Rights to Broadcast Sporting Events under Italian Law

By Ferrari, Luca | The International Sports Law Journal, January-April 2010 | Go to article overview

Rights to Broadcast Sporting Events under Italian Law


Ferrari, Luca, The International Sports Law Journal


1. Introduction

In this chapter, we explore the Italian scenario of the very current and ever controversial subject of the ownership of and access to special information with extraordinary commercial and entertainment value -the voice and video dissemination of sports events. The contending parties include the sports leagues and associations, the sports clubs, the players, the powerful media conglomerates, the fans and the public, the regulatory agencies and, of course, the politicians. With such diverse interests and so much economic power at stake, the policies and the rules are fluid and often enigmatic. We strive here to give the reader a workable understanding of this changeable mosaic.

2. The ownership of broadcasting rights - from individual to collective selling

2.1 The legal background

Italian scholars traditionally tend to emphasize the importance of a dogmatic and systematic collocation of the situations, which require legal recognition and protection. In relation to broadcasting rights, they have proposed, tried and rejected several possible juristic conceptualizations. All seem to reject the possibility to have such rights fall directly into the notion of copyright. Not so unanimously rejected is the more general classification of the media right to a sport event as a new kind of intellectual property, although it is noted that Italian Law does not provide a general discipline and definition of this category of rights, but rather a limited number of specific and narrowly defined rights (copyright; trademark; patent right etc ...) none of which fits the idea of a right to commercially exploit a football game. No matter how entertaining, a football match does not involve any intellectual creation.

The scholars' effort is not just an academic exercise. Effective legal protection must be found for a value, which undeniably is the object of investment, interest and negotiation. Hence the importance of its identification as a value, whose ownership or whose control can be affirmed by a court of law. UK courts have come to the prevailing conclusion that such value cannot be the object of an intangible right. Rather, the only available protection is that provided by the property or tenancy of the venue where the event is staged and, by its organization, the right to control access to the stadium or racecourse, admitting spectators under contractual restrictions.

A similar approach has been adopted in several continental European jurisdictions including Italy (1). However, the latest tendency seems to be that of providing a protection based on the idea of an exclusive right in the sporting event as the result of the specific economic activity (value creation) of the organizer or investor. From an idealistic perspective, it is the right of the organizer of the game not to be deprived of the results of its economic activity and investments, in other words the sports spectacle as a new kind of entertainment not protected by copyright and yet whose value cannot be "siphoned away" to benefit other entities without the consent of the "owner" (2). This perspective coincides with that of the US, where the Courts recognize a right in the commercial value of a sports competition and protection is afforded against "commercial misappropriation" of related goodwill.

Recognition and protection of business investment is still the principle underpinning of the legal protection afforded to organizers of sports competition, affirming ownership and goodwill in relation thereto. However, while this legal reasoning is generally applicable to any sports event, which commands a relevant TV audience and entails a corresponding broadcasting value, professional team sports broad-casting rights have been the object of specific statutory regulation. In particular, Legislative Decree ("D. Lgs") n.9 of 9 January 2008 (3), the only existing Italian statute governing ownership and commercialization of sports broadcasting rights, applies to professional team-sports' tournaments or championships. …

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