You may think that a lengthy investigation resulting in a £6 million fine would focus your attention on competition law compliance. Sports retailer JJB Sports, however, has found itself embroiled in another cartel investigation. This time though, the investigation potentially has civil and criminal implications.
It appears that JJB Sports approached the Office of Fair Trading ("OFT") in January of this year with evidence of a cartel involving itself and Sports Direct in the sports retail market. The aim of the cartel, which operated between June 2007 and March 2009, was apparently to "dampen" competition in that market. As JJB Sports was first to blow the whistle on the arrangement, it was granted Type A immunity under the OFT's leniency regime. This means that, provided the company continues to cooperate with the authorities, it will receive full immunity from fines.
The cartel however is also now the subject of a criminal investigation following its referral by the OFT to the Serious Fraud Office. Indeed the latter has confirmed that JJB Sports and Sports Direct are being investigated for suspected offences under the Fraud Act and the Enterprise Act.
The Enterprise Act introduced the Cartel Offence into UK law in 2003. Essentially, it provides that any individual who participates in a cartel is committing a criminal offence. If convicted, that individual could face up to five years in prison and/or receive an unlimited fine. However, as JJB has secured Type A immunity, this means that any JJB employees who were involved will receive immunity from criminal prosecution (provided they comply with the OFT's immunity conditions).
JJB Sports clearly learned a very valuable lesson from the replica kits investigation – make sure you are first to the OFT's door! In the replica kits case, JJB Sports was fined £8.373 million which was reduced to £6.3 million on appeal. The company did not benefit under the OFT's leniency regime and therefore received no reduction in its penalty.
It should be stressed that the investigations are still at an early stage and there has been no finding of infringement or guilt. If, however, the company is found to have breached the rules, Type A immunity will not protect JJB Sports from third party damages claims and the adverse publicity which will inevitably follow an infringement decision.