SPORT & EU

Having allowed some time to settle opinions and to develop a more paused analysis, Sport&EU draws on the extensive expertise of its members to offer now a more in depth analysis, from different perspectives and disciplines, of the situation created by the CJEU ruling. In the first of this series is the comments, Mark James, Head of Salford Law School (United Kingdom) and a long standing member of Sport&EU. Mark James is a reknown legal scholar, with an international academic reputation. His work in the areas of EU sport law has been published widely in peer reviewed journals. In this intervention, Mark James reflects on the Murphy case with a focus on the state of legal knowledge at governing bodies, listed events and, especially, the possible effects on the consumer. This posts innagurates a series of interventions analysing the results of the Murphy Case so far, even when it is still necessary to wait for the final decision of the UK court thar refered the case to Luxembourg. The opinions included in this post are solely the author’s and, as such, do not necesarily reflect Sport&EU’s.

A ruling that still leaves questions to answer

The ruling of the CJEU in the conjoined cases of QC Leisure and Karen Murphy raises as many questions as it answers. As far as the law is concerned, two issues are clarified and one leaves scope for further analysis. First, there is a clear statement that UK provision that criminalises the importation, sale and use of foreign decoders is a restriction under Art.56 TFEU. Secondly, the network of broadcasting agreements entered into by the Premier League is anti-competitive under Art.101 TFEU because it prohibits the official broadcaster to one country selling decoders and/or facilitating reception to residents in another. Thirdly, no copyright subsists in the actual live football match itself but does in the accompanying logos, music and highlights leaving the scope for further argument over which parts of a transmission, if any, can be shared with the public by a publican such as Karen Murphy.
Although raising many interesting legal issues, so far little time has been spent discussing the impact of the Court’s opinion. Here, I would like to raise three potential issues for further debate: the state of legal knowledge at governing bodies; listed events and the impact on consumers.

The state of legal knowledge at governing bodies

What is perhaps most surprising about this case is that the Premier League was prepared to go to such great lengths and such great expense to seek clarification on two relatively straightforward issues of EU law. The single-minded pursuit of these publicans, and many others over the past few years, demonstrates a clear knowledge of their own legal arrangements and, perhaps, copyright law but a total disregard for the wider context in which their broadcasting agreements are operating. This phenomenon is one that is replicated on almost every occasion that a national governing body or international sports federation finds itself in court; a single-minded determination to prove that their position is right, or that sport is exempted from the application of the specific provisions under discussion, and a refusal to engage in any meaningful manner with the law. It is hard to imagine that either the PL’s in-house legal team or the lawyers it has engaged in this case are so lacking in knowledge of basic EU law, or are so unaware of the way that the ECJ was likely to interpret the TFEU in protection the European single market, but this appears to be the case.
Two days later, the IOC was been found to be similarly lacking in knowledge when the USOC successfully challenged the legality of Rule 45 of the Olympic Charter, which prevents athletes who have been banned for six months or longer for a doping offence from competing in the next two editions of the Olympic Games (one summer and one winter). Whereas previous discussions about this Rule, and the British Olympic Association’s lifetime ban on athletes in a similar position, have focused on whether they are restraints of trade or anti-competitive, the USOC’s case and CAS’s decision were much more straightforward. First, it was held that as the World Anti-Doping Code is incorporated into the Olympic Charter under Rule 44, the ban on competition contained in Rule 45 was an unenforceable variation of the Code. In other words it was ultra vires as the IOC had not followed its own rules and procedures when defining the ban. Secondly, it was held that to ban a person from the Games in this manner ran counter to the prohibition against double jeopardy and, therefore, against the rules of natural justice or procedural fairness, as this was an additional punishment imposed after that which had been handed down by the athlete’s governing body. Once again, the simplicity of the finding masks the lack of appreciation of basic legal principles.

Listed events

The wider impact of the opinion will obviously be felt far beyond the broadcasting of Premier League football matches. One example is where an event is listed by a Members State’s government as being required to be available free-to-air because it is of national importance or resonance. In the UK, all matches in the finals tournament of the FIFA World Cup are listed and must be made available free-to-air and are generally shared between the BBC and ITV whereas most other Members States protect only the games involving their own national team and the final. The ECJ’s opinion would seem to mean that consumers throughout the EU now have the right to buy the necessary hardware, for example a Freesat decoder, to watch games that would otherwise only be available via subscription in their home country. This in turn could have a dramatic impact on the value of sports broadcasting rights as consumers may decide to purchase additional hardware rather than additional subscriptions.

Impact on consumers

Finally, the ordinary consumer appears to be almost invisible in all of these discussions. Although the ECJ have paved the way for consumers to be able to access the cheapest provider of a sports event, the practicalities of doing so mean that its actual impact may in reality be limited. Although I can now legally subscribe to NetMed for my Premier League football, I still want to be able to watch English TV for the rest of the week, meaning that I will require two sets of hardware to support my watching habits. If other events are available more cheaply elsewhere in the EU, I may need further hardware to be able to access these. This multiplicity of decoding equipment could become exacerbated if the current provider is unsuccessful in the next round of tenders, requiring further purchases of hardware to receive the new broadcaster’s programmes. Thus, although in theory my choice is improved and my freedom to receive services enhanced, from a practical perspective it is a freedom not easily exploited. Perhaps the most important legacy of the Murphy litigation would be if there is a sea change in the way that cross-border broadcasting is be accessed that truly puts the consumer at its heart.