Sports Broadcasting: Fair Play from a EU Competition Perspective
van der Wolk, Alex, The International Sports Law Journal
Sports have always been in the heart of people. We love to participate in sports and, equally, we love to watch sports. Stadiums and venues have been erected to enable the public to quench this thirst for sportsmanship and entertainment. However, stadiums and venues have limited seating capacity, but thanks to the transmission of signals, people from all over the world can be virtually present at the game.
Because sports broadcasts are, next to films, the most popular programmes on television, the demand for them by broadcasting organisations is very high. Evidently, it is of great interest to broadcasting organisations to have the exclusive right to televise a game or event for a given territory and they are therefore are often willing to pay large sums of money to acquire this right. Organisations selling the broadcasting rights in turn rely more and more on the income flowing from TV rights sales and will thus seek ways to maximise this income.
The objective of this article is to give an overview of cases which the European Commission has dealt with regarding the sale of sports broadcasting rights. The cases have been examined from the perspective of competition law. I will only give a general outline of each case and describe the outcome, as the focus is on presenting an overview of the various cases concerning TV rights and sport.
On 19 February 1991, the Commission gave a Decision in relation to a proceeding pursuant to Article 85 of the EEC Treaty (IV/32.524--Screensport/EBU Members). The parties in this case were the European Broadcasting Union and a company called Screensport. The issue was a television exchange system called "Eurovision".
The European Broadcasting Union (EBU) is a consortium of broadcasting organisations, which was established in 1950. Membership to EBU is open to broadcasting organisations from member countries of the International Telecommunications Union (ITU), provided that it is a broadcasting service of national character and importance. The broadcasting organisation also needs to fulfil a number of additional requirements, amongst which the requirements to cover the entire national population or a substantial part thereof, to provide balanced programming to all sections of the population and to produce a substantial number of their own broadcasts. As such, they have many of the characteristics of public broadcasters, and indeed most of the members are public broadcasting organisations.
The EBU had adopted a television exchange system called "Eurovision". Eurovision enables members of EBU to acquire the broadcasting rights of events (including sports events) in various countries. The system is based on reciprocity: whenever a broadcasting organisation covers an event that is of potential interest to other members of EBU, it offers the signal free of charge to the other members, provided they will do the same in return.
In this case, a company called Screensport, which is a transnational satellite television sports channel, registered a complaint at the Commission, concerning the refusal of EBU to grant sublicenses to sports events to Screensport, with the effect that Screensport was deprived from competition with the EBU and its members. Screensport also complained about the joint venture between EBU and certain members on the one hand and News International on the other, whereby a transnational satellite television sports channel called "Eurosport" was established.
As a result of its actions, EBU had obtained the exclusive rights to a number of major international events. With the exclusive broadcasting on the Eurosport channel, companies like Screensport, were allegedly discriminated against and prevented from providing meaningful competition.
The Commission determined that at the time there were only two transnational commercial television channels, namely Screensport and Eurosport, which both used the same satellite and which were therefore direct competitors for the same geographic audience, programme material, sponsors and advertisers. …