Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Season 2 of football leaks: A review of the first episodes

Season 2 of #FootballLeaks is now underway since more than a week and already a significant number of episodes (all the articles published can be found on the European Investigative Collaborations’ website) covering various aspect of the (lack of) transnational regulation of football have been released (a short German documentary sums up pretty much the state of play). For me, as a legal scholar, this new series of revelations is an exciting opportunity to discuss in much more detail than usual various questions related to the operation of the transnational private regulations of football imposed by FIFA and UEFA (as we already did during the initial football leaks with our series of blogs on TPO in 2015/2016). Much of what has been unveiled was known or suspected by many, but the scope and precision of the documents published makes a difference. At last, the general public, as well as academics, can have certainty about the nature of various shady practices in the world of football. One key characteristic that explains the lack of information usually available is that football, like many international sports, is actually governed by private administrations (formally Swiss associations), which are not subject to the similar obligations in terms of transparency than public ones (e.g. access to document rules, systematic publication of decisions, etc.). In other words, it’s a total black box! The football leaks are offering a rare sneak peak into that box.

Based on what I have read so far (this blog was written on Friday 9 November), there are three main aspects I find worthy of discussion:

  • The (lack of) enforcement of UEFA’s Financial Fair Play (FFP) Regulations
  • The European Super League project and EU competition law
  • The (lack of) separation of powers inside FIFA and UEFA More...

Supporters of the ISLJ Annual International Sports Law Conference 2018: Altius

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to finish this series of interviews with Sven Demeulemeester from Altius, a Belgian law firm based in Brussels with a very fine (and academically-minded!) sports law team. 


1. Can you explain to our readers the work of Altius in international sports law? 

Across different sports’ sectors, Altius’ sports law practice advises and assists some of the world’s most high-profile sports governing bodies, clubs and athletes, at both the national and the international level. The team has 6 fully-dedicated sports lawyers and adopts a multi-disciplinary approach, which guarantees a broad range of legal expertise for handling specific cases or wider issues related to the sports industry. We are proud to be independent but, in cross-border matters, are able to tap into a worldwide network.

2. How is it to be an international sports lawyer? What are the advantages and challenges of the job? 

Sports law goes beyond one specific field of law. The multiplicity of legal angles keeps the work interesting, even after years of practising, and ensures that a sports lawyer rarely has a dull moment. The main downside is that the sports industry is fairly conservative and sometimes ‘political’. While the law is one thing, what happens in practice is often another. Bringing about change is not always easy. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference? 

 The much-anticipated overhaul of the football transfer system is eagerly anticipated and is worth a thorough debate, also in terms of possible, viable alternatives. The impact of EU law - both internal market rules, competition law and fundamental rights – can hardly be underestimated. Also, dispute resolution mechanisms within the realm of sports - and an accessible, transparent, independent and impartial sports arbitration in particular - will remain a ‘hot’ topic in the sector for years to come. Furthermore, ethics and integrity issues should remain top of the agenda, as is being demonstrated by the current money-laundering and match-fixing allegations in Belgium. Finally, in a sector in which the use of data is rife, the newly-adopted GDPR’s impact remains somewhat ‘under the radar’.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference? 

The ISLJ Annual International Sports Law Conference is refreshing, both in terms of its topics and participants. The academic and content-driven approach is a welcome addition to other sports law conferences in which the networking aspect often predominates.

Supporters of the ISLJ Annual International Sports Law Conference 2018: LawInSport

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to continue this series of interviews with LawInSport, a knowledge hub and educational platform for the community of people working in or with an interest in sport and the law  (many thanks to LawInSport's CEO Sean Cottrell for kindly responding to our questions).


1. Can you explain to our readers what LawInSport is about?

LawInSport is a knowledge hub, educational platform and global community of people working in or with an interest in sport and the law.

Our objective is to help people ‘understand the rules of the game™’. What does this mean? It means people in sport having access to information that enables them to have a better understanding the rules and regulations that govern the relationships, behaviours and processes within sports. This in turn creates a foundation based on the principles of the rule of law, protecting the rights of everyone working and participating in sport.  

2. What are the challenges and perks of being an international sports law 'reporter’ ?

I do not consider myself a reporter, but as the head of an organisation that has a responsibility to provide the highest quality information on legal issues in sport,  focusing on what is important and not just what is popular, whilst trying to stay free from conflicts of interests. These two issues, popularism and conflict of interest, are the two of the biggest challenges.

Popularism and the drive to win attention is, in my opinion, causing a lack of discipline when it comes to factual and legal accuracy in coverage of sports law issues, which on their own may seem harmless, but can cause harm to organisations and individuals (athletes, employees, etc).

Conflict of interest will obviously arise in such a small sector, however, there is not a commonly agreed standard in internationally, let alone in sports law. Therefore, one needs to be diligent when consuming information to understand why someone may or may not hold a point of view, if they have paid to get it published or has someone paid them to write it. For this reason it can be hard to get a full picture of what is happening in the sector.

In terms of perks, I get to do something that is both challenging and rewarding on a daily basis, and as  a business owner I have the additional benefit of work with colleagues I enjoy working with. I have the privilege of meeting world leaders in their respective fields (law, sport, business, science, education, etc) and gain insights from them about their work and life experiences which is incredibly enriching.  Getting access to speak to the people who are on the front line, either athletes, coaches, lawyers, scientists, rather than from a third party is great as it gives you an unfiltered insight into what is going on.

On the other side of things, we get the opportunity to help people through either having a better understand of the legal and regulatory issues in sports or to understand how to progress themselves towards their goals academically and professionally is probably the most rewarding part of my work. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference?

  • The long-term implications of human rights law in sport;
  • The importance of meaningful of stakeholder consultation in the creation and drafting of regulations in sport;
  • Effective international safeguarding in sport.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

We support ISLJ Annual International Sports Law Conference as it is a non-profit conference that’s purpose is to create a space to explore a wide range of legal issues in sport. The conference is an academic conference that does a great job in bringing a diverse range of speakers and delegates. The discussions and debates that take place will benefit the wider sports law community.  Therefore, as LawInSport’s objective is focused on education it was a straight forward decision to support the conferences as it is aligned with our objectives. 

Supporters of the ISLJ Annual International Sports Law Conference 2018: Women in Sports Law

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very proud to start this series of interviews with Women in Sports Law, an association launched in 2016 and which has already done so much to promote and advance the role of women in international sports law (many thanks to Despina Mavromati for kindly responding to our questions on behalf of WISLaw).


1. Can you explain to our readers what WISLaw is about?

Women In Sports Law (WISLaw, www.wislaw.co) is an international association based in Lausanne that unites more than 300 women from 50 countries specializing in sports law. It is a professional network that aims at increasing the visibility of women working in the sector, through a detailed members’ directory and various small-scale talks and events held in different countries around the world. These small-scale events give the opportunity to include everyone in the discussion and enhance the members’ network. Men from the sector and numerous arbitral institutions, conference organizers and universities have come to actively support our initiative.


2. What are the challenges and opportunities for women getting involved in international sports law?

Women used to be invisible in this sector. All-male panels were typical at conferences and nobody seemed to notice this flagrant lack of diversity. WISLaw created this much-needed platform to increase visibility through the members’ directory and through a series of small-scale events where all members, independent of their status or seniority, can attend and be speakers.

Another difficulty is that European football (soccer) is traditionally considered to be a “male-dominated” sport, despite the fact that there are so many great female football teams around the world. The same misperception applies to sports lawyers!

Last, there is a huge number of women lawyers working as in-house counsel and as sports administrators. There is a glass ceiling for many of those women, and the WISLaw annual evaluation of the participation of women in those positions attempts to target their issues and shed more light into this specific problem.


3. What are the burning issues in international sports law that you would like to see discussed at the conference?

The ISLJ Annual Conference has already set up a great lineup of topics combining academic and more practical discussions in the most recent issues in international sports law. 


4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

The Asser International Sports Law Centre has promoted and supported WISLaw since the very beginning. The ISLJ Annual International Sports Law Conference was the first big conference to officially include a WISLaw lunch talk in its program, allowing thus the conference attendees to be part of a wider informal discussion on a specific topical issue and raise their questions with respect to WISLaw. Another important reason why WISLaw supports this conference is because the conference organizers are making sincere efforts to have increased diversity in the panels : this year’s ISLJ Annual International Sports Law Conference is probably the first sports law conference to come close to a full gender balance in its panels, with 40% of the speakers being women !

The proportionality test under Art. 101 (1) TFEU and the legitimacy of UEFA Financial fair-play regulations: From the Meca Medina and Majcen ruling of the European Court of Justice to the Galatasaray and AC Milan awards of the Court of Arbitration for Sport – By Stefano Bastianon

Editor’s note: Stefano Bastianon is Associate Professor in EU Law and EU sports law at the University of Bergamo and lawyer admitted to the Busto Arsizio bar. He is also member of the IVth Division of the High Court of Sport Justice (Collegio di Garanzia dello sport) at the National Olympic Committee.

 

1. On the 20th July 2018, the Court of Arbitration for Sport (hereinafter referred to as “CAS”) issued its decision in the arbitration procedure between AC Milan and UEFA. The subject matter of this arbitration procedure was the appeal filed by AC Milan against the decision of the Adjudicatory Chamber of the UEFA Financial Control Body dated 19th June 2018 (hereinafter referred to as “the contested decision”). As many likely know, the CAS has acknowledged that, although AC Milan was in breach of the break-even requirement, the related exclusion of the club from the UEFA Europe League was not proportionate. To date, it is the first time the CAS clearly ruled that the sanction of exclusion from UEFA club competitions for a breach of the break-even requirement was not proportionate. For this reason the CAS award represents a good opportunity to reflect on the proportionality test under Art. 101 TFEU and the relationship between the landmark ruling of the European Court of Justice (hereinafter referred to as “ECJ”) in the Meca Medina and Majcen affair and the very recent case-law of the CAS. More...

The “Victory” of the Court of Arbitration for Sport at the European Court of Human Rights: The End of the Beginning for the CAS

My favourite speed skater (Full disclosure: I have a thing for speed skaters bothering the ISU), Claudia Pechstein, is back in the news! And not from the place I expected. While all my attention was absorbed by the Bundesverfassungsgericht in Karlsruhe (BVerfG or German Constitutional Court), I should have looked to the European Court of Human Rights in Strasbourg (ECtHR). The Pechstein and Mutu joint cases were pending for a long time (since 2010) and I did not anticipate that the ECtHR would render its decision before the BVerfG. The decision released last week (only available in French at this stage) looked at first like a renewed vindication of the CAS (similar to the Bundesgerichtshof (BGH) ruling in the Pechstein case), and is being presented like that by the CAS, but after careful reading of the judgment I believe this is rather a pyrrhic victory for the status quo at the CAS. As I will show, this ruling puts to rest an important debate surrounding CAS arbitration since 20 years: CAS arbitration is (at least in its much-used appeal format in disciplinary cases) forced arbitration. Furthermore, stemming from this important acknowledgment is the recognition that CAS proceedings must comply with Article 6 § 1 of the European Convention of Human Rights (ECHR), in particular hearings must in principle be held in public and decisions freely available to all. Finally, I will criticise the Court’s finding that CAS complies with the requirements of independence and impartiality imposed by Article 6 § 1 ECHR. I will not rehash the  well-known facts of both cases, in order to focus on the core findings of the decision. More...

ISLJ International Sports Law Conference 2018 - Asser Institute - 25-26 October - Register Now!

Dear all,

Last year we decided to launch the 'ISLJ Annual International Sports Law Conference' in order to give a public platform to the academic discussions on international sports law featured in the ISLJ. The first edition of the conference was a great success (don't take my word for it, just check out #ISLJConf17 on twitter), featuring outstanding speakers and lively discussions with the room. We were very happy to see people from some many different parts of the world congregating at the Institute to discuss the burning issues of their field of practice and research.

This year, on 25 and 26 October, we are hosting the second edition and we are again welcoming well-known academics and practitioners in the field. The discussions will turn around the notion of lex sportiva, the role of Swiss law in international sports law, the latest ISU decision of the European Commission, the Mutu/Pechstein ruling of the European Court of Human Rights, or the reform proposal of the FIFA Regulations on the Transfer and Status of Players. It should be, it will be, an exciting two days!

You will find below the final programme of the conference, please feel free to circulate it within your networks. We have still some seats left, so don't hesitate to register (here) and to join us.

Looking forward to seeing you and meeting you there!

Antoine

Football Intermediaries: Would a European centralized licensing system be a sustainable solution? - By Panagiotis Roumeliotis

Editor's note: Panagiotis Roumeliotis holds an LL.B. degree from National and Kapodistrian University of Athens, Greece and an LL.M. degree in European and International Tax Law from University of Luxembourg. He is qualified lawyer in Greece and is presently working as tax advisor with KPMG Luxembourg while pursuing, concomitantly, an LL.M. in International Sports Law at Sheffield Hallam University, England. His interest lies in the realm of tax and sports law. He may be contacted by e-mail at ‘p.roumeliotis@hotmail.com’.


Introduction

The landmark Bosman Ruling triggered the Europeanization of the labour market for football players by banning nationality quotas. In turn, in conjunction with the boom in TV revenues, this led to a flourishing transfer market in which players’ agents or intermediaries play a pivotal role, despite having a controversial reputation.

As a preliminary remark, it is important to touch upon the fiduciary duty of sports agents towards their clients. The principal-agent relationship implies that the former employs the agent so as to secure the best employment and/or commercial opportunities. Conversely, the latter is expected to act in the interest of the player as their relationship should be predicated on trust and confidence, as much was made clear in the English Court of Appeal case of Imageview Management Ltd v. Kelvin Jack. Notably, agents are bound to exercise the utmost degree of good faith, honesty and loyalty towards the players.[1]

At the core of this blog lies a comparative case study of the implementation of the FIFA Regulations on working with intermediaries (hereinafter “FIFA RWI”) in eight European FAs covering most of the transfers during the mercato. I will then critically analyze the issues raised by the implementation of the RWI and, as a conclusion, offer some recommendations. More...



Seraing vs. FIFA: Why the rumours of CAS’s death have been greatly exaggerated

Rumours are swirling around the decision (available in French here) of the Court of Appeal of Brussels in the case opposing RFC Seraing United to FIFA (as well as UEFA and the Belgian Football Federation, URSBFA) over the latter’s ban on third-party ownership. The headlines in various media are quite dramatic (see here and here), references are made to a new Bosman, or to a shaken sport’s legal system. Yet, after swiftly reading the decision for the first time on 29th August, I did not have, unlike with the Pechstein ruling of the Oberlandesgericht München, the immediate impression that this would be a major game-changer for the Court of Arbitration for Sport (CAS) and the role of arbitration in sports in general. After careful re-reading, I understand how certain parts of the ruling can be misunderstood or over-interpreted. I believe that much of the press coverage failed to accurately reflect the reasoning of the court and to capture the real impact of the decision. In order to explain why, I decided to write a short Q&A (including the (not water-proof) English translations of some of the key paragraphs of the decision).

 More...

New Article Published! The Olympic Charter: A Transnational Constitution Without a State?

My latest article has just been published online by the Journal of Law and Society. It is available open access here.

The article stems from a conference organised by Jiri Priban from Cardiff University on Gunther Teubner's idea of societal constitutionalism applied to transnational regimes. My role was to test whether his descriptive and normative framework was readily applicable to the lex sportiva, and in particular its overarching "constitutional" text: the Olympic Charter.

As you will see my conclusion is mixed. I find that the Olympic Charter (OC) displays many constitutional features and is even able to regularly defend successfully its autonomy vis-à-vis national states and their laws. However, while I document some inception of limitative constitutional rules, such as the ban on discrimination or the principle of fair play, I also conclude that those have limited impact in practice. While constitutional changes to the OC can be triggered by scandal, resistance and contestation, as illustrated by the emergence of environmental concerns after the Albertville Games and the governance reshuffle of the IOC after the Salt Lake City scandal, I am also sceptical that these were sufficient to tackle the underlying problems, as became obvious with the unmatched environmental damage caused by the Sotchi Games in 2014.

In conclusion, more than sporadic public outrage, I believe that the intervention of national law and, even more, European Union law will be capable and needed to rein the Olympic regime and impose external constitutional constraints on its (at least sometimes) destructive operations.

Here is the abstract of the article: This article examines various aspects of Teubner's theory of societal constitutionalism using the lex sportiva as an empirical terrain. The case study focuses on the operation of the Olympic Charter as a transnational constitution of the Olympic movement. It shows that recourse to a constitutional vocabulary is not out of place in qualifying the function and authority of the Charter inside and outside the Olympic movement. Yet, the findings of the case study also nuance some of Teubner's descriptive claims and question his normative strategy.

Good read! (And do not hesitate to share your feedback)


Asser International Sports Law Blog | The boundaries of the “premium sports rights” category and its competition law implications. By Marine Montejo

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

The boundaries of the “premium sports rights” category and its competition law implications. By Marine Montejo

Editor’s note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an Intern at the ASSER International Sports Law Centre.

In its decisions regarding the joint selling of football media rights (UEFA, Bundesliga, FA Premier league), the European Commission insisted that premium media rights must be sold through a non-discriminatory and transparent tender procedure, in several packages and for a limited period of time in order to reduce foreclosure effects in the downstream market. These remedies ensure that broadcasters are able to compete for rights that carry high audiences and, for pay TV, a stable number of subscriptions. In line with these precedents, national competition authorities have tried to ensure compliance with remedy packages. The tipping point here appears to be the premium qualification of sport rights on the upstream market of commercialization of sport TV rights.

This begs the question: which sport TV rights must be considered premium? The European Commission already held that European football championships, the Olympics and Formula 1 are premium rights but the question remains open for various other sports because they have not been the subject of competition proceedings yet. Two recent cases (the decisions are accessible here and here) brought before the French competition authority concerning rugby TV rights highlighted the need to bring out objective criteria to determine what are premium sport rights, bearing in mind that something premium in France may be qualified as non-premium in another market depending on its characteristics. Before discussing the need for legal certainty for sport rights holders, we will appraise the two French decisions on rugby and how premium sports are qualified.  


From non-premium to premium 

Canal Plus, the current holder of the rights, and the Ligue Nationale de Rugby (national rugby league, “LNR”) entered into a negotiated procedure regarding the renewal of their Top 14 TV rights. However, in December 2013, the procedure was unsuccessful and the LNR decided to terminate the contract it had with Canal Plus. In so doing, the LNR started a legal war with its former broadcaster. As one of the conditions for the approval of the TPS/Canal Sat merger, Canal Plus was required to give the LNR the option to terminate their contract at the end of the 2013/2014 season.[1] The LNR, deciding that the price Canal Plus was paying did not correspond to the reality of the market anymore, started an open call for tenders for the next four seasons which led Canal Plus to file several legal actions to challenge the interruption of the negotiations, the termination of the contract and the call for tenders. Almost immediately the LNR suspended the call for tenders and resumed its negotiations with Canal Plus. In January 2014, the exclusive TV rights for all the Top 14 matches were awarded to Canal Plus - not only for the subsequent four but ultimately the following five seasons (2014/2015 to 2018/2019). Canal Plus had to put 355 million euros on the table to acquire the exclusive rights, amounting to twice the amount it paid for the previous broadcasting contract. BeIN Sports, a newcomer on the French sport TV rights market,[2] filed a complaint and asked for interim measures with the Autorité de la concurrence.[3]

The French competition authority, in its decisional practice,[4] distinguishes six different markets for sport TV rights acquisitions: (i) the national football first division market (Ligue 1); (ii) the market for annual football championships involving French teams (Ligue, UEFA Champions League and UEFA Europa League); (iii) the market for the most attractive foreign football championships; (iv) the market for other football competitions; (v) the market for events of major importance other than football; and (vi) the market for sport competitions other than football and events of major importance (or “other rights”). The first five markets are better known as premium rights while the last one consists of all other non-premium rights. Rugby media rights were considered as non-premium before that decision.

The Autorité recognized that rugby and more importantly, the Top 14 championship, were facing an important growth in popularity as reflected by the high value of its broadcastings rights and the high audiences it attracts. At the time of the decision, rugby was the third sport, after football and tennis, in terms of viewers and Canal Plus accepted to pay an average of 71 million euros per season for the rights.

 

Top 14 average rights price per season (1998-2014) 


Canal Plus Top 14 audiences and best audiences per season (2008-2014)

 

The Top 14 appears to be an important source of subscriptions (pt. 100) which makes it particularly attractive for pay TV channels. This competition was the second driver of subscriptions (32%) for Canal Plus just after the Ligue 1 (51%) but before the UEFA Champions League (31%). In light of these circumstances, the Top 14 rights should be considered as premium TV rights.

Next, in considering which market these rights should belong to, the Autorité set four criteria to be met to decide on the relevant premium market: (i) key sales driver for TV subscription; (ii) high audiences; (iii) value over 10 million euros per season; and (iv) competition characteristics (level and regularity). Without being particularly clear, the Autorité seems to consider that the Top 14 rights belong to a separate premium market (pt. 138). As a consequence, given the particularities of the French market, the Top 14 rights shifted from the non-premium market to the premium market which means that their commercialisation should have been awarded through a transparent and non-discriminatory tender procedure, for a limited period of time and divided into several packages consistent with the national and European practices.[5] 


From non-premium to semi-premium? 

The question concerning the premium qualification of sport TV rights arose again in a more recent case[6] before the French competition authority, this time concerning the live broadcasting rights for rugby’s second tier (“Pro D2”). The LNR carried out a public consultation for the marketing of commercial rights for the Pro D2 championships for the 2015/2016 to 2019/2020 seasons. Following three rounds of negotiation, Canal Plus and Eurosport were awarded the rights for a total of 31 million euros. The third and rejected applicant, Ma Chaîne Sport (“MCS”), a fairly new but growing sports channel[7] and more importantly part of the Altice group (a multinational cable, fiber, telecommunications, contents and media company), filed a complaint before the French Autorité de la Concurrence. In this complaint, it claimed it was excluded from the selling process as a result of both a cartel between Eurosport, Canal Plus and the LNR, and an abuse of dominant position from the LNR on “the market for the acquisition of semi-premium sport TV rights” (pt.47).

The TV rights for the Pro D2 championship are part of the sport “other rights” market as the competition authority never had to decide on that particular case before. However, MCS is claiming that these rights should belong to a new and different market of semi-premium sport rights that, without combining together the usual criteria found in the jurisprudence to identify premium rights, are still able to attract significant audiences, making them sufficiently attractive to be of interest to premium channels.[8] MCS further argues that the Pro D2, the football Ligue 2 (second division), the basketball Pro A and the handball D1 (all first division) belong on that market. All those rights, with the exception of the Ligue 2 rights which are considered as premium, are valuable in terms of killer content for pay TV but currently belong to the non-premium rights market. The Autorité acknowledges that the non-premium rights market is set as default and brings together a heterogeneous set of rights in attractiveness and value (pt.55). It also acknowledges that some of these rights attract higher prices but not quite enough to meet the threshold of 10 million euros per season to be considered as premium. Referring to its consistent decision making, the Autorité considers that relying on a sole criterion, namely a higher selling price than the average prices in the non-premium market, is not sufficient to change the relevant market to a premium market, without a substitutability analysis (pt.58). As a consequence, those rights are still deemed to belong to the non-premium rights market.

The recognition of a semi-premium market would have led to a division in the non-premium rights market (i.e. semi-premium rights on the one hand and the remaining rights that are less valuable on the other hand). Once again, the Autorité points out that such a categorization within the non-premium category is irrelevant from a competition law point of view (pt.59). Establishing a specific premium TV rights market should involve legal consequences as usually occurs when TV rights shift from the non-premium market to a specific premium market. Within the same market, it is difficult to see what those legal consequences should be. The non-premium TV market is ruled by common contract law in contrast to premium rights that have to comply with a number of obligations to ensure compliance with EU competition law (open and transparent tendering process, packages, and limits in duration). Imposing those remedies on the semi-premium market would lead to the absorption of the market by the premium TV rights markets (pt.63). As a consequence, the Autorité finds that there is no legal need to define a semi-premium sport TV rights market.  


Towards legal certainty for sport rights holders

We have seen that the shift between non-premium and premium sport rights is the tipping point that leads rights holders to start open tendering processes for the selling of their rights. However, in France, the Code du Sport provides that sport federations are the owners[9] of the media rights for their sport. These federations can decide to transfer this ownership to clubs.[10] In this case, joint selling by the league is compulsory[11] and it has to be done through an open and transparent tender process, the rights must be packaged and they must be sold for a maximum period of four years.[12] The Code du Sport codifies the remedies imposed by the European Commission in the joint selling of football media rights cases, but it does not mention premium rights. These obligations are applicable in the case of transfer of ownership and where a professional league exists. Thus, in France it only applies in relation to football, rugby, basketball, volleyball and handball, five sport for which a professional league has been set up. In practice, the French football federation is the only federation that transferred the ownership of rights to its clubs for the first and second divisions[13] and, as a consequence, the football national league, responsible for the joint selling on behalf of the clubs, has to respect the obligations laid down in the Code. It is possible that, in hoping to circumvent those obligations, the other four federations decided to keep the ownership of the media rights. This is, in particular, the case of the rugby federation where the league is selling the media rights for the Top 14 and Pro D2 on behalf of the federation.[14]

Both decisions on the Top 14 and Pro D2 reintegrate the notion of premium and non-premium rights into the legal analysis. In the case of rugby, where the national provisions for the selling of sport rights did not apply because the federation was the owner of these rights and not the clubs, the shift from non-premium to premium rights leads to the application of competition remedies. Moreover, the Top 14 decision opens the way to tendering processes, packaging and the limiting of contract durations in cases of sports where national provisions do not apply because there is no professional league. Indeed, in this scenario, the media rights will be considered as premium because they fulfil all criteria. Hence, two scenarios can be envisaged: where a professional league exists, the federation has to decide whether it transfers the rights ownership to clubs and respects the obligations laid down in the law; and where it decides to retain ownership, or if there is no league, the federation or league has to make sure its rights are not premium in accordance with the Top 14 decision before deciding on the marketing procedure it has to follow.

The criteria developed by the French competition authority appear to be quite objective and effective as these criteria were also used by the Belgian competition authority in a dispute between Proximus and Telenet concerning the rights of the 2015-2016 cycle-cross Superprestige competition that were awarded to Telenet.[15] Telenet used the cumulative criteria from the Top 14 decision to show that cycle-cross does not constitute a separate market from the other cycling rights that are not premium. The national competition authority however, also referring to the French decision, considers that these rights should be on a separate premium market because of their popularity throughout Flanders and that they are subscriptions driver. The question remaining here is whether it would be useful to codify these criteria. First, it has to be stated that these criteria were only used in the case of live TV and that it is difficult to assess if they are objective enough to be used for all media transmissions (which are mostly Internet-based). On the other hand, media is a fast moving market and it is absolutely not certain that engaging in a legislative process to codify those criteria will give the margin of appreciation necessary to correctly assess premium sport media rights markets and prevent any distortion of competition. A full codification does not appear essential in that case and, as shown in the Belgian cycle-cross situation, these criteria can be used in other sports and markets to determine the premium qualification of media rights which gives a modicum of legal certainty to sport rights holders.

However, a question remains surrounding sport rights that almost fall within the premium market. For non-premium rights, rights holders have the freedom to decide how they want to organise the selling of their TV rights. As Telenet in the Belgian decision on cycle-cross rightly pointed out, the imposition of a transparent tender procedure for rights holders that belong to the non-premium market creates an imbalance as they do not have the same resources as the premium rights holders to organise such a costly tender procedure. Yet, in practice, and in the Pro D2 case, rights holders tend to organise tender procedures and unbundle their rights even though they are not legally obliged to do so. In the case of the Top 14, the LNR carried out a market assessment before even starting its negotiations with Canal Plus and should have known its rights fell into the premium category. The problem here for rights holders is to prevent any dispute arising after the selling process concerning the non-premium/premium qualification of the TV rights in question. Identifying a semi-premium category may be useful for rights holders in better managing the shift from non-premium to premium rights holders. Right holders that are close to seeing their non-premium rights become premium should carefully assess the commercial attractiveness of their rights and probably decide on a formal selling procedure in order not to risk their selling process being annulled by competition authorities.

As seen with these two French cases, the value of sport TV rights may change over time, depending on factors such as the improvement in the level of competition and the public interest, which creates the possibility for these rights to change categories. Moreover, this appreciation may change from one national market to another. Moving from the non-premium to premium market implies some important changes in the selling process and rights holders should carefully appraise the value and popularity of their sport beforehand. The criteria laid down in the Top 14 decision may be considered as guiding principles in this process and, accordingly, it may be used by other competition authorities faced with similar circumstances.



[1] Autorité de la concurrence, 12-DCC-100, 23/07/2012

[2] BeIN Sport is a French sport premium channel in direct competition with Canal Plus and Eurosport and owns an important portfolio of sport rights for football (Ligue 1, Ligue 2, UEFA Champions League and Europa League), rugby, tennis and handball in particular. In February 2016 Canal Plus announced it had reached an agreement to exclusively distribute beIN Sports. The French competition authority is expected to decide very soon on that issue.

[3] Autorité de la concurrence, 14-MC-01, 30/07/2014 and Cour d’Appel de Paris, arrêt du 09 octobre 2014.

[4] Autorité de la concurrence, 12-DCC-100, 23/07/2012.

[5] Commission Decision, UEFA Champions League (Case COMP/C.2-37.398), 23/07/2003

[6] Autorité de la concurrence, 16-D-04, 23/03/2016.

[7] MCS (from July 2016, SFR Sport channels) sport rights portfolio mainly consists of the competition rights overlooked by the biggest actors on the market. However, it owns some valuable rights such as the basketball Pro A (French first division basketball championship), the CEV DenizBank Volleyball Champions League, the WTA tour in tennis and more importantly, from 2016, the FA Premier League.

[8] « qui, sans réunir l’ensemble des critères habituellement retenus par la jurisprudence pour identifier un caractère premium, sont des moteurs d’audience significatifs pour les chaînes thématiques sportives et des contenus suffisamment attractifs pour également intéresser les chaînes premium », pt.49

[9] Code du Sport, articles L.331-1 and R.333-1

[10] Ibid, L.331-1

[11] Ibid, article R.333-2

[12] Ibid, article R.333-3

[13] See article 25 of the FFF/LFP convention

[14] See article 28 of the FFR/LNR convention

[15] Belgische Mededingingsautoriteit, 15-VM-65, 05/11/2015

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