJ Pelling KC held that a contract had been concluded. The court granted Coupang specific performance and injunctive relief to protect its broadcasting rights and prevent DAZN from breaching the agreement by withdrawing broadcast rights from Coupang and selling them to a higher bidder.

DAZN appealed the decision on three grounds:

• Ground 1: that the February email didn’t constitute a contractual offer, as it lacked an unequivocal intention to be bound.
• Ground 2: that DAZN’s March email wasn’t an unqualified acceptance.

Ground 3: that the parties didn’t intend to create legal relations at the time, as the agreement was subject to contract and a formal document was anticipated.

Additionally, or in the alternative, DAZN challenged the scope of the injunctive relief on two grounds:

• Ground 4: that the court had wrongly inferred an intention to breach the agreement from DAZN’s submissions.
• Ground 5: that the injunction extended beyond the agreed terms by preventing DAZN from distributing the broadcast feed to third parties, including via its YouTube channel.

The Court of Appeal's decision

In deciding whether a contract had been formed, the court considered the principles set out in Smit Salvage BV v Luster Maritime SA (The Ever Given) [2024] EWCA Civ 260 [2024] 2 All E.R. (Comm) 504 | [2024]. These principles are:

• the whole course of the parties’ negotiations must be considered;
• even if a formal document is expected to follow that sets out further provisions, a binding contract can be formed;
• whether the parties intended to be bound is determined objectively from their words and conduct;
• the burden lies on the party asserting that a contract has been concluded to establish that this is the case; and
• the context of the negotiations is very important, an absence of “subject to contract” wording isn’t decisive.

Popplewell LJ, who gave the leading judgment, expanded on the principles of The Ever Given case:

• Focusing on individual exchanges can be misleading, therefore the entirety of the parties' negotiations both before and after the alleged contract must be considered.
• In deciding if a binding agreement has been entered into, where a formal contract is subsequently expected, the question is whether all essential terms have been agreed or if central provisions are left to discuss.
• The court should interpret communication based on its substance and context. Business negotiations rarely match "the precision of language which lawyers aspire to in contract drafting" and so the court shouldn’t base subsequent analysis on these standards.
• Where negotiations occur in an urgent context, it’s more likely the parties intend to be bound, despite the fact there may be details left to agree.

With all three presiding judges agreeing (Popplewell LJ, Newey LJ and Arnold LJ), the High Court's decision was upheld as it appeared clear "that the parties had reached an agreement by which they intended to be immediately and legally bound by the exchange of the emails in question". Specifically, the court identified several key factors:

• By the time of the February email, DAZN had queried whether Coupang were going to make an offer. Coupang confirmed they’d be making an offer and the $1.7 million subsequently offered matched the figure previously touted by DAZN.
• The March email simply described the February Email as an "offer".

Following the March email, when DAZN informed Coupang of the rival interest, a Coupang representative stated "but the deal was finalised" to which the DAZN representative replied: "I know… leave it with me." It was therefore noted that DAZN hadn’t disagreed with the notion that the agreement had been concluded by the March email.

• On 14 March, when Coupang informed DAZN that they would be forced to take legal action, the DAZN representative replied stating "I understand" – this indicated that they acknowledged the existence of a binding agreement.

The court also considered several additional and more general points when reaching its decision. It noted that DAZN had actively encouraged Coupang to begin marketing the Club World Cup without waiting for the long form agreement. There was no indication that the parties intended the negotiations to be conditional on a formal, signed document being agreed – for example, by using the label "subject to contract" or similar language in their discussions. DAZN’s own evidence indicated that they typically negotiated "binding heads of term" before moving on to long form contracts and that they regarded the heads of terms as binding agreements. Finally, the court found that the urgency surrounding the performance of the agreement made it more likely that the parties intended to be bound.

Commentary

DAZN v Coupang is a reminder to always be aware of the commercial practicalities of how clients operate. The importance of understanding the growing prevalence in the use of informal communication channels to conduct business negotiations, and the risks this can pose, can’t be understated. As demonstrated by this case, UK courts require fewer formalities in concluding that a contract has been formed and can often do so with relative ease. It’s now established that digital communications can form legally binding contracts, especially as the court commented that the use of media such as WhatsApp has become an industry norm.

Lawyers who are quick to be on top of these developments in standard practice will be in a better place to serve their clients and mitigate these risks. Advice should be reiterated that "subject to contract" wording is important in all forms of negotiations and even if the informal communications run in parallel to complex contractual negotiations, where a formal document is to follow, this doesn’t preclude the possibility that a binding agreement can be formed. It’s therefore key that lawyers make their clients aware of the need for developing commercial practices to be uniform and coordinated as far as possible in order to mitigate exposure to legal risks.

As demonstrated by DAZN the risks are great, rights are universally the foundation of value within the sports industry and despite DAZN holding these rights, they found themselves bound to a contract that is worth millions of dollars less than they could’ve received.

Tom Humphrey is a trainee solicitor at Michelmores LLP.