The European Court of Justice has rejected an appeal by Fifa and Uefa that would have overturned the UK’s decision that World Cup and European Championship finals matches cannot be shown exclusively on pay-TV.
The EU’s TV Broadcasting Directive, as amended by Directive 97/36 (which added the relevant Article 3a), allows Member States to select particular events “of major importance for society” that must be available on free-to-air TV. This prevents the granting of exclusive rights to pay-per-view or subscription broadcasters such as Sky.
In the UK, the designated events (the so-called “crown jewels”) are set out in Ofcom’s pithily titled Code on Sports and Other Listed and Designated Events.
They are: the Olympics; the Grand National and Derby; Wimbledon; the Rugby World Cup; Rugby League Challenge Cup; FA Cup; and Scottish Cup Finals; and – the subject of this case – the finals of the World Cup and Euros (that is, the four-six weeks of football bliss/torment that takes place every second summer).
There is also a B-list of events for which free-to-air highlights must be made available. Fifa and Uefa challenged the UK’s listing of the entirety of each tournament as excessive, arguing that not all matches could reasonably be considered of major importance to UK society. They didn’t provide specific examples, but perhaps had in mind clashes such as Algeria v Slovenia and Slovakia v Paraguay, games that didn’t exactly set the last World Cup afire.
They did concede that “gala” matches such as the semis and the final are sufficiently important, as are matches involving the home nations (implying a touching, some may even say naive belief that Scotland could at some point qualify for another tournament).
The court decided that member states have a wide discretion in selecting events for listing, and that the World Cup and Euros could each be regarded, from the perspective of the British public, as single events of major importance. The downside of this judgment for Fifa and Uefa is obvious, as the listing of the tournaments in their entirety prevents pay-TV broadcasters from competing for the exclusive right to screen games, and so substantially reduces the price those rights are able to attract.
Losing The Ashes would be a blow to Sky
For the same reason, it will also be highly significant for rights-holders in both the other listed events and those events that were recommended for inclusion on the list back in 2009. These include home nation qualifiers for the World Cup and Euros and, in a convenient quirk of timing, both the Open and the Ashes. The latter is currently exclusive to Sky, and so adding it to the list would cause a serious shake-up in cricket coverage.
The Open was screened on BBC recently, and the fact that Sky and others are currently able to compete for the rights helps the R&A command a higher sale price.
They are therefore likely to take a close interest in the court’s judgment, despite the competing demands on their time (including all the talk of windmills and clown faces). A decision on listing more events was shelved until this year, to allow for completion of the digital TV roll-out, but with last week’s court decision going its way the UK government may feel emboldened about adding to the list.
• Charles Livingstone is an associate in the public law & regulatory team at Brodies LLP