What is the obligation imposed on the listing state?

The underlying anxiety is plainly that broadcasters to whom a fee must be paid by viewers to secure access to transmissions will acquire exclusive rights to major events with the consequence that the general population will be deprived of the opportunity to view such events for free. As explained, such events are certainly of great interest to the commercial model of providers of pay-per-view services, but they are of interest to citizens more broadly too. The EU regime requires that, if a Member State has chosen to list an event, the free broadcaster gets its chance. As a Commission website chattily has it: ‘A Football World Cup final or the Olympic Games only on pay-TV, these are the scenarios which the EU wanted to prevent from happening’.^9 The commodification of sports events shall have limitsTh0

But what exactly does Article 14 entail? Once a state draws up the list of events that it perceives as being of ‘major importance for society’, if it chooses to do so, it is entitled to take measures to ensure that broadcasters do not broadcast those events on an exclusive basis ‘in such a way as to deprive a substantial proportion of the public in that Member State of the possibility of following such events via live coverage or deferred coverage on free television’. It is, however, far from clear just what is envisaged. At one extreme on the spectrum of interpretation the buyer of exclusive rights must make the event available for free, either on its own channel or by permitting a free-to-air channel free access to the rights. This will rob it of subscribers willing to pay, for there will be no need to pay. This will plainly dramatically reduce the price that the broadcaster is willing to pay to the owner of the rights, typically the sport’s governing body: the commercial glitter of exclusivity as a means to attract a portfolio of subscribers and interested advertisers is lost. At the other extreme the regime might be thought to mean merely that a free-to-air broadcaster is guaranteed access only to the bidding process on a non-discriminatory and transparent basis, so that there is a ‘possibility’ for the general population to have the opportunity of viewing the event free-to-air, but that it has no legal basis for complaint if exclusive rights are ultimately awarded to a pay-per-view broadcaster which bids more for the rights. Occasionally a free-to-air broadcaster may be able to promise a larger audience which may be more attractive to a sporting body aiming to enhance its long-term popularity and to satisfy its sponsors than the short-term profit represented by a higher fee paid by a broadcaster whose services are not available free of charge to the viewer, but normally the higher bidder will win, and this interpretation might seem to defeat the point of Article 14. A more moderate interpretation would hold that the free-to-air broadcaster is entitled to show the event but that it must pay a price to the rights holder (the organizer or another broadcaster who has bought them). The Directive, however, is silent on how any such price falls to be calculated or what happens in the event of a dispute. There is no ruling of the Court of Justice on how to choose between these competing interpretations of the legal obligation placed on the listing state.

It is clear that both the possibility of intrusion into the autonomy of the rights holder and the uncertainty about the depth of intrusion will lower the price tag for ‘listed’ major events. The more moderate interpretation, in between the two extremes, is certainly the most plausible attempt to balance the underlying tensions caused by, on the one hand, the value that a grant of exclusivity adds to the right to broadcast a sports event and, on the other, accessibility of that event to the wider population. It is, moreover, the interpretation that seems in practice to be guiding the operation of the EU regime in the minority of Member States that choose to ‘list’ events.[1] [2] [3] In the United Kingdom, the process is managed by OFCOM according to a Code of Practice published pursuant to the Broadcasting Act 1996.192 This makes explicit that the scheme ‘is concerned with providing an opportunity for live coverage to be made available’, but that it ‘does not require or guarantee live coverage of listed events’.i93 The Code sets out the circumstances in which OFCOM will permit a listed event to be shown exclusively live on a subscription channel: there must have been an opportunity, not taken, for a free-t o-air broadcaster to acquire the rights on fair and reasonable terms.

It is a condemnation of the EU’s regime that its precise legal shape is open to doubt. This is largely the consequence of a lack of clear articulation of the underlying policy pursued by the Directive, which deserves to be addressed later, after further legal obscurities are exposed.

  • [1] Lefever (n 20) 243—45.
  • [2] OFCOM, Code of Practice accessed 29 November 2016. See M Milne, The Transformation of TelevisionSport: New Methods, New Rules (Palgrave Macmillan 2016) ch 5.
  • [3] OFCOM, Code of Practice (n 192) para 1.10.
 
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