Listed Events and free-to-air TV: have the Aussies got anything right that we haven’t?

Published 19 October 2012 By: Stephen Ridgway, Alex Haffner

Listed Events and free-to-air TV: have the Aussies got anything right that we haven’t?

The UK has long embraced the idea that certain sporting events are worthy of special protection and should be broadcast for the benefit of the whole population on free-to-air (FTA) television.

Having had cause recently to look at the Australian “anti-siphoning” legislation governing those events protected for FTA broadcast, we were struck by certain key differences in their approach compared with the UK.  

The UK Government’s stated position is to look again at our own listed events regime early next year.  The Australian Government conducted its own review two years ago and promised to bring the local regime into the digital age.  Legislative changes currently going through the Australian Parliament are putting that promise into effect.  What, if any, lessons might the UK learn from “down under”?

How does the UK listed events regime work?

The relevant legislation is the Broadcasting Act 1996, which defines "qualifying channels" as those which are free of charge and accessible by at least 95 per cent of the population.  At the moment only BBC, ITV, C4 and Five meet these requirements.  However, the arrival of digital switchover and freeing up of spectrum capacity means there is a likelihood that soon other FTA channels will do so too.

The protected events are split into two categories:

  1. The "A" list: those for which live rights exist and which can only be shown by a qualifying channel.  These include the Olympic Games, the English and Scottish FA Cup finals, Rugby League Challenge Cup final, the Rugby World Cup final, the Wimbledon tennis finals, the Grand National and the Derby, and all matches in both football World Cups and European Championships finals.
  2. The "B" list: events which can be broadcast live by anyone, provided adequate provision has been made for highlights on a qualifying channel.  These include cricket Test matches played in the UK, certain cricket World Cup matches, all matches in the Rugby World Cup and at Wimbledon not in Group A, Six Nations rugby matches involving the home nations, the Ryder Cup and Open Golf Championship, and the Commonwealth Games.

Of course, sports bodies are free to decide that an event should be on FTA TV even if it is not on the A list.  For example, the Open Golf and Wimbledon both appear on the BBC.

The last Government review

The UK listed events regime has been reviewed periodically.  Unsurprisingly given the impact of the regime on sports media rights values (narrowing the list of potential bidders clearly places downward pressure on competition for the rights), each review has attracted great debate.

The last such review (in 2009) was no exception.  David Davies, the former FA Executive Director and BBC broadcaster, was asked by the then Labour administration to chair an "independent" Advisory Panel comprising luminaries from the worlds of sport, broadcasting and academia.

The Panel's findings were made without commissioning any independent experts to look at the economic impact of any proposed changes to the list.  Nevertheless, its main recommendations were that certain events be delisted (e.g. the Winter Olympics) and others reclassified (Wales matches in the Six Nations in respect of live coverage in Wales and, perhaps most controversially, home Ashes cricket Test matches be moved from the B list to the A list).

As you would imagine, publication of the Panel's report triggered a huge amount of criticism.  Many in the industry suspected the heavy hand of government in the Panel's deliberations in view of the vote- winning potential of bringing cricket Test matches back to FTA television (from where Sky had wrestled them when C4 decided it could no longer afford live coverage).

In the event, once he had received representations from those affected by the changes, the then Labour Secretary of State recognised there was inadequate time and, more importantly, evidence on which to justify them.  He therefore decided to defer any decision to a future (post-election) date.

Australia's anti-siphoning legislation

The Australian listed events regime works via a licence condition on pay-TV broadcasters that prevents them buying the rights to certain sports events before FTA broadcasters have done so.  It therefore expressly envisages that rights to certain events might be shared between free and pay-TV.  Events can also be delisted before they start on the say-so of the Minister, provided he/she is satisfied that FTA broadcasters have had a reasonable opportunity to buy the rights.

For protected events, the Australian regime is much more extensive than the UK – almost three times as many events are "listed".  For example, matches played in the domestic Aussie Rules and Rugby League Premierships (equivalent in local popularity to the football Premier League here) are included as are all the Golf Majors except the British Open (presumably because of the time difference).

At the same time, the Australian list is much more prescriptive.  When it comes to the football World Cup, only matches involving the Australian team are included along with the final.  This is the approach which UEFA and FIFA have long championed in European countries with listed events regimes.  Both have taken the UK to the European courts to argue that the inclusion of all the Euros and World Cup competitions in the A list is contrary to EU law, being a disproportionate interference with their (intellectual) property rights.  At first instance, the EU General Court dismissed their appeals, but both bodies have now gone to the European Court of Justice.

Regarding cricket under the Australian regime, all home Test ODIs and Twenty20 internationals are included.  A significant difference from the UK regime is that away Ashes Test matches played by the Australians in England are also included.

Under the changes being passed at the moment, Australia will move to the UK approach of having an A and a B list.  A list events must be shown live and in full and on an FTA broadcaster's main channel.  B list events must also be shown in full by an FTA broadcaster, but can premiere on one of its multi-channels and there can be a delay of up to four hours (the exact time delay is at the Minister's discretion for each event).  In part, this reflects Australia's geography and the fact it has different time zones.  It also shows they have thought carefully about how to ensure FTA is used to improve the level and quality of coverage of key sporting events.

The new legislation also extends the minimum time period during which the Minister can delist a protected event from 12 to 26 weeks (and 52 weeks with domestic Aussie Rules and Rugby League matches).

Implications for the UK?

Sports events still have an almost unique ability to capture the public imagination and bring together the whole family around their TV set (or an equivalent device).  Some balance has to be achieved between the public good and rights holders' commercial imperatives.  The key question is to what extent government should interfere in the sale of broadcast rights to ensure that balance is correctly struck.

Much as Sky and others would like to persuade it otherwise, it is unlikely the UK Government will abandon the listed events regime any time soon.  However, the 2013 review does provide it with a genuine opportunity to bring that regime up to date.

In our view that means taking some of the best bits of the new Australian regime.  We would recommend two.  First, it should look more closely at each "event" on the list to see whether it properly needs protecting and, where possible, focusing on the parts of the event (e.g. potentially only major tournament matches including all the home nations) which should and should not be on the list.  Second, it should consider in the context of a multi-channel digital environment, which channels should properly be able to be regarded as qualifying channels under the Broadcasting Act, with the right to show listed events.

At the same time, we would also caution against excessive government interference in the mechanics of the regime.  One noticeable aspect of the Australian model is the central role for the Minister in deciding how the rules are applied on a day-to-day basis.  Once those rules have been drawn up, in our view it should be left to sports bodies and broadcasters to adhere to them without having to plead their case each time to the Minister concerned.

Alex Haffner and Stephen Ridgway
Sports Group, SNR Denton

Author

Stephen Ridgway

Stephen Ridgway

Stephen is currently Head Counsel at Sky Sports, managing a team primarily responsible for Sky’s media rights arrangements with major sports rights holder including the Premier League, Football League, Formula 1, and the RFU.

Prior to moving in-house at Sky 4 years ago, Stephen qualified and worked for 7 years in the TMT team at Dentons, with a focus on the sports and media sector.

Alex Haffner

Alex Haffner

Alex is a Partner in the Commercial, Sports and IP Team at Fladgate LLP, specialising in the sports, technology and media sectors.

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