Download the application form.

At the end of this year we are saying goodbye to Samuli Miettinen who stepped down as co-editor of the Review due to increasing burdens in his personal and professional life. Samuli is one of the founding fathers of the Sport&EU Review and was co-editor from its establishment. His contribution to the Review has been invaluable and we would like to thank him deeply for all his kick-ups and efforts devoted to it.

We invite authors to consider contributing full papers, forum contributions, book reviews, or members’ announcements for publication in future issues of the Sport&EU Review; a full call for papers can be found here). Further, please consider applying to be a co-editor of the Review. Members’ contribution is vital to keep the Sport&EU Review running!

As always, contributions, comments and feedback is welcome at review@sportandeu.com.

Download Sport&EU Review Volume 3, Issue 2

The Sport&EU Review is entering its fourth year of publication. It is an electronic publication distributed in pdf format that is registered with its own ISSN and is currently indexed in EBSCOhost and International Platform of Sports Law Journals.

The team of three editors is responsible for the timely delivery of the Review three issues per year and, together with the Sport&EU committee, they will be looking at ways of developing the contents and the formats of the Review.

The tasks of the editors comprise:

•  Timely publication and distribution of the journal three times per year
•  Commissioning articles for the journal and managing the peer-review process
•  Editing the journal’s contents
•  Sending out of calls for contributions to the journal, as well as receiving articles and contributions
•  Liaising with the Sport&EU committee to plan the contents and possible development of the journal
•  Proposing medium-term development for the journal

Candidates should send a short CV and a cover letter with a vision statement (goals and plans for the content of the Review as well as an assessment of the current strengths and weaknesses) to review@sportandeu.com by Monday, 13 February 2012.

Applicants will be reviewed by the Search Committee immediately after the deadline submission date. The new co-editor will be involved in the preparation of Issue 1 of 2012 and is expected to be engaged at-par with the other co-editors by Issue 2 of the same year.

The new co-editor needs to be fluent in English. It might be an advantage if she or he has a knowledge of the sport and EU academic disciplines. It may also be an advantage if she or he has contacts beyond Sport&EU that can promote the association and the Review.

The new co-editor will be expected to manage her or his time as to allow for a timely filling of the issues.

Informal queries can be directed to Borja Garcia (b.garcia-garcia@lboro.ac.uk) or the editorial team of the Review (review@sportandeu.com).

We look forward to receiving your proposals. Please remember your involvement in Sport&EU is important to continue our growth.

The book is available to purchase through outlets such as Amazon UK, Amazon (US), MUP/Blackwells or Abebooks (UK). 

The book opens with three chapters that set the context for the country analysis. In this first part the editors review the theoretical framework, Richard Parrish evaluates decisions of the EU, Council of Europe and CAS with an impact on football and, finally, Jonathan Hill presents a view on the europeanisation of UEFA itself. The second part of the book undertakes detailed analysis of the new reality of football in ten different countries: England, France, Italy, Spain, Germany, the Netherlands, Austria, Poland, Sweden and Switzerland. Case study selection has tried to include a variety of factors, from the size of the national leagues, to geographical balance, regulatory tradition or length of EU membership. For the sake of analysis, there is also a non-EU Member State. The book has been well receive within the EU studies academic community. Christoper Hill, Professor of International Relations at Cambridge University commented on the publication: ‘Football is both a major business and an emotional spectacle which holds millions enthralled. As such it deserves serious analysis from people who are both experts and love the game. This book meets that need, and should  be required reading for all those concerned with the phenomenon which is modern professional football’.

This project on the Europeanisation of football has its origins in 2007, when academics gathered in Montreal for the EUSA conference, which included a panel on the new reality of football. To some extent, this project was also conceived as a way to confirm or refute the very tipical claim that accuses the EU to have transformed football in the continent upside down. As it happens, the academics have found many forces of transformation which have contributed to the new face of football. Among the findings of the book, perhaps one of the most interesting is the clear identification of a sense of decline amongst many countries, including some of the largest footballing nations in the continent such as France or Italy. In the cases explored, many of the stakeholders consider that only rich football markets such as England or Spain have the possibility to succeed in moder European football.

The book contributes to the research of football, but it makes also an important contribution to the literature on Europeanisation. David Allen, Professor of International and European Politics at Loughborough University, affirmed on the academic qualities of the book: ‘The contributors to this excellent volume are united by their considerable  knowledge of, and affection  for, the game of football and by their proven abilities as  political scientists. The result is an outstanding and coherent  analysis of the multi-level governance  of European football and a major contribution to the growing  body of substantive research on the phenomenon of Europeanization’.

This collective volume has stressed the need not to restrict Europeanisation to EU-isation, as for example UEFA has also been a potent motor of transformation. The book suggests also the need to study Europeanisation away from traditional political arenas, introducing the so-called transnational-societal realm. The authors have also identified the importance of transnational bechmarking, also known as crossloading. Thus, Europeanisation is presented as a complex process and the book suggests systematising factors to help with analysis.

Over the years of planing, research and production, this project has benefitted from the support of the Centre for the Study of International Governance at Loughborough University, the Amsterdam Institute for Social Science Research, the Institute of Sport and Leisure Policy at Loughborough University, and the University Association for Contemporary European Studies (UACES).

Peer review articles should be up to 7,000 words in length including references.  They might focus on methodology or other chapters from graduate research projects, reviews of particular open questions in a field of study, or draft papers regarding work at early stages of development.  Contributions by both established academics and graduate students are welcome.

In addition to original articles, the Review welcomes forum contributions including summaries of Sport & EU activity, abstracts of recently published or soon to be published papers, book reviews or details of forthcoming books, executive summaries of recently completed research projects, and especially reflections on recent and forthcoming developments in the field of interest of the Association for the Study of Sport and the European Union members.

A new Book Reviews section will be launched in the 2/2011 issue, as well.  The editors thus welcome both submissions of books for review, as well as invites scholars that would be interested in serving as book reviewers.

Additional information can be found on http://www.sportandeu.com/sporteu-review/ or can be obtained by emailing the editors at review[a]sportandeu.com.  Sport&EU Review is indexed in EBSCOhost and International Platform of Sports Law Journals.

In line with Sport&EU’s traditional policy of promoting gender equality, female academics and/or practitioners are specially encouraged to send their proposals, and papers with a focus on gender equity in sport will be also welcome.

For single paper  proposals, send a 250 word abstract, together with a short biography and your contact details.

For panel proposals (maximum of 3 papers per panel) send (in a single document) a 250 word panel abstract, together with a 250 word abstract for each paper. Please also include a chair for the panel (if you cannot find a suitable chairperson we will allocate one) and a biographic note for each presenter.

All paper and panel proposals should be sent to Jean-Patrick Villeneuve at conference2012@sportandeu.com.  The deadline for submissions is 25^th January.

All papers submitted by this deadline will be peer reviewed with confirmation of successful applications provided by 27^th February.

Protecting stadium attendance: an objective justification?

The PL argued inter alia that the territorial allocation of transmission rights is objectively justified to guarantee compliance with the blackout rule, which prevents UK-based broadcasters from showing live football matches on Saturday afternoon (3-5 pm). The stated purpose of this “blackout” is to ensure that spectators are not deterred from attending local football matches or from participating in amateur sport because of the contemporaneous broadcasting of football. The Premier League currently sells live rights to its matches during the blackout period only outside the UK.

The PL argued that the importation of decoder cards would make it difficult, or even impossible, to enforce the blackout rule. The window protected in the country of origin of the card may differ from the blackout period in the UK – times vary from country to country depending on local scheduling customs – or there may even be no such protection. Indeed, this loophole enabled Karen Murphy and others, through the use of a foreign decoder card, to show live Premier League football on Saturday afternoon.

The opinion of the Advocate General

In her opinion, Advocate General Kokott acknowledged that safeguarding participation in football and its character as a direct spectator sport is primarily a sporting interest, which is in principle to be recognized by EU law. She stressed, however, that there are good reasons to believe that the use of a blackout period is also based on commercial motivations. Kokott made three critical observations: (1) it cannot be ruled out that the blackout period safeguards the economic interests of the most important PL members in partitioning the market; (2) the PL has not adequately demonstrated to the Court that the blackout period actually encourages attendance at and participation in matches; and (3) there is evidence to refute this claim. Consequently, Kokott concluded that, in the subsequent proceedings before the High Court in London, ‘a particular strict test’ should be applied to the demonstration of the need of the blackout period to safeguard stadium attendance or participation in amateur sport.

The CJEU judgment

In its judgment, the CJEU similarly acknowledged that the specific characteristics of sport must be taken into account when applying EU law. For the second time since the Lisbon Treaty introduced a Treaty article on sport (Article 165 TFEU), the Court explicitly made reference to this provision:

 ‘it is to be noted that, in the second paragraph of Article 165(1) TFEU, the European Union is to contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structure based on voluntary activity and its social and educational function’ (para 102)

Contrary to the Advocate General, the CJEU did not scrutinize whether the 3 pm blackout rule effectively contributes to its stated, non-economic purpose.[1] Yet the Court unequivocally held that the objective of encouraging the public to attend football stadiums could not justify the prohibition on the use of foreign decoding cards. According to the Court, ensuring compliance with the blackout rule could be achieved by less restrictive means. In its license agreements with broadcasters, the PL could incorporate the contractual limitation not to broadcast Premier League matches during the blackout period.

The end of the PL’s blackout rule?      

The CJEU’s reference to Article 165(1) TFEU is noteworthy. Contrary to cross-sectional clauses in the Treaty (e.g. relating to environmental protection, public health, and cultural diversity), this provision does not materially affect other Treaty provisions. It merely constrains legislative or administrative action by the EU institutions on the basis of Article 165 TFEU. The Court’s reference to Article 165(1) TFEU suggests, however, that account must be taken of the specific characteristics of sport and its societal function in the general application of EU law to sport. While this is not a true innovation in the case law, the mention of these interests in Article 165(1) TFEU does appear to provide further support to the legitimacy of taking sporting interests into account.[2]

The CJEU did not preclude the possibility of the objective of protecting stadium attendance outbalancing certain restrictions of the freedom to provide services. However, the present judgment does confirm that the scope of available derogations should be interpreted narrowly. It is settled case law that a restriction of the fundamental freedoms can only be justified on grounds related to the public interest if it is suitable and does not go beyond what is necessary to attain the legitimate objective. Prohibiting the import and use of foreign decoder cards was clearly considered to be disproportionate.[3]

In my opinion, it is unlikely that the PL could demonstrate that English football imperatively requires protection by means of a blackout period. I share the Advocate General’s scepticism about the blackout rule. Firstly, it is indeed difficult to delineate the claimed sporting concerns from commercial motivations. It should also be noted that UEFA enabled national football associations to block broadcasting hours at the end of the 1980s. At that time, ticket revenues were a crucial source of revenue for professional clubs. The growing demand for televised sports content, which significantly increased the airtime of football, was perceived as a threat to this volatile revenue stream. Secondly, there are appealing arguments in favour of the contrasting claim that live TV coverage complements, rather than endangers, stadium attendance. The empirical research on the impact of live broadcasting on stadium attendance is far from conclusive. Furthermore, for the season 2011-2012 the number of football associations in the EU exercising the right to block broadcasting hours has decreased to six (only three outside the UK). Why is it that only a minority of UEFA members sees virtue in defining blackout periods?

What is clear at this point is that, for the duration of the existing Premier League broadcasting contract, EU law allows at least individuals to use foreign broadcasting services to watch live Premier League football during the blackout period. For those that get their hands on foreign decoder cards, the blackout rule thus becomes obsolete. For future EU tenders, the PL might still consider not to market any live rights to 3 pm kick-offs. This would ensure that they cannot be shown within the UK, but it would also mean that European consumers would get to see fewer live games. The time is now, if not long overdue, to fundamentally rethink the true meaning and effectiveness of the blackout rule.

Daniel Geey discusses CJEU ruling on the Murphy case (C) ISportconnect on Vimeo.

The Recent Decision

On 4 October, the CJEU ruling was published. In what many saw as a blow to the PL, the CJEU found that restrictions on the import, use and sale of foreign decoder cards giving access to PL matches were contrary to the EU rules on freedom to provide services and competition. 

There were two main facets of the decision. 

1. The first was that the Court emphasised that the PL could not put an absolute block on sales betweenEuropeanMemberStateterritories. The CJEU held that national law which prohibits the import, use or sale of foreign decoder cards was contrary to the fundamental EU freedom to provide services. This could not be justified by the objective either of protecting intellectual property rights or of encouraging the public to attend football stadiums. Therefore Mrs Murphy should be allowed to go to anotherMemberStatein order to get a decoder and a decoder card.
2. The CJEU did however make reference to a number of copyright issues. The sting in the tail for Mrs Murphy is that there appear to be unresolved issues to do with the copyright in the PL graphics, logos and the PL anthem. This may mean that publicans like Mrs Murphy would need to receive consent from the rights holder (i.e. the PL) to broadcast PL matches which come with the associated branded logos and graphics.  As Mrs Murphy broadcasts those logos when showing the live games, one interpretation of the Court’s ruling is that she would need further authorisation from the PL to show the pictures.

The impact

The biggest impact of the ruling will undoubtedly be on the PL itself and its licensees such as Sky. The PL will not be able to prevent the free circulation across borders of decoder cards giving access to Premier League matches. This could lead to pan-EU licensing of the rights. The PL continue to argue that the copyright issues highlighted above will still prohibit publicans like Mrs Murphy broadcasting live PL football matches using her Greek subscription.

Conclusion

The above implications are but speculation at present. This is because the answers that theEuropean Courthas given will now be interpreted in the High Court in coming to its final decision.  From a practical perspective it may not be until the end of the current PL season that a decision is taken by the English courts.  It means that rights holders, publicans and European consumers will have to wait a little longer to see who has ultimately won this match.

You can follow Daniel Geey at www.twitter.com/footballlaw

(c) PL Chadwick – Reproduced under CC license.

The impact of European Union law and regulations on sport is a regular topic for members of Sport&EU, but in recent weeks it has reached once again the wider public with the ruling of the Court of Justice of the European Union (CJEU) on the joined cases of QC Leisure and Karen Murphy, quite popularly known as the Murphy Case, following the name of the now popular Portsmouth landlady who was sued by the Premier League for showing live football matches using a greek decoder. In the hours and days following the Court ruling legal, political and economic pieces populated the informed (and sometimes also the not so well informed) media. Among others, the keynote speaker of our own 2011 Sport&EU Conference, David Conn, also reported on the CJEU ruling.

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.

Katarina Pijetlovic (right) with British journalist Andrew Jennings at 'Play the Game'. (c) Play the Game and Jens Astrup.

A Sport&EU member, Katarina Pijetlovic, gave a talk on the topic ‘Curious case of draws at the ITF Grand Slam tournaments 2008-2011’ at the Play the Game conference held in Cologne on 3-6 October 2011. According to Pijetlovic, facts and statistics presented strongly indicate that draws might have been fixed at the very top of men’s tennis for the past four years. The presentation in Cologne and the information contained in this report are Katarina Pijetlovic’s and do not necesarily represent Sport&EU’s views.

BACKGROUND

For many years, the first two spots on the ATP rank list shifted between Roger Federer known as a hard and grass court specialist and Rafael Nadal known as clay court specialist. The two players held a virtual duopoly over men’s tennis, both are sponsored by NIKE and have a massive fan-base unmatched by any other player. In 2007 Novak Djokovic rose to No. 3 and a year later, in the end of 2008, Andy Murray rose to No. 4 to threaten the dominant duo.

General results of all the tournaments (standings at the end of the US Open 2011):

• Nadal-Murray: 13:4 (4 of these matches were played on clay – Nadal leads 4:0)
• Federer-Murray: 6:8 (the two never played on clay)
• Nadal-Djokovic: 16:14 (11 of these matches were played on clay – Nadal leads 9:2)
• Federer-Djokovic: 14:10 (4 of these matches were played on clay – Federer leads 3:1)

INCREDIBLE STATISTICS

In 12 out of 12 Grand Slam tournaments played on hard and grass courts between 2008-2011, Federer and Djokovic were always drawn to the same half of the draw-sheet, while Nadal and Murray were drawn to the other half. In addition, in five of those 12 tournaments Murray was not among the first four seeded players, so his draw was conducted separately five times. Thus, the statistics are as follows: to get the same result 12 out of 12 times, probability is 1 in 4096. For the case of Murray’s separate draws which produced the same result 5 out of 5 times, it is 1 in 32. THEREFORE, THE PROBABILITY TO OBTAIN DRAW RESULTS AS OBTAINED AT THE 12 GRAND SLAM TOURNAMENTS IS 131072 TO 1 (4096 x 32 = 131072).

Combined with a study conducted by ESPN on the draws of unseeded players at US Open, which resulted in 1 in 250000 probability, it is ca. 32 BILLIONS TO 1. Media that has covered the Sport&EU member’s study thus far include Der Spiegel, Daily Mail, El Pais, Le Monde, and about hundred others. However, so far the organisers of the Grand Slams and the ITF are avoiding official response to the issue. Details of the study available here. 

Katarina Pijetlovic is a regular Sport&EU member and can be contacted through this link.