Desktop version

Home arrow Law


The narrative provided in this chapter is built on an assessment of the combined influence of deregulation, technological innovation, and commodification in the market for the sale of rights to broadcast sporting events. Juridification, in particular through the application of the EU’s competition rules, is the necessary supplementary theme which asserts a concern to manage the process of change in a way that takes account of all affected interests.

Some of this is not sports-specific. The emphasis on market definition and market power which lies at the heart of orthodox approaches under EU competition law is perfectly appropriate in its deployment in the case of the sale of rights to broadcast sports events. Exclusivity and collective selling are common in markets for sports rights, but far from unknown elsewhere. There are no decided issues which are unique to sport, though it is certainly true that the Commission’s sensitivity to the acquisition of exclusive rights to ‘premium’ events for an extended period reflects the profound concern about the damage to market flexibility which may be inflicted in such circumstances on the technologically and commercially volatile broadcasting sector. It is at least possible that one undecided issue—the issue left untouched in Champions League concerning the potential for pursuit of solidarity in sport to justify an agreement to sell rights on a collective basis falling within Article 101(1) TFEU but inapt for exemption pursuant to Article 101(3)—will reveal a sports-specific feature of the regulation of broadcasting markets, but it has been argued that this is a stretch too far.237 By contrast, the restrictions on the sale of ‘protected’ or ‘listed’ events are sports-specific. They reveal an incursion into sporting autonomy which is generally regarded as unwelcome by governing bodies. This is to some extent an inversion of most of the material traversed in this book. I have frequently suggested that sporting bodies tend to dress up commercially [1]

motivated rules with the camouflage of tradition and sporting need: EU internal market law sometimes, but not always, demands change. In the case of the protected events legislation it is the EU and the public authorities in (some of) the Member States which claim to be acting on behalf of a perceived need to treat sport as a public good, and it is the commercial position of sporting bodies which suffers.

The combination of national and EU legislation governing ‘protected events’ diminishes the commercial value of the rights to broadcast such events by interfering in the ability of the holder of the rights to extract the highest price the market would yield. There is a loose similarity between the use of Article 101 TFEU to ensure that buyers of rights do not lock out actual or potential competition in the market and the use of the listing regime to open up particular events to the party that is not necessarily the one with the deepest pockets, but whereas the former is aimed at ensuring an adequate level of market access without dictating who shall win the competition, the latter entail public authorities making choices about who shall win, and not on the basis of price. This is a vivid proof of the notion that although broadcasting markets have become increasingly deregulated in recent years, thereby exchanging sector-specific regulation for more general application of ‘normal’ competition law, there remain some very idiosyncratic vestiges of assumptions that broadcasting, like sport, is special, but to a controversial and not always well-defined degree. Sporting bodies, commonly eager to make the case that their activities are ‘special’ as a means to maximize autonomy, are bitten by their own lofty rhetoric. If the integrative and social virtues of professional sport are advanced to secure favourable treatment under free movement and competition law, here those virtues are deployed to take away the opportunity to take maximum commercial advantage of those very activities.

  • [1] 36 See Case C-201/ 11P (n 218) para 11, Case C-204/11P (n 218) para 12, and Case C-205/ 11P(n 218) para 13. 237 See sect 11.7.
< Prev   CONTENTS   Source   Next >