Football Association Premier League v. QC Leisure and Others (Case C-403/08); Karen Murphy v. Media Protection Services Ltd (Case C-429/98)
Introduction
On October 4, 2011, the Court of Justice of the European Union (‘ECJ’) held that licences for the broadcast of football matches which granted broadcasters territorial exclusivity and which prohibited television viewers from watching the broadcasts with a foreign decoder card were contrary to the free movement of services and to EU competition law. The ECJ held that the Football Association Premier League (‘FAPL’) which organises the (English) Barclays Premier League (‘BPL’) could not claim copyright in BPL games, but pre-recorded highlight sequences, graphics and accompanying music constitute ‘works’ as defined under relevant copyright laws and are therefore copyright protected. Finally, the ECJ ruled that the transmission of BPL games in pubs and public houses constitutes ‘communication to the public’ for the purposes of European Union (‘EU’) copyright law and requires consent from the rights holder, i.e., the FAPL.
Background
The BPL is home to some of Europe’s most successful and famous football clubs. The BPL is organised by the FAPL and consists of over 38 rounds of ‘home and away’ matches beginning in August and ending in May the following year. In addition, the FAPL organises the filming of BPL matches and licences exclusive rights to broadcast the matches for three-year terms on a territorial basis through an open competitive tender procedure. In August 2010, the FAPL began its association with BBC and BSkyB (‘Sky’) for the broadcast of BPL matches in the United Kingdom. These rights were valued at GBP 1.8 billion. In addition, the FAPL also receives a further GBP 1.4 billion from the sale of international broadcast rights. Each BPL match is filmed by the broadcaster and the broadcast signal is then compressed, encrypted and transferred by satellite to each licensed broadcaster. Under the current access system, subscribers with a satellite dish can decrypt and decompress the signal with a decoder card.
The FAPL commercialises BPL matches by granting exclusive rights to broadcasters on a per-territory basis, requiring them (i) not to exploit their rights outside their allocated areas, (ii) to encrypt their programmes so that they cannot be seen outside their territory and (iii) not to sell decoding cards outside their territories. The issue in the present matters arose from the fact that, in the UK, the price for subscription to Sky’s broadcast services, especially for pubs and other public houses, was considerably high as a result of the monopoly enjoyed by Sky. Therefore, many pubs and public houses in the UK resorted to using foreign (especially Greek) decoder cards to access the BPL games at a lower price and subsequently air the games.
Facts
In Football Association Premier League v. QC Leisure and Others (Case C-403/08), the FAPL brought civil actions against pubs that screened BPL matches, and suppliers of Greek decoder cards to public houses and bars in the UK which made possible access to the broadcast. In Karen Murphy v. Media Protection Services Ltd (Case C-429/98), the FAPL initiated a criminal proceeding against the landlady of a pub who used a Greek decoder card to publicly transmit BPL matches. Mrs. Murphy was subsequently fined GBP 8,000. These two cases came before the ECJ following preliminary references made by the High Court of England and Wales under Article 267 of the Treaty on the Functioning of the European Union (‘TFEU’). The main issues that came up for consideration were whether preventing pub owners from using decoders in the UK restricted the freedom of non-UK broadcasters to provide goods or services in the UK, a fundamental freedom protected by the TFEU; and that the exclusive licences entered into by the FAPL with non-UK broadcasters breached EU competition law because they prohibited those broadcasters from supplying decoder cards for use in the UK and so limited the markets in which those broadcasters could make sales.
Judgment
The opinion provided by the Advocate General of the ECJ Julianne Kokott in February 2011 concluded that the exclusive territorial broadcasting restrictions imposed by the FAPL’s exclusive broadcasting agreements constituted an impairment of the freedom of other broadcasters which could be justified on the basis of protecting commercial interests.
The ECJ ruled that while an exclusive broadcasting agreement by itself would not be anti-competitive, contractual provisions contained therein that aimed at bestowing absolute exclusivity to national markets thereby rendering access to that national market difficult for non-domestic competitors contravenes the common market principles on which the EU is based. Therefore, the exclusive broadcasting agreements entered into by the FAPL with broadcasters were restrictive by their very nature.
In addition, the ECJ also held that the restrictions imposed by the FAPL could not be justified on the basis that they protect the rights of the intellectual property holders by ensuring that they are appropriately remunerated. It is relevant to note that current EU law provides only for rights holders to be "appropriately" remunerated. The payment of a premium by broadcasters to secure exclusive territorial rights results in artificial price differences between national markets that are irreconcilable with the fundamental aim of creating an internal, common market within the EU.
Further, the ECJ held that national legislations such as UK Copyright, Designs and Patents Act 1988 that render unlawful, the import, sale and usage of foreign decoding devices that provide access to broadcasts from other EU member states, restrict the freedom to provide services within the EU which cannot be justified either by the need to ensure that rights holders are appropriately remunerated or by the objective of encouraging the public to attend football stadiums.
Interestingly, the ECJ held that there is no copyright in sports matches themselves but there is copyright in the opening video sequence, BPL anthem, pre-recorded highlights and onscreen graphics, which can be considered “works”, thereby implying that the screening of BPL matches in pubs and bars constitutes “communication to the public” within the meaning of the Copyright Directive, and the authorisation of rights holders is therefore necessary in order to show the works.
Conclusion
In the final judgment, the ECJ has permitted pub owners to use the decoding devices and allowed the viewing of matches so far as they were used only for viewing and not broadcasting. The ECJ has suggested that live feeds transmitted to foreign broadcasters that display FAPL branding may be sufficient to ensure that additional copyright authorisation would be required from the FAPL, especially in the UK, before any public broadcast of BPL matches.
For the FAPL, the judgment couldn’t be more ill-timed. The auction process for future broadcast rights is expected to commence at the end of 2011. In addition, Ian Ayre, Liverpool FC’s managing director, suggested that England's top clubs should receive a greater share from international television rights because of their popularity among fans and even be able to negotiate their own TV agreements. The FAPL has to consider whether it can maintain the current licensing structure based on national territories. The FAPL may license broadcast rights to BPL matches on a pan-European basis, or to broadcasters in Member States more selectively, or even (although this is considered unlikely) to run its own European channel.
United States Olympic Committee v. International Olympic Committee (CAS 2011/O/2422)
Introduction
On October 6 2011, the Court of Arbitration for Sport (‘CAS’) held that the International Olympic Committee (‘IOC’) rule prohibiting athletes suspended for more than six months for doping related violations from participating in the next Olympic Games following the expiration of their suspension was invalid and unenforceable.
Background
The IOC defines ‘Doping’ as “the administration of or use by a competing athlete of any substance foreign to the body or any physiological substance taken in abnormal quantity or taken by an abnormal route of entry into the body with the sole purpose of increasing, in an artificial and unfair manner, his/her performance in the competition.” Following the expulsion of the Team Festina from the Tour de France in July 1998 after criminal investigators uncovered evidence of systematic drug use, the IOC organised the World Anti-Doping Conference at Lausanne in February, 1999 to identify ways and means for a regulatory response to a new level of co-ordination and effectiveness. The conference resulted in the establishment of the World Anti-Doping Agency (‘WADA’). WADA’s key activities include monitoring of the World Anti-Doping Code (‘Code’) - a document that internationally harmonises regulations regarding anti-doping across sports and keeps track of the development of technology in sports to revise the Code and update its list of prohibited substances in sports. Sportspersons and sports governing bodies are bound to adhere to the Code. A participant, when agreeing to participate in any international or national event of a body affiliated to the WADA, undertakes to conform to the norms of WADA, and submits to the testing conducted by it. Anti-doping provisions and rules have now become mandatory in the athlete participation forms and the rules of membership for the various sports governing bodies.
Facts
On 27 June 2008, the IOC enacted the now infamous ‘Osaka Rule’ as a way to strengthen the fight against doping, through the following resolution:
“The IOC Executive Board, in accordance with Rule 19.3.10 OC and pursuant to Rule 45 OC, hereby issues the following rules regarding participation in the Olympic Games:
1. Any person who has been sanctioned with a suspension of more than six months by any anti-doping organization for any violation of any anti-doping regulations may not participate, in any capacity, in the next edition of the Games of the Olympiad and of the Olympic Winter Games following the date of expiry of such suspension.
2. These regulations apply to violations of any anti-doping regulations that are committed as of 1 July 2008. They are notified to all International Federations, to all National Olympic Committees and to all Organizing Committees for the Olympic Games.”
Therefore, the Osaka Rule would, in effect, apply only to athletes guilty of a doping violation (over 6 months suspension) who were selected to represent their country for the subsequent Summer Olympics or Winter Olympics
LaShawn Merritt, the reigning Olympic and World Champion in 400 m sprint and 4 x 400 m relay, failed three drugs tests in the winter of 2009–2010. Merritt tested positive for the banned steroid Dehydroepiandrosterone. He was subsequently banned for a period of two years from the first violation, which was subsequently reduced to 21 months, ending on July 27, 2011. As a result, Merritt was cleared to represent the USA at the 2011 World Championships in Daegu where he claimed the silver medal. However, as a result of the Osaka Rule, he remained ineligible to compete at the 2012 Summer Olympic Games in London.
The validity and enforceability of the Osaka Rule was hence challenged in the CAS by the United States Olympic Committee (USOC). The USOC contended that:
a. contrary to the IOC’s position, the Osaka Rule constituted a sanction and not an eligibility rule, as it formed an impermissible substantive change to the Code in violation of Article 23.2.2., was not enacted in compliance with the provisions of the Code and was a violation of the principle of double jeopardy; and
b. the Osaka Rule was not consistent with the Olympic Charter, because it violated certain specific provisions of the Olympic Charter. In addition, the application of the Osaka Rule would inevitably result in unjustifiable discrimination between athletes and affect the dignity of athletes in a manner contradictory to the fundamental principles of the Olympic Charter.
WADA independently submitted a brief, in an effort to ensure that the CAS arbitration panel would have a comprehensive view of the potential issues surrounding the Osaka Rule.
On the other hand, the IOC argued that the Osaka Rule constituted an eligibility rule in relation to qualification for the Olympics rather than as an additional sanction. The IOC further argued that the Osaka Rule protected the values of the Olympic Movement from the “scourge of doping”, that athletes had no automatic right to participate in an Olympic event and that the rule did not conflict with double jeopardy as it was not an anti-doping ineligibility sanction.
Judgment
Previously, in Prusis v. IOC (CAS OG 02/001), the CAS had first addressed the issue of whether the IOC could refuse entry into the Olympic Games to an athlete who had already served an anti-doping related sanction. The CAS arbitration panel had held that the aim of such a sanction was to impose a further sanction on the athlete for the same offense. CAS jurisprudence in RFEC v. Alejandro Valverde v. UCI (CAS 2007/O/1381 [76] ) has indicated that qualifying or eligibility rules that serve to facilitate the organisation of an event and to ensure that the athlete meets the performance ability requirement for the type of event in question. In particular, the panel held that eligibility rules define certain attributes or formalities required of athletes, rather than sanctioning undesirable behaviour.
In addition, the CAS had provided advisory opinion on substantially the same question to the IOC and an anonymous international sports federation. In its advisory opinion to the IOC, the CAS had held that the Osaka Rule was an eligibility rule. In the present matter however, the CAS held that the manner in which the query had been previously posed by the IOC and the lack of adversarial proceedings had prevented the advisory panel from considering all possible issues. As regards the confidential advisory opinion provided to the international sports federation, the CAS panel opined that a rule which had similar effect to the Osaka Rule was penal in nature and not an eligibility rule as the panel found intent to sanction the athlete.
In discussing the scope of the Osaka Rule, the CAS held that the Osaka Rule does not have an immediate effect on an athlete suspended under the Code that prevents him from participating in a qualifying competition. However, even though the IOC claimed that an athlete could participate in any other elite competition, the conclusion, under the Osaka Rule, was that it still holds the athlete ineligible as regards the Olympic Games which comes under the definition of ‘competition’ under the Code. It was also stated that the Osaka Rule amounted to double jeopardy as it prevented an athlete from participating in the Olympic Games after serving a period of suspension. The main reason that the Osaka Rule was held to be a sanction was that the IOC adopted its own anti-doping rules with the Code as reference model. Rule 44 of the Olympic Charter expressly incorporates the Code as being keystone to the conduct of the Olympic Games. Therefore, the IOC is bound by WADA’s definition of the term ‘ineligibility’. Under Article 10 of the Code, ineligibility constitutes a sanction, thereby rendering the fact that an athlete could participate at other international competitions redundant. As Rule 44 served to increase the period of ineligibility from the original doping violation (i.e., from between 6-24 months until the next Olympic Games), the Osaka Rule was invalid.
Additionally, under Article 23.2.2 of the Code, signatories to the Code could not add any additional provisions to their documents of eligibility/charters which could change the effect of the period of ineligibility under the Code. The CAS arbitration panel stated that such a rule needed to be incorporated within Article 10 of the Code when it was next reviewed.
Conclusion
The fact that IOC cannot make any substantive changes to or deviate from the Code seems fair on the basis of equity and the legal rule book. The larger issue however, especially in light of the London Olympics 2012, is that a number of national sports organisations and event organisers impose additional sanctions (or eligibility criteria) on athletes found guilty of doping. By way of illustration, the British Olympic Association prevented star athlete Dwain Chambers from being selected for Team GB in the 2008 Beijing Olympics after he had served his drugs ban. The present judgment potentially paves the way for similarly placed athletes to challenge their life bans from the Olympic Games. It does seem to bring an end to a never ending debate of morality and regulations versus rights of an athlete by providing for just one sanction to athletes who test positive.
- Log in to post comments