FIFA and UEFA lose ‘Listed Events Challenge’

Published 07 August 2013

World Cup England Jersey

In follow up to Sheridans’ Sport Group Associate Tom Burrow’s article on the Advocate General’s Opinion in December 2012, Andrew Nixon and Morris Bentata examine the impact of the decision, and the possibility of the UK government expanding its list of protected events to include FIFA World Cup and UEFA European Championships qualifying matches.

 

The original challenge and the General Court’s ruling

FIFA and UEFA jointly challenged the European Commission’s decision to approve the listed events policies of the UK and Belgian governments. The challenge was premised on the basis that the decision unfairly excluded non free-to-air broadcasters from bidding for exclusive rights to FIFA World Cup and UEFA European Championship matches.  The governing bodies argued that the events must be regarded as divisible into different matches, or events, not all of which are of national or public importance (such as group stage matches not involving the member state’s national teams).

The General Court dismissed the challenge in February 2011, ruling that the European Commission’s decision was compatible with EU Law. The General Court endorsed the European Commission ruling that the list of protected events complied with the EU Television without Frontiers Directive.

 

FIFA and UEFA’s appeal

FIFA and UEFA appealed the decision of the General Court to the Court of Justice for the European Union (CJEU). As explained in Tom Burrow’s article, the decision was considered by Advocate General Jaakinen, who delivered an Opinion in December 2012 which advised CJEU that the European Commission’s ruling was compliant and that it had acted in accordance with its power to objectively review the Member States’ lists. As was widely anticipated, CJEU endorsed the Advocate General’s Opinion and ordered costs against FIFA and UEFA. There are no further routes of appeal for either governing body.

 

Consequences of the decision

The immediate consequences are that pay television broadcasters will remain effectively unable to acquire exclusive rights for any matches of the FIFA World Cup and the UEFA European Championships, the effect of which is that the governing bodies will remain unable to exploit their media rights in a fully competitive UK broadcast market. To put it into context, through a joint bidding process, the BBC and ITV paid £196million for 2010 and 2014 FIFA World Cups, and a further £50million for UEFA Euro 2012. If broadcasters such as BSKYB and BT were entitled to bid too, the value of those rights would clearly be significantly higher. Both UEFA and FIFA will therefore have continue to negotiate solely with free to air broadcasters in relation to the 2018 and 2022 FIFA World Cups, as well as UEFA Euro 2016, all three of which had been carved out of the most recent sales cycle pending the final decision.

The longer term consequences are more difficult to predict. In 2009, the UK government undertook a review of the UK’s listed events and that review included proposals that all Home Nation qualifying matches for the  FIFA World Cup and UEFA European Championships be listed too. That 2009 review was ultimately deferred until after digital switchover and accordingly may be expected to reappear on the UK political landscape soon. Depending on its political will, this confirmation of the breadth of discretion of member state governments in relation to the listing of events, may serve to embolden the UK government in seeking to further expand the events which are listed in the UK.

However, the defeat for the governing bodies was not entirely comprehensive.  FIFA and UEFA will take comfort from the fact that CJEU did not agree with the General Court’s determination that a major football tournament could reasonably be defined as a single event, rather it is an event which is (in principle) capable of being divided into different events, matches and stages. This endorsement, which is effectively obiter as it had no bearing on the outcome of the case, may make it easier for governing bodies to successfully argue in the future for its major events to be treated as a series of separate events (i.e. such that only particular matches of its event are listed, rather than the overall event being listed as a single entity).

It is also potentially helpful that CJEU took the view (again, contrary to the General Court) that a member state which takes the decision to list all matches of a particular tournament must provide to the Commission reasons for its decision. It may therefore ultimately prove a challenge for the UK government to convince the Commission that an extension of the list to qualifying matches would not be contrary to EU law.

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