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Broadcasting

Introduction

The three landmark decisions of the Court of Justice in the development of EU sports law are Walrave and Koch,1 the Court’s first venture into the field which established its refusal to grant sport absolute autonomy from the application of EU law; Bosman,[1] [2] the decision which vividly demonstrated the practical vitality of EU law as a means to challenge long-established features of sporting governance; and Meca-Medina and Majcen v Commission,[3] in which the Court spelled out the need for a careful case-by-case assessment of the compatibility of sporting practices with EU law which is infused by respect for, but not complete surrender to, the claim that sport is ‘special’. None of these cases concerns broadcasting. But it is in the field of broadcasting—in which the landscape has altered radically over the last thirty years—that the collision between EU law and claims to sporting autonomy has been unusually vivid and certainly at its most commercially significant.

Four themes serve to illuminate the radical patterns according to which the broadcasting market affecting sport has been reshaped in recent times. These are deregulation, technological advance, commodification, and juridification. Deregulation of the broadcasting market has proceeded apace since the 1980s. It has led to a significant increase in the number of competing suppliers: the marketplace is very different, and immensely more varied, than it was thirty years ago when there were only a small number of television channels. This transformation has also been driven by technological advance, the second of the four animating themes in this narrative. It is no longer just terrestrial television that provides the means to supply viewers with access to sports events. Satellite and cable broadcasting are now common and the advent of the internet dramatically increased methods of broadcasting sport. The market has grown and for major events such as the football World Cup and the Olympics it is global. Commodification of the market for rights to broadcast sports events is the consequence of the explosion in the number of methods by which to reach viewers. It is well understood that securing rights to broadcast the most popular events in sport is a centrally important method for establishing and maintaining a foothold in broadcasting markets more generally, especially if those rights can be acquired and sold on an exclusive basis where a premium price can be extracted from eager viewers with no other option. Commodification points to the rise of carefully nurtured brands, such as, to draw on football as the most vivid example, the Union of European Football Associations (UEFA) Champions League and the English Football Association Premier League (FAPL). The fourth theme is juridification, which means in short that legal questions and the threat of litigation have become more prominent. In some senses this is no more than a simple consequence of commodification. The financial stakes in sport are higher today than in the past and this breeds a greater readiness to go to law to defend or to advance commercial opportunities. There is, however, more to it: in particular, sport has long enjoyed a high level of autonomy from legal supervision and the rise of juridification in sport challenges that autonomy. It is fully in line with the thematic story told in this book that some aspects of the claim to autonomy are no more than cunning camouflage for a desire to maximize commercial advantage by sheltering from normal expectations of legal control, but some aspects of the claim to autonomy do hold water. Sport is sometimes special. The really interesting twists arise where legal assumptions clash with commercially significant custom and preference within sport. This is when the claim to autonomy receives its most rigorous scrutiny.

As far as EU law in particular is concerned, the many changes that sports broadcasting has undergone in recent years have not only been shaped by the prevailing legal environment but also in a more active sense they have demanded a legal response and, in particular, a response that is adequately sensitive to the peculiarities of the sector while at the same time protective of the assumptions of the EU’s internal market. How far does (and should) the special character of sport dictate context-sensitive application of orthodox legal rules? That is precisely the overall thematic tension that animates this book. The tensions generated by deregulation, technological advance, commodification, and juridification are especially vivid in football, the commercially and culturally dominant sport in Europe and in most of the world. In this chapter it is the friction between, on the one hand, the law of the internal market, most of all competition law, and, on the other, the protection of property rights as an expression of commercial value-creation and of sporting autonomy which underpins the discussion. A degree of intricately detailed analysis is unavoidable, but the purpose of this chapter is not to supply a practical guide to drafting contracts to sell rights to broadcast sporting events, although that market forms most of the background to the discussion. The purpose of this chapter is to traverse the interconnected themes of deregulation, technological advance, commodification, and juridification in order to understand what the story of EU law’s engagement with broadcasting reveals about the plausibility and scope of the claim that ‘sport is special’.

  • [1] Case 36/74 Walrave and Koch v Union Cycliste Internationale [1974] ECR 1405.
  • [2] Case C-415/93 Union royale belge des societes de football association ASBL v Jean-Marc Bosman[1995] ECR I-4921.
  • [3] Case C-519/04P Meca-Medina and Majcen v Commission [2006] ECR I-6991.
 
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