Premier League considering selling broadcast rights on pan-EU basis following ECJ ruling

Out-Law News | 21 Mar 2012 | 2:55 pm | 2 min. read

The rights to broadcast live English Premier League football matches could be sold on a pan-European basis following a ruling by the European Court of Justice (ECJ) last year, the Premier League's chief executive has said.

Currently the Premier League licences the right to broadcast live games in the UK to Sky and ESPN. The broadcasters pay significant sums to be allowed to show the games and the games are also filmed and packaged for foreign audiences. Broadcasters abroad pay to show those games.

However, in October the ECJ ruled that the Premier League, Sky or ESPN cannot stop foreign broadcasters selling their services to other EU countries. It said that doing so was a breach of EU competition laws. 

Richard Scudamore said that the Premier League is considering whether its next broadcast licensing deal should cover the right to show games across the whole of the EU as a result. He said the organisation had already held talks with broadcasters to assess their "attitudes and aptitudes for pan-European verses individual territory" rights, according to a report by news agency Bloomberg.

"There’s not a decision been made yet as to whether we’re going to do a domestic deal or not,” Scudamore said, according to the report. “One of the implications of the ECJ decision is that we are still working on whether we now actually sell the rights on a pan European basis.”

The ECJ had been ruling on the legitimacy of pub landlords using foreign satellite decoders to screen Premier League matches in the UK. Some UK pubs have chosen to install foreign satellite decoders in order to transmit matches shown by foreign broadcasters rather than pay Sky or ESPN. The Premier League has claimed that the activity infringes their copyright.

The ECJ ruled that pub owners can use foreign decoders to show live Premier League football under EU free trade laws, but that some of the material contained in the broadcasts was copyright protected. Whilst live sporting events themselves are not protected by copyright, broadcasts of them and film, sound recordings, graphics, music and other features included within a broadcast are. The ECJ said landlords were responsible for "communicating [the material] to the public" when they showed the broadcasts on screens in pubs. 

Since the ECJ's ruling the UK High Court has confirmed landlords can legitimately use the decoders to screen games, but only if they can obtain a clean feed of the games, do not broadcast the sound from the Premier League anthem, and do not charge customers entry to their bar.

However, copyright law expert Kim Walker of Pinsent Masons, the law firm behind Out-Law.com, has said that landlords would find it difficult to screen matches without infringing the Premier League's copyright. This is due the fact that broadcasters usually associate graphics, logos and music with their coverage of games.

Since the High Court's ruling Euroview Sport Limited, a company that provides foreign satellite decoder services, has withdrawn its service to landlords. The company posted a legal notice on its website that said it would alter its service in order to avoid infringing copyright.

Following the ECJ ruling in October James Sweeting, an intellectual property law specialist at Pinsent Masons, predicted that the Premier League could turn to pan-EU licensing of broadcast rights.

"Once existing licences expire, the Premier League will have to look again at its licensing structure and revenue model," he said. "This does not necessarily mean that the Premier League will lose revenue but will have to look at ways of circumventing any shortfall caused by this ruling. This could mean a pan-European licensing model."

Media reports have suggested that Al Jazeera could be willing to challenge for the right to screen Premier League games. Sky and ESPN's existing contract finishes at the end of the 2012/13 season with the Premier League likely to open the bidding process for the next deal between April and June this year, Scudamore said, according to the Bloomberg report.

"Ultimately whatever umbilical cord there might be as an ongoing working commercial relationship gets severed as the invitation to tender gets issued,” Scudamore said. "Once we’re in the process, there’s nothing [Sky] can do other than being the best bidder to win those rights."