A study into sports media rights commissioned by the European Commission and published today says that the landmark copyright case between English football’s Premier League and UK publican Karen Murphy has changed little in the way that rights are marketed.
Today’s report goes on to state that the provisions adopted by the league following the case have left consumers in Europe, outside the UK, worse off than they were before. In the October 2011 ruling on the case, the European Court of Justice said that the way the league had tried to hermetically seal exclusivity within national boundaries through onerous exclusivity clauses was not compatible with EU law.
In its sales into Europe since the case, the league has dropped such clauses but sells rights in the local language only and has limited the number of 3pm kick-offs which can be broadcast to one, in order to curb the unauthorised satellite broadcasts of Premier League matches in UK pubs on Saturday afternoons.
Previously, many broadcasters in Europe offered multiple 3pm kick-offs with the option of English-language commentary. Such options were popular with expat communities and in regions such as the Nordics, where English football is hugely popular.
The league does not broadcast 3pm kick-offs in the UK, in line with the Football Association’s application of the “closed hours” rule designed to protect stadium attendances and participation in grassroots football.
The report, by the Asser Institute and the University of Amsterdam, says: “The English Premier League has responded (to the ECJ ruling) by introducing new contractual provisions that, unfortunately, make consumers everywhere in the EU worse off. The de facto imposition of the UK ‘closed period’ rule for Premier League matches across Europe…raises questions about the public interest dimension of this old-fashioned measure and may indicate competition issues.”
The report says that intervention by the European Commission in the sports-rights sector – in its major investigations into the sale of rights to the Uefa Champions League, the Premier League and the German Bundesliga – has had mixed results in terms of opening up competition.
It says that the remedies imposed by the commission, and followed by several national competition authorities (NCAs), have “effectively addressed” concerns about output restrictions related to collective selling.
“The problem of warehousing of rights or unused (new media) rights no longer seems to be a concern. The positive impact of EU competition law intervention on the supply-side dynamics is all the more evident when considering prevailing practices in Member States where NCAs have not (yet) intervened. In these countries, sports media rights are still sold in one exclusive bundle, for a long period of time, and without a transparent public tender procedure,” the report says.
However, it argues that the intervention has been less successful in terms of challenging existing market dynamics at the “downstream” level – in national broadcast markets – to the detriment of smaller operators, especially those trying to acquire digital rights.
The report continues: “In various markets, the main vertical effect of the chosen remedies has been that in the downstream market a duopoly emerged in the place of a monopoly. This also has implications for competition in new media markets. The emerging trend to market premium sports media rights on a platform-neutral basis favours powerful vertically integrated media content providers. This risks negating the progress that was made in enabling smaller operators to acquire earmarked packages for certain platforms.”
The report also looked into the relationship between sports organisations and betting and recommended that a “centrally driven distribution system” should be put in place that “allocates the revenue derived from (commercial) betting or other gambling services to sport on the basis of transparent criteria (i.e. proportions and beneficiaries prescribed by legislation).”
It added: “A right to consent to bets could be considered as one of the available mechanisms to protect the integrity of sport from betting-related match fixing on condition that extensive and resource-intensive institutional and operational requirements necessary for its successful implementation can be satisfied. Other mechanisms may be explored by Member States to safeguard the integrity of sport competitions in relation to betting.”