In 1995, a decision by the European Court of Justice revolutionised football. As any football fan will tell you, the case of a little-known Belgian footballer, Jean-Marc Bosman, transformed the rights of professional footballers and other sportsmen and women. The case banned restrictions on foreign players within the national leagues of European Union countries and allowed players in the EU to move for free to another club at the end of their contracts.
Now, amid all the mounting troubles over phone-hacking by the News of the World, an opinion by the ECJ’s Advocate General Juliane Kokott may do the same for broadcasting, dealing a potentially enormous blow to Rupert Murdoch’s BSkyB and to England’s Premier League.
The Kokott ruling earlier this year made one-day headlines. But the fact that it has disappeared from the news does not mean the issue has gone away. It centres on a dispute between a Portsmouth publican, Karen Murphy, and the Premier League, although Sky is affected just as much, if not more. Sky charges pubs and clubs high and variable rates to show its Sky Sports packages. The costs can be in excess of £1,000 a month.
Murphy got around this by buying a cheaper Greek satellite decoder card from a company which had bought the rights to show British football matches and used it to show games at her pub. Appalled by the notion that anyone would try to avoid paying the huge prices of its Sky deal, the Premier League took Murphy to court on the grounds that she had broken copyright law. Despite losing at national level, Murphy took the fight to the ECJ and is now on the brink of winning.
The Advocate General’s advice to the ECJ is that restricting the sale and viewing of sports broadcasting rights to one country is “contrary to EU law” as it breaches internal market regulations on the freedom to provide services. Legal jadvice does not tend to be much clearer than that.
Kokott’s ruling is not yet legally binding, but it is extremely likely that the ECJ, which endorses most of the opinions of its Advocate General, will make it binding in the coming months. Should that happen, anyone (not just pub owners) who wants to watch Premier League matches would be able to buy a satellite decoder card from any EU country and save themselves hundreds of pounds. It is estimated that five million of Sky’s nine million-plus customers pay primarily for sport content, including football. These people, who have been putting some £2.5 billion into Sky’s coffers each year, albeit for more than just football, could now buy a decoder card and cancel their Sky contract.
The knock-on effects of this could be considerable. Sky would probably have to drop its subscription prices, as it would be competing with a multitude of different European broadcasters. It could also have an impact on the sale of broadcast rights for other major sporting events.
Such a ruling would hurt the Premier League and its clubs as much as it would Sky. The value of television rights in the United Kingdom would plummet, although the football authorities could compensate, in part, by increasing the prices of their international rights outside the EU.
They could also move to restrict all foreign sales of their matches. But the days when they could get a figure like the £1.6 billion Sky paid for the rights to most of the 138 Premier League matches in the current deal, which runs from 2010 to 2013, and £159 million from Setanta for the remaining matches would be gone.
In the short, medium and long term, this is good for the game. Although the Premier League has argued that the big losers from this would be grassroots football clubs, this is entirely spurious. The Premier League gives a tiny fraction of its revenue to the amateur game, while it divides hundreds of millions among the 20 Premier League clubs.
Meanwhile, the lure of massive TV revenues is, in large part, responsible for the fact that British football clubs are more indebted than all other European clubs added together. The massive TV broadcasting deals have driven players’ wages and transfer fees into the stratosphere, which in turn have driven ticket prices out of control and beyond the reach of countless supporters.
Besides, since this ruling would apply equally to the broadcasting rights of all EU leagues, including the main rivals Italy, Germany and Spain, there would not be a detrimental impact on the quality of the players attracted to Britain.
With the gutless but anticipated decision by Tory Culture Secretary Jeremy Hunt, who has long admired the Murdoch empire, to allow News Corporation to buy out the remaining BSkyB stock, this ruling could not come a minute too soon. So Juliane Kokott may well become an unlikely heroine for sports fans.
Aside from taking away a large chunk of BskyB’s revenue, her ruling could fundamentally re-balance the relationship between media giants, greedy sports governing bodies and the long-suffering supporter. Amen to that.
