Asser International Sports Law Blog

Editor’s note: Thomas Terraz is a fourth year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

1. Introduction

The UCI may soon have to navigate treacherous legal waters after being the subject of two competition law based complaints (see here and here) to the European Commission in less than a month over rule changes and decisions made over the past year. One of these complaints stems from Velon, a private limited company owned by 11 out of the 18 World Tour Teams,[1] and the other comes from the Lega del Ciclismo Professionistico, an entity based in Italy representing an amalgamation of stakeholders in Italian professional cycling. While each of the complaints differ on the actual substance, the essence is the same: both are challenging the way the UCI exercises its regulatory power over cycling because of a growing sense that the UCI is impeding the development of cycling as a sport. Albeit in different ways: Velon sees the UCI infringing on its ability to introduce new race structures and technologies; the Lega del Ciclismo Professionistico believes the UCI is cutting opportunities for semi-professional cycling teams, the middle ground between the World Tour Teams and the amateur teams.

While some of the details remain vague, this blog will aim to unpack part of the claims made by Velon in light of previous case law from both the European Commission and the Court of Justice of the European Union (CJEU) to give a preliminary overview of the main legal issues at stake and some of the potential outcomes of the complaint. First, it will be crucial to understand just who/what Velon is before analyzing the substance of Velon’s complaint.

2. Who / What is Velon?

From an outsider’s point of view, the answer to this question is not so obvious as it may seem. Velon itself is owned by 11 World Tour Teams, which is the pinnacle of the UCI’s men’s team classification. In other words, Velon represents more than half of the largest team stakeholders in road cycling.[2] However, Velon does not just simply advocate for these teams’ interests, but it engages in its own economic activities, which can be categorized into two types. First, it has been the organizer of a new series of races called the Hammer Series (or as the UCI would prefer, simply Hammer) where instead of having individual cyclists (competing on behalf of a team) placing individually in a stage of a race, the entire team is classified through a points-based system. The point of this format is ‘crowning the best team in professional cycling’.

Velon also created a ‘digital content and live data platform’ through VelonLive via a partnership with EY, which was first made public in May of this year. VelonLive essentially collects data from road cycling races in order to give spectators more insight into the race. For example, it collects ‘real-time biometric rider data’, including heart rate, power and cadence data from specific riders in a race to on bike cameras and cameras in team cars. The aim is to try to bring the race closer to the spectator by offering more data and new ways to see and understand the race. Major race organizers, like the Giro D’Italia and the Tour of Flanders have jumped on these new race visualization technologies and used VelonLive this year in their respective races.

So not only does Velon act as a representative of a large group of first-rate road cycling teams, but it also organizes races and is working to develop innovative ways for cycling fans to experience road cycling races.

3. The Complaint

Velon, through a press release on their website, announced that it had launched a formal complaint against the UCI to the European Commission on 20 September, 2019 to which it added an ‘Addendum to the Complaint’ on 8 November, 2019. While these press releases and accompanied ‘context notes’ are rather bare in explaining the factual background to the complaint, it is still enough to extract the essence of what is being alleged. At its core, Velon is making a three-pronged complaint against the UCI: first, that the UCI acted in a way that has ‘hampered the development of the Series’ (Hammer Series); secondly, that the UCI is discriminating against women’s cycling by denying the approval of a women’s race that would accompany the already existing men’s race in Hammer Stavanger; lastly, that the amendments to the UCI’s Technical Regulations effectively take away Velon and other race organizers’ control over live race data technologies and were adopted without sufficiently consulting stakeholders. Concerning the last complaint, Velon seems to be referring to certain amendments from 15 February, 2019 made to the equipment regulations Article 1.3.024ter. The changes essentially introduced a pre-authorization scheme for ‘onboard technology equipment’ in which the UCI or an event organizer with the UCI’s consent must give prior authorization for ‘any intended use by a team or rider’ of such equipment. However, given both the scarce details and length restraints, this blog concentrates on the on the first two elements of the complaint, which are further dissected here.

Velon alleges that the UCI acted to prevent the organization of Hammer races into a series and threatened to not register the men’s Hammer races in the 2020 calendar if Velon proceeded to do so. As of 11 November, 2019, the three men’s Hammer races are still listed in the 2020 calendar, while the women’s Hammer Stavanger race is not listed, since it was rejected by the UCI. Velon also claims that the UCI did not give any reasons for its opposition to the series and that it ‘hampered’ the overall development of the series. Further details are rather murky; however, it is essential to point out that the UCI, like many other SGBs, employs a pre-authorization scheme[3] for cycling events, and it prohibits both teams and individual cyclists (of all levels) in participating in non-authorized third-party events under the threat of sanctions. Individuals may face a one-month suspension and a fine of 50 to 100 CHF.[4] Such an event pre-authorization scheme has been the focal point of two major EU sports competition law cases: the CJEU’s decision in MOTOE and the Commission’s decision concerning the ISU’s eligibility rules. It is likely that if the Commission takes on this case, it will closely scrutinize the UCI’s pre-authorization scheme and its actual application, including the accompanied sanctions. From the outset, it is critical to bear in mind that the CJEU has held that rules of sport governing bodies may escape the prohibitions under Article 101 TFEU if ‘the consequential effects restrictive of competition are inherent in the pursuit of those objectives (Wouters and Others, paragraph 97) and are proportionate to them’.[5] On the other hand, a dominant undertaking may justify its actions under Article 102 TFEU if it can demonstrate ‘that its conduct is objectively necessary or by demonstrating that its conduct produces substantial efficiencies which outweigh any anti-competitive effects on consumers’.[6]

As a preliminary note, it should be stated that if the Commission decides to pursue the case under Article 102 TFEU, it will not be hard pressed to find the UCI and its respective national federations collectively dominant[7] in the relevant market.^{^[8]} The relevant market regarding the Hammer races will most likely be confined to the organization and commercial exploitation of international road cycling races on the worldwide market.^{^[9]} Even though the Professional Cycling Council (PCC) adopts the UCI WorldTour calendar, Velon could still contend that the UCI exerts control over its adoption given the composition of the PCC.^{^[10]}

4. Analysis of the ‘hampered’ Series and alleged discrimination against women’s cycling

4.1.MOTOE

In MOTOE, ELPA, a Greek motorsport organization, was given the regulatory power through a national law to approve or deny motorsport events in Greece, while also organizing and commercially exploiting such events itself.[11] MOTOE challenged the national law giving ELPA this power after one of its events was not approved. The CJEU ruled that the dual role of ELPA as both a regulator and commercial exploiter was contrary to competition law because it had not given an ‘equality of opportunity’ ‘between the various economic operators’.[12] AG Kokott’s Opinion goes further and describes a ‘conflict of interest’ in which sport governing bodies are placed if they are both the gatekeeper and promoter of sport events.[13] A similar situation in the Commission’s FIA case even resulted in the complete separation of FIA’s ‘commercial and regulatory functions’ in order to cease its breach of EU competition law.[14]

Unlike ELPA, the UCI is not given the power to regulate the events included in its calendar by an act of a state or public body. Nonetheless, it still wields an immense power over the regulation and approval of events in road cycling deriving from its position as the world’s cycling governing body. The UCI also benefits considerably from the registration of events in its calendar, a fact that is quickly verified by having a glance at its yearly financial report,[15] which demonstrates the extent to which it is dependent on revenues connected to its sanctioned events. The UCI can only justify charging fees for events if there is the existence of an official closed calendar of events. Additionally, the UCI itself is an event organizer since it arranges the annual UCI Road World Championships. Therefore, it is very likely that the UCI may be faced with a ‘conflict of interest’ because it holds the keys to its events calendar while having an apparent financial stake in the approval of events.

At this point, it is also helpful to examine the Commission’s decision in the ISU case which delves in depth on the compatibility of event pre-authorization schemes with EU law.

4.2.The Commission’s ISU Decision

The ISU case concerned two Dutch speed skaters who challenged the ISU eligibility rules precluding them from participating in non-ISU authorized events, subject to a potential lifetime ban (the ban was amended during the proceedings to allow greater flexibility on the sanction but was still found to be contrary to EU law). The concerned skaters wished to participate in IceDerby’s events. IceDerby is an ice-skating events organizer who aimed to create a new race format that would introduce ‘a new type of skating events on a different size track than the ISU recognized track’.[16] This very much echoes some of the fact pattern of the present case in which Hammer seeks to introduce a new road cycling race format. The Commission found that the severity of the sanctions in case of a breach of the ISU’s eligibility rules inherently aimed ‘at preventing athletes from participating in events not authorised by the ISU, resulting in the foreclosure of competing event organizers’.[17] In the end, the case largely turned on whether the ISU’s eligibility rules pursued legitimate objectives and whether they were inherent and proportionate to its aims. The Commission identified that ‘the integrity of the sport, the protection of the athletes’ health and safety and the organisation and proper conduct of sport’ could be considered legitimate objectives but that the ISU’s eligibility rules did not actually pursue any of these objectives.[18] Moreover, the Commission found that the financial and economic interests of the ISU could not be considered legitimate objectives.[19]

In Velon’s complaint, as in the ISU case, there are two connected, yet separate elements that the Commission will most likely have to analyze: (a) the prohibition of participating in non-approved events and the relevant sanctioning framework and (b) the UCI’s events approval process (the pre-authorization scheme). Concerning the former, Pat McQuaid, the former UCI president explained the aim of the rules banning participation in non-approved events in a letter to USA Cycling back in 2013. He explained that it ‘allows for a federative structure’, ‘which is inherent in organised sport and which is essential to being a part of the Olympic movement’. The Commission dismissed this notion in the ISU case when it pointed out that there are several sport federations that do not have an ‘ex-ante control system’ that effectively precludes athletes from participating in third party events.[20] Nevertheless, this stated objective may still fall under the organization and proper function of sport, which was deemed a legitimate objective by the Commission.

However, the issue remains as to whether the UCI’s pre-authorization scheme, the latter element identified above, pursues legitimate objectives while meeting the proportionality requirements. In other words, why does the UCI oppose the organization of Hammer races in a series and approving a corresponding women’s event? From Velon’s claims, it is questionable whether the UCI has a ‘pre-established objective, nondiscriminatory and proportionate criteria’ in approving events since it claims that it never received an explanation as to why its series was rejected.[21] In addition, the UCI must elaborate its reasoning in denying a women’s Hammer Stavanger event beyond that it ‘was not in the best interest of women’s cycling’. The UCI will have to explain why it not only allegedly threatened to remove Hammer races from the calendar and denied the inclusion of a women’s race but also why it did not provide Velon a full response that gave objective justifications, not tied to any economic or financial interests, as to why it is opposed the organization of a Hammer Series and a women’s Hammer Stavanger race.

In the end, in order for the ISU to keep its event pre-authorization scheme it was required to: (a) ‘provide for sanctions and authorization criteria that are inherent in the pursuit of legitimate objectives’, (b) ‘provide for objective, transparent and non-discriminatory sanctions and authorization criteria’ that are proportionate to its objectives, and (c) ‘provide for an objective, transparent and non-discriminatory procedure for the adoption and effective review of decisions’ concerning the ‘authorisation of speed skating events’.[22] The Commission will likely evaluate the UCI’s pre-authorization scheme in light of these criteria.

4.2.1. The UCI’s pre-authorisation scheme in light of the ISU criteria

This examination will begin by investigating the second and third criteria before returning to the first criteria. On the second criteria, the UCI lays out the sanctions for participating in ‘forbidden races’ in Part 1 of its Regulations under Article 1.2.021 that plainly states that breaches ‘shall render the licence holder liable to one month’s suspension and a fine of CHF 50 to 100’. Since the sanction is not nearly as draconian as the ISU’s sanctions, the UCI may have a greater chance of arguing that it is proportionate to its objective, although it could still be argued that the sanction does not give much flexibility depending on the circumstances of the case.[23] Concerning the event authorization criteria, the UCI explains the requirements to register a race in the international calendar in the ‘Registration Procedure for UCI Calendars 2020/2020-2021’, which sets out the financial obligations of event organizers, the relevant deadlines, and the documentation[24] that event organizers will have to provide. In addition, the UCI does not have the same intrusive financial disclosure requirements, which was strongly rebuked by the Commission.[25] However, nowhere does it explicitly mention ‘an interest of cycling’ criteria, which makes it a real wonder as to why this was the reason given, according to Velon, concerning the rejection of the women’s Hammer Stavanger race. Consequently, the Commission will have to examine whether the criteria are in practice applied in a uniform and non-discriminatory manner and whether the UCI uses other criteria to assess the inclusion of an event on the international calendar. The Commission did not condone the ISU’s non-exhaustive list of criteria and the broad margin of discretion it had in approving or rejecting event applications.[26]

On the third criteria, the UCI does have a rather transparent process (see flow chart below[27]) concerning the adoption of its calendar, and it also has a process for the review of a rejection of an event application.[28] If the UCI management committee rejects an application, the event organizers may have the opportunity to defend the application. If it does not have this opportunity, the organizer may appeal to the UCI’s arbitral board, however, the decision is final and cannot be appealed further. It is at this point that the UCI’s event pre-authorization scheme may run into further difficulties meeting the ISU criteria because it does not even allow the possibility for the organizer to appeal to the CAS. Even the ISU in its Communication No. 1974 allowed for an appeal to the CAS, which still did not preclude the Commission from questioning the extent an appeals arbitration would ensure the effectiveness of EU competition law, to which it concluded that an appeal to the CAS reinforced the restriction of competition.[29] Against this background, the Commission would likely find the UCI’s grip over the review process restrictive of competition.

Returning to the first of the ISU criteria, the question is whether the UCI’s sanctions and pre-authorization criteria are inherent in the pursuit of a legitimate objective. Considering the above, it is doubtful whether the potentially open list of criteria and the limited effective review of decisions could be considered inherent in the pursuit of a legitimate objective such as ‘the organisation and proper conduct of sport’. Furthermore, Velon’s case may turn on how well it can demonstrate that it has been unjustly put under pressure from the UCI.

4.3. Final thoughts on the ‘hampered’ series

It appears that the UCI has allegedly wielded its regulatory power through its event pre-authorization scheme to force Velon to remove a critical aspect of its races: the series. The UCI’s alleged move is further puzzling by the fact that none of the Hammer races interfere with the men’s or women’s World Tour race calendar (with the exception of Il Lombardia and Hammer Hong Kong), meaning that teams and riders would anyway be available. Even if there was an interference, it is important to keep in mind that professional cycling teams are usually sufficiently large and organized to compete in more than one race in the world simultaneously.

Finally, while the UCI did not actually remove the men’s Hammer races from the calendar, just an imminent threat of doing so may be sufficient to restrict competition. Cyclists are severely discouraged to participate in non-authorized events considering the sanctions they may face. Hence, event organizers, such as Velon, are completely reliant on the UCI to approve their events in order to have any chance at a successful and economically viable event,[30] and consequently, Velon cannot risk losing the UCI’s

approval for the Hammer races. Furthermore, the UCI has in practice already denied a women’s race at Hammer Stavanger, which greatly strengthens Velon’s claims against the UCI. Lastly, given the vagueness of the claim that the UCI overall hampered the development of the Hammer Series, it is possible that there are additional details that have not been publicized that could further support a potential violation of EU competition law by the UCI.

5. Conclusion

Velon has also requested interim measures that would force the UCI’s approval of a women’s race during Hammer Stavanger 2020. However, since interim measures are rarely granted,[31] it is unlikely Velon will succeed on this front. Nevertheless, based on the discussion above, there are quite a few signs that the UCI has perhaps overstepped its regulatory powers. The UCI’s alleged actions, especially its opposition to the organization of a women’s Hammer Stavanger race, beg the question as to how it will defend its decision as pursuing legitimate objectives and respecting the proportionality requirements. Moreover, it should be recalled that Velon’s complaints also concern the UCI’s equipment regulations and that there is a completely separate complaint from the Lega del Ciclismo Professionistico. Thus, due to the large territorial scope and the potentially wide range of actors affected by the UCI’s actions in these cases, it would be a missed opportunity if the Commission declines to further elucidate how sport governing bodies must exercise their regulatory powers in order to comply with EU competition law, especially when their own financial interests may be in play.

[1] Teams include: Bora-Hansgrohe, CCC Team, Deceuninck–QuickStep, EF Education First, Lotto Soudal, Mitchelton-Scott, Team Ineos, Team Jumbo-Visma, Team Sunweb, Trek-Segafredo and UAE Team Emirates.

[2] Both Team Sunweb and Trek-Segafredo also operate professional women’s cycling teams.

[3] See Registration Procedure for UCI Calendars: 2020/ 2020-2021, 11 on how the UCI approves events.

[4] See UCI Regulations, Part I: General organization of cycling as a sport, arts 1.2.019, 1.2.020, and 1.2.021 and Part 2 Road Races, art 5.006.

[5] Case C-519/04 David Meca-Medina and Igor Majcen v Commission of the European Communities [2006] ECR I-06991, para 42; See also Commission, ‘White Paper on Sport’ COM/2007/0391 final.

[6] Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings [2009] OJ C45/02, para 28.

[7] See the role of the national federations in handling the event registrations in the flow chart under section 4.2.1.

[8] See Commission, ‘Commission Staff Working Document - The EU and Sport: Background and Context - Accompanying document to the White Paper on Sport’ COM(2007) 391 final, section 2.1.4: ‘sports associations usually have practical monopolies in a given sport and may thus normally be considered dominant in the market of the organization of sport events under Article 82 EC’.

[9] Articles 1.2.002 and 1.2.004 of the UCI Regulations govern the cycling calendars, and it separates road cycling events into different calendars: the international calendar, which includes the UCI WorldTour and continental calendars, and the national calendars to which national federations are responsible. The UCI management committee holds the final say concerning the approval of continental calendars, see flow chart in Registration Procedure for UCI Calendars 2020/ 2020-2021, 11.

[10] The PCC is composed of 12 members (six appointed by UCI management, two representing athletes, two representing the WorldTour Teams and two representing the UCI WorldTour Organizers) and a president nominated by the UCI management (after consultation with the other members). However, given the PCC’s aforementioned composition and the fact that decisions are taken by a simple majority vote, in theory, the UCI only needs to rally its members and the UCI appointed president to ensure a motion is passed. Furthermore, ‘the UCI Executive Committee may suspend the application of regulations adopted by the PCC if it considers that interests of the UCI WorldTour are threatened’, see point 15 of the hyperlinked document.

[11] Case C-49/07 Motosykletistiki Omospondia Ellados NPID (MOTOE) v Elliniko Dimosio [2008] ECLI:EU:C:2008:376.

[12] ibid para 51.

[13] Case C-49/07 Motosykletistiki Omospondia Ellados NPID (MOTOE) v Elliniko Dimosio [2008] ECLI:EU:C:2008:376, Opinion of AG Kokott, para 98.

[14] Commission, ‘Notice published pursuant to Article 19(3) of Council Regulation No 17 concerning Cases COMP/35.163 — Notification of FIA Regulations, COMP/36.638 — Notification by FIA/FOA of agreements relating to the FIA Formula One World Championship, COMP/36.776 — GTR/FIA ' others’ (2001/C 169/03) OJ C 169.

[15] See UCI, Financial/Annual Report 2018, 110.

[16] International Skating Union’s Eligibility rules (CASE AT. 40208) [2017] C(2017) 8240, para 64.

[17] ibid para 168.

[18] ibid para 219.

[19] ibid para 220.

[20] ibid para 252.

[21] ibid para 244.

[22] ibid paras 340-342.

[23] The sanctions under the ISU’s 2014 Eligibility Rules also did not examine the specific circumstances of the infringement. See how the Commission examined this issue in ibid paras 260-262.

[24] UCI Regulations, Part I: General organization of cycling as a sport, art 1.2.009 provides that the organizer must submit the following documentation for the first time a race is organized: ‘- type of race (discipline, speciality, format); - description of the course including total length (in km) and, where applicable, that of stages and circuits; - the type and number of participating teams and/or riders' categories wanted; - financial aspects (prizes, travel and subsistence expenses); - references concerning organization’.

[25] International Skating Union’s Eligibility rules, paras 255-256.

[26] ibid para 257.

[27] Taken from the Registration Procedure for UCI Calendars 2020/ 2020-2021, 11.

[28] UCI Regulations, Part I: General organization of cycling as a sport, art 1.2.013.

[29] See International Skating Union’s Eligibility rules, paras 268-286.

[30] See how this issue is mirrored in ibid paras 68 and 133.

[31] Interim measures were only recently granted after not having been issued for nearly 20 years.

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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