Press And Media Premier League loses first round over cheaper TV football

February 8, 2011

The Premier League is the world’s most watched and most lucrative football league in terms of revenue.  So, revenue from television rights is vitally important to it.

The Football Association Premier League ltd. (FAPL) sells its rights in the broadcast of matches individually on a territory by territory basis. In order to access the service one needs a territorial decoder card from a licensee such as Sky. This is enforced by contractual provisions prohibiting the licensee from providing decoders and decoder cards outside the licensed territory.

This approach was challenged by intermediaries who have been offering decoders and decoder cards in the UK that had been obtained abroad, but not directly from the licensees. The rates were lower than those of the official UK licensee. This has now led to various prosecutions. Two test cases which are still pending could have far-reaching ramifications for sport, broadcasting and consumers.

Background

Karen Murphy (the landlord of the Red White & Blue in Southsea) was taken to court by Media Protection Services Ltd over her decision to import a Greek decoder to show the league games to her customers rather than using a Sky decoder, despite the fact that Sky holds the licence rights to show these games in UK.

The UK courts held that Murphy committed a criminal copyright infringement by circumventing the exclusive rights of the Premier League’s authorised domestic broadcasters (Sky). Karen Murphy thought this unjust and took her case to the highest European Court claiming that the prohibition against foreign decoders in the UK violates the European competition and free movement of goods legislation.

The second case focuses on the companies which supply publicans such as Karen Murphy with the decoder cards that enable them receive and view foreign broadcasts. The Football Association Premier League ltd. brought an action against QC Leisure & ors claiming that QC’s supply of decoder cards in the UK would infringe its copyright. The central point of the legal dispute was whether FAPL could enforce its licence terms to protect its copyright in the broadcasts. This case is now pending on the EU’s highest court as well.

Pubs win first round

According to the advice of the general Advocate of the European Court of Justice Juliane Kokott Karen Murphy as well as QC Leisure & ors will win the court battle over cheaper TV football. She held that the FAPL’s territorial exclusivity agreements of Premier League football matches are contrary to European Union law, because it is a “serious impairment of freedom to provide services”.  She added that the “economic exploitation of the [broadcast] rights is not undermined by the use of foreign decoder cards as the corresponding charges have been paid for those cards”.

However, this opinion is not binding. It remains to be seen if the court follows her advice.  Generally, in 80% of cases they do.

These cases are of huge significance for the Premier League and any incumbent UK broadcaster and could change the European landscape for the way right holders sell their rights. The cases underline how even well established businesses are facing new challenges through technology developments and changes in the legislation in connection with the protection and exploitation of their intellectual property rights.