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EU Sports Law and Policy Summer School1st September 2017

Sports Broadcasting and EU law

Dr. Andrea Cattaneo - @Andrea_Cattane0

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Sport Broadcasting

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Broadcasting Rights

‘Broadcast’ (Copyright, Design and Patents Act 1988): “electronic transmission of visual images, sounds or other information which is transmitted for simultaneous reception by members of the public”

‘Broadcasting-related Services’ (Ofcom Code): “all broadcasting activities licensed by Ofcom, e.g. television and radio services. Additionally, a website that provides content clearly and directly related to a broadcasting related service may itself be a ‘Broadcasting-related Services’”

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Owners Products

Live

Broadcast

Delayed

Broadcast

Archive

Content Consumption

Free-to-Air TV

Pay TV

Pay Per View

TV

Broadcasters

Highlights

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Sports Broadcasting Rights

A set of contractual relationship: Between clubs andSGBs, between Right owners and Broadcasters, betweenBroadcasters and Consumers

Subject to - Statutes of SGBs, National Law, EU Law

The most common selling practice – Collective selling -may pose concerns for:

- Clubs- Broadcasters- Consumers- Citizens

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Collective Selling of TV rights

Collective Selling restricts Competition:

Article 101 TFEU: prohibits Agreements between undertakings that have object/effect of restricting competition on the market

Article 101(3) TFEU: agreements may be exempted if (1) contribute to improving the production or distribution of goods; (2) restriction is proportionate; (3) restriction does not eliminate competition; (4) consumers receive a fair share of the benefit

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Collective Selling of TV rights

Champions League Case

UEFA sold its free-to-air and Pay TV rights on an exclusive basis, to one single broadcaster per territory, in a multi-year deal.

2003 European Commission Approval and UEFA Commitments

Competitive Bidding for the rights

Limitation of Exclusivity to a 3 year period

Subdivision of Rights into Packages

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Collective Selling of TV rights

FAPL Case

2006 European Commission Approval and FAPL Commitments

Competitive Bidding for the rights

Limitation of Exclusivity to a 3 year period

Subdivision of Rights into Packages

Stand-alone unconditional bids

No single-buyer rule

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Collective Selling of TV rights

OFCOM: any remedy which prevents or restricts aggregation to the extent that would be necessary to eliminate market power is also likely to risk sacrificing some of these benefits, […] it might result in reduced convenience for some consumers, who would have to take multiple subscriptions to get the content they want.

In Germany, Bundeskartellamt held that the arrangement exempted by the EU Commission was not beneficial enough for the consumers. It required that highlights of the matches were shown on a free to air Television at a time accessible to most of the people.

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Collective Selling of TV rights

Problems

From the 2009 – 2012 cycle, UEFA sells the rights on a platform neutral basis. Successful bidders will be awarded exclusive rights on all the platforms.

No Single-Buyer Rule has to be applied in relation to the relevant market

BT Deal 2016 -2019 - BT has successfully acquired all the packages of Champions League Media Rights available for the British market.

No subdivision in packages

No “No single-buyer rule “

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Live Matches in Pubs

Some pubs have resorted to showing games via international satellites due to increasing cost

The FAPL vigilant in pursuing ‘unauthorised’ screening of matches.

Murphy v MPS Ltd [2007] and FAPL Ltd v QC Leisure [2008] Prosecutions for breach of copyright and unauthorised decoders - Defence based on Art.56 TFEU freedom to provide services and Art.101 TFEU anti competitive practices

The CJEU delivered it decision in a series of joined cases on 4 October 2012, C-429/08 Karen Murphy v MPS Ltd [2012] 1CMLR 29

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Live Matches in Pubs

The Greek decoders were not ‘illicit devices’. This is not a case of piracy or accessing the broadcasts for free

Any legislation or conduct that prohibits sale of the decoders in another member state is contrary to Art.56 TFEU

A clause of an exclusive licence agreement is a restriction on competition and therefore prohibited by Art.101

These restrictions could not be objectively justified

High Court found copyright infringement of the Premier League anthem, graphics and logos used in the programme

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Post-Murphy

No English language commentary for matches broadcast abroad

Limit on the number of Live matches broadcast abroad (not in force anymore)

Commission Investigation on cross-border provision of pay-TV services (Commitments made binding on Paramount in July 2016)

Investigation is focused on passive – unsolicited sale

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Protected Events

EU Directive Audio Visual Media Services (previously Television Without Frontiers Directive)

A major event should not be broadcast in such a way that a ‘substantial proportion of the public’ could be deprived of the possibility of following the event on free-to-air television

Citizens and not Consumers

The MS may draw up a list with designated events, national or non national. MS have to notify this list of events to other MS

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Protected Events

Major Event: at least two of the following criteria

it has general resonance in the Member State, and it is not significant only for those who ordinarily follows that sport or activity;

the event is generally recognised for its distinct cultural importance for the population of the Member State, especially as a catalyst of cultural identity;

the event is a competition of international importance and a national team is involved;

the event has been traditionally broadcast on free television and has commanded large audiences

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Protected Events

Effects of the Directive – Free to air transmission of the event

It restricts the freedom of broadcasters and SGBs

UK list approved by EU Commission on 16/10/2007

FIFA and UEFA v Commission T-385/07. Challenged UK’s decision to designate entire World Cup and Euro finals. However, Commission and CJEU have held these finals are single events and can be protected in their entirety

Commercial rights can be restricted against the right of information of the public

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Protected Events in the UK

Regulated by Part IV Broadcasting Act 1996

Divides broadcasters into two categories: pay-TV and free-to-air

Qualifying broadcasters are those whose channels are available without payment to at least 95% of the population

Listed events are categorised as Group A (full live coverage protected) or Group B events (secondary coverage protected)

The rights to broadcast live listed events of Group A events or highlights in the case of Group B must be offered to qualifying broadcasters

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EU Sports Law and Policy Summer SchoolSports Broadcasting and EU law

Any Questions?

Dr. Andrea Cattaneo - @Andrea_Cattane0