• Competing for the Premier League
  • December 8, 2011 | Author: Jeanette Ciantar
  • Law Firm: Fenech & Fenech Advocates - Valletta Office
  • To all you eager Premier League fans out there, you will be pleased to hear that you may soon be able to watch live Premier League matches from the comfort of your own home at cheaper rates than ever before. Rather than relying solely on local authorised distributors, you may now use foreign decoding devices to watch live Premier League matches.

    This is a result of a recent judgment of the Court of Justice of the European Union which has given the green light to the removal of barriers for broadcasting rights for the live transmission of Premier League matches all over Europe.

    In brief, the ECJ, in the case Football Association Premier League Limited & Others vs. QC Leisure & Others, held that the English Football Association Premier League (FAPL), the body that licences the broadcasting rights for English Premier League matches, may not prohibit television viewers in one country from using decoder cards legitimately bought and imported from broadcasters in another country.

    So how is the licensing of broadcasting rights for Premier League matches regulated and why has it been shot down by the European Court? Basically, the FAPL grants licences in respect of those broadcasting rights for live transmission, on a territorial basis and for three-year terms. By regulating broadcasting rights in this manner, the FAPL intended to maximise the value of the rights to its members, the clubs.

    The more exclusive the right to broadcast, the more value is attached to that right. These rights are granted on an open competitive tender and the winner of the bids is granted, for an area, a package of broadcasting rights for the live transmission of the Premier League matches. It is granted the exclusive right to broadcast those matches in that area.

    In order to protect this exclusivity, all broadcasters must undertake in their licence agreement with FAPL, to prevent the public from receiving their broadcasts outside the area for which they hold the licence.

    Therefore, broadcasters are specifically prohibited from supplying decoding devices that allow their broadcasts to be decrypted for the purpose of being used outside the territory for which they hold a licence. It is this particular prohibition that was heavily criticised and shot down by the European Court. It had become common practice for restaurants and bars in the UK to buy from an authorised dealer a card and a decoder box which allowed them to receive a satellite broadcast in another member state, the subscription to which is less expensive than that of the licensee for live Premier League broadcasting in that state. It must be made clear therefore that those decoder cards would have been manufactured and marketed with the authorisation of the service provider, it is only their use which is done in an unauthorised manner.

    In this case, the national legislation concerned, UK law, actually gave protection to these exclusivity rights. That law actually prevented those services from being received by persons resident outside the member state of broadcast, so that legislation has the effect of preventing those persons from gaining access to those services. UK law was therefore found to restrict the freedom of services between member states and hence was in breach of EU law. Yet even in the absence of any such national legislation, any contractual obligation aimed at granting absolute territorial exclusivity in a national market and making penetration of that national market difficult for competitors from outside the territory, is anti-competitive and hence unenforceable.

    An agreement will be found to be contrary to EU law if it has as its object or effect the prevention, restriction or distortion of competition. Now insofar as the licensing agreement between the FAPL and its broadcasters prohibit the broadcasters from providing cross-border services in connection with those matches, all competition between broadcasters in the field of those services is eliminated.

    Since that agreement might tend to restore the divisions between national markets, it is contrary to the EU’s objective of integrating markets through the establishment of a single market. Hence, it was concluded that these agreements are, in principle, agreements whose object is to restrict competition.

    As a result of this judgment, one might also expect an increase in the number of bars and restaurants around Malta broadcasting live Premier League matches, although these remain subject to certain provisions of copyright law.

    While competition over exclusive broadcasting rights for the live transmission of Premier League matches has always been fierce, this recent judgment has now opened the doors even wider for competition in this field and has created an exciting challenge for those wishing to retain exclusivity over broadcasting rights of Premier League matches.