"...widespread acceptance is that sport is of public value and it is this value that underpins the argument for legal protection." Discuss

In the UK measures were taken ensuring public access to events of national interests in 1954 and our now governed under the 1996 Broadcasting Act. Numerous European states now have similar regulations. However, given the financial stakes, judicial controversy is of no surprise.

Arguably, free-to-air broadcasting continues to receive powerful ‘legislative’ backing and media companies consequently feel the political and economic pressures from national governments. However, litigation shows the failure of media companies such as Kirch and TV Danmark 1 to understand fully the social and cultural importance of the rights at their disposal. Some describe their actions are no more than “…cynical attempts to maximise revenue and evade in any way possible domestic and European legislation designed to protect the public interest.” Though there is much truth in this, the existing listed event legislation is complex and currently invites such litigation. The different approaches adopted by the High Court and the House of Lords, on the one hand, and the Court of Appeal on the other, in TV Danmark 1, clearly indicate divergent views as to the ‘appropriateness’ of listed event legislation. Furthermore, the definition of events with ‘special national resonance’ is subjective. Who is to say that the Derby resonates more than the British Grand Prix? An event’s likelihood of ‘commanding a large television audience’ is similarly open to speculation. Test match cricket and Open golf attract very much smaller audiences than ITV's coverage of the UEFA Champions’ League.

One particular problem domestically is the absence of a mechanism by which a fair price for free-to-air rights can be ascertained at an early stage of proceedings. Even with such a mechanism in place however, such assessment is likely to be seen as “largely artificial.” It might be useful to compare the operation of the various national regimes in order to determine the best practice. For example, Lord Hoffman in TV Danmark 1 noted with approval the Danish requirement that free-to-air broadcasters respond within fourteen days to an inquiry made by the owner of the rights as to whether they have an interest in purchasing them.

There is a distinct argument in that any regulation ensuring free public viewing drastically reduces potential income, limiting available revenue to be invested back in the sport. Are the public better served by the new subscription channels, with their specialist, technically advanced coverage? Few sports are classed as ‘prestige’ events; but many have gained little from technological ascendancy. At least some of the money that free-to-air broadcasters would previously have spent in buying major events might be deployed in promoting and popularising these less well-known sports. However, is the money spent on player’s wages, or improving the service to the public by improving the sport? The example of Premiership football suggests the former, denigrating the argument for pay-TV. Wages will spiral and small clubs will struggle to exist. Conversely, one analyst believes that the Olympics and BBC, need each other equally; “… the quickest death for the Olympics would be to forge a relationship with a pay-TV operator. It would quickly dwindle into obscurity.” Perhaps this explains the IOC’s decision to award the rights to the next two Olympics to the European Broadcasting Union, the coalition of free-to-air broadcasters of which the BBC is a member. “…otherwise …most of the 20-plus sports would be ignored.” 

Is it not better to leave the exploitation of transmission rights to the operation of the market - regulated by competition law alone - as with films and other popular programme genres? The previous EU Competition Commissioner Monti’s ‘new media’ boasts “top-class sport… crucial for encouraging the growth of the new media and live broadcasting rights … benefit consumers, the media and the clubs.” Nor are the social and cultural benefits thought to stem from watching sport on television without reservation. Sport, has a less appealing side: instilling a sense of belonging and community can lead to intolerant nationalism or religious bigotry. Certain sports act as foci for racist groups and images of successful black athletes may serve to reinforce racial stereotypes. To the extent that the public has a genuine need for information about sporting events this may be met by brief news reports or, at most, highlights. Moreover, recognition of a right of access to major events, whether or not premised on a right to information, would be problematic for those EU countries which have decided not to list sporting events or have adopted very restrictive lists. As a last resort, those who have not subscribed to pay-TV may still gain access to television coverage of key events in public places.

The ‘recreational’ function of televised sport is more difficult to contest. Undoubtedly, most people watch sport on television for its entertainment value. But if this is so, why should sport programmes be treated any different from other forms of highly ‘desirable’ entertainment, for example films - which are not subject to protective legislation? In the UK, soap operas such as Coronation Street can attract regular audiences of over 15 million and seek to reflect genuine aspects of modern day society, encouraging the audience to engage critically with topical issues. Like sports programmes, they provide a common ground for discussion between friends and strangers, yet it is hard to imagine key episodes being listed as events of national importance. The equation of major sporting events with other forms of popular entertainment such as films or soap operas can nevertheless be countered on two fronts. Though popular soaps may provide insights into society, they are ultimately a form of fiction and are known to be so. They do not create the strong sense of national or municipal identity that results from watching a ‘sacrosanct’ sporting event. Secondly, even if one were to accept that soaps can play an important role in creating a sense of community, it does not follow from the fact that because key episodes are not listed that we should not list major sporting events. There are obvious differences in the way the programmes are produced and marketed which distinguish them from sporting events. Alternatively, one might concede that certain entertainment programmes could quiet appropriately also be listed: would it, for example, be unacceptable for Coronation Street to suddenly be offered only on a subscription basis. Moreover, although many pubs and clubs do enable people who have not subscribed to pay-TV services to watch popular events, not all such venues offer such facility. For people living in isolated areas this may simply not be an option and also excludes a significant section of the sporting public, namely, children and religious groups.

Arguably, people have come to expect access to key sporting events on television because of the historically dominant position of free-to-air broadcasters. Nevertheless, expectations resulting from this past dominance “should not shore up” their position in the highly competitive television market today. Undoubtedly, some of the unease created by the present regime is that the rights owners are not compensated for their loss in revenue. In the UK, it is of course not unusual for individuals to find that their property is less valuable because the state restricts how it can be exploited. Leases serve a good example. While there appears no legal requirement under domestic or European law for the state to compensate the owners of sports rights for their loss, it is interesting to contrast the listed event legislation with UK controls over the export of works of art. In this context the owner is protected from making a loss because any offer must be at the ‘fair market value’, equivalent to the auction or contractual price paid by the owner. Given the genuine public interest in the availability of major sporting events, it is arguable that, ultimately the public and not the sports right owners should foot the bill. The problem lies, of course, in working out how this might be achieved in practice. Increasing license fees or the subventions paid to public service broadcasters’ are not attractive options politically. Nor would it seem desirable for additional revenues to be used merely to give the established public service broadcasters an advantage over advertiser-funded free-to-air broadcasters, given that the objective is merely to facilitate access. Lottery funding is not an option as demands are already substantial. On the other hand, it is probable that, in the context of listed events, regulation merely serves to limit the considerable profits to be made from the exploitation of sports rights, whereas, in the heritage property context, regulation ensures that the owner of the art object does not make a loss by requiring that he or she receives what they paid for it. The decision to compensate in the latter but not the former may be seen as reflecting a fair balance between the public and private interests at hand.

Clearly, policy arguments for intervention are quite finely balanced. Ultimately, the case turns on whether or not we accept that sport has a cultural and social value over and above its commercial aspects. Would we accept legitimate a decision if Wimbledon was shown on Sky Sports 1, available at most to 7.4 million ‘privileged’ subscribers? Unease over such an outcome may stem not just from our exclusion from a form of valued entertainment but also from the break with tradition and the loss of an important cultural event. In relation to UK, analogy is rightly drawn with heritage. With regard to property; those who live in listed buildings cannot do with them exactly what they want. Legal protection of sports rights may not seem so strange when one considers that the state is often willing to restrict the way in which individuals use their property in order to realise specific social benefits.

It becomes imperative to note that the objective underlying UK listed event legislation cannot be achieved through operation of competition law principles alone. Although the doctrine plays a useful role in supplementing listed event legislation, for example: limiting the time during which rights can be tide up in the hands of a particular purchaser, or overseeing potentially anti-competitive practices such as the joint selling and joint purchasing of sports rights. Competition law, however, cannot guarantee that major events will be bought by free-to-air as opposed to pay-TV broadcasters. Tom Hoehn, partner and Head of the European Economics practice of PricewaterhouseCoopers, perhaps rightly suggests a “… move towards the degree of certainty seen in US regulation of sports broadcasting, by confirming and clarifying its policy rules on the balance between free-to-air and pay-TV, and on the risk of 'foreclosure' through exclusivity, bundling and mergers.” The need for the EU to set out a clear framework of this type is especially pressing given the speed of market and technology development, and the close inter-relation between the policy areas involved. This approach would build on the common EU regulatory framework for communications networks and services, which has integrated sector regulation and competition policy principles. However, in some respects, attempts to regulate the ‘media rights’ market are extremely patronising. Event owners are only too aware of their responsibilities to their sports and the need for an integrated programme maximising revenues while retaining exposure for the short-term benefit of sponsors and the long-term benefit of the sport’s popularity. These factors militate against ‘sacrosanct’ events being sold to pay-TV broadcasters with relatively few subscribers. Listed event legislation consequently looks set to remain an important feature in the UK legal landscape. With astonishing prices being paid for key sporting events, such legislation will also continue to be a focus for controversy and further litigation.

Bibliography

• Agger G Jensen F J., The Aesthetics of Television (AUP, Aalborg, Denmark, (2001))

• Barker C., Television, Globalisation and Cultural Identities (Open University Press, Buckingham, (1999))

• Blain N, Boyle R, O’Donnell, Sport and National Identity in the European Media (LUP, Leicester, UK, (1993))

• Craufurd Smith R and Bottcher B., Football and Fundamental Rights: Regulating Access to Major Sporting Events on Television (European Public Law, March, (2002))

• Coakley J., Sport in Society: Issues and Controversies (Boston, College Publishing, (1990))

• Field W., Free For All: The Relationship Between Sport and Free-To-AirTelevision (Sport Business International, (2003))

• Smith R., Broadcasting Law and Fundamental Rights (OUP, Oxford, (1997))

• Whannel G., Fields in Vision: Television Sport and Cultural Transformation (Routledge, London, New York, (1992))

•   Accessed on 29/03/05

•  Accessed on 28/03/05

•  Accessed on 30/03/05

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