How the Bundesliga’s new “no single buyer” rule has increased the broadcasting revenue for German footballChristian Keidel, Alexander Engelhard
In July 2016, the German Football League (“DFL”) announced that during the 2015/2016 Bundesliga season almost 13 million spectators flocked to the stadiums on match days and that by those standards the Bundesliga remained the world's most attended national football league.1
While leading the ranks in terms of stadium attendance, up until recently the German league trailed behind other European leagues when it came to revenues earned from TV rights.2 Why? Arguably, one of the main reasons was that only one broadcaster had the expectation to be awarded the rights to show live Bundesliga matches in Germany, namely Sky Germany. When including its predecessor company Premiere, Sky Germany has been in control of the Bundesliga TV rights since 1991 with only short interruptions. This contrasts to the position in England, where the recent high-profile fight between Sky Sports and BT Sport for the rights to the Premier League led to a record-breaking GBP 5.14bn deal in 2015.3 In Spain, Telefonica and Mediapro battled over the TV rights for La Liga4 after the government passed new joint selling legislation in 2015.5 While in Italy, Sky Italia and Mediaset fought over the TV rights for Serie A.6
Things have changed this year after the introduction of Germany’s first “no single buyer” rule prior to this year’s tender of the Bundesliga TV rights for the period 2017/2018 until 2020/2021. This article gives a brief overview of the new Bundesliga TV rights deal, looking specifically at:
- The joint selling of Bundesliga TV rights under German and European competition law;
- The intervention by competition authorities;
- The introduction of a “no single buyer” rule in the most recent tender; and
- The implications of the new Bundesliga TV rights deal for broadcasters, fans and clubs.
Joint selling of Bundesliga TV rights under German and European competition law
The monopoly of Sky Germany to broadcast Bundesliga matches was not only problematic from a mere revenue perspective, it was also controversial when assessed in light of German and European competition law.
§ 1 of the German Act against Restraints of Competition (GWB) and Article 101 of the Treaty on the Functioning of the European Union (TFEU) prohibit agreements between undertakings aimed at or effectively preventing, restricting or distorting competition. In general, the joint selling of football TV rights prevents single clubs from negotiating and concluding individual rights deals with broadcasters and media rights agencies, and thus constitutes an anti-competitive behaviour. This has been confirmed by the European Commission in decisions concerning the joint selling of TV Rights of the UEFA Champions League7, the German Bundesliga8 and the English Premier League9.
Pursuant to German and European competition law, anti-competitive agreements can only be exempted from the general prohibition if the joint selling results in product improvements which benefit the consumer and for which the restraints of competition are indispensable (cf. § 2 GWB and Article 101 (3) TFEU). According to the aforementioned case law, this will be in the case if the joint selling of football TV rights provides media operators and football fans with more choices, leads to lower prices and stimulates greater innovation.
Intervention by competition authorities
In 2005, the European Commission required the DFL to accept certain commitments for the 2008 tender of the Bundesliga TV rights, including that the league rights were offered in a transparent, non-discriminatory procedure and that the duration of the rights agreements would not exceed three seasons.10
In addition, the German Federal Cartel Office (Bundeskartellamt) demanded certain commitments from the DFL, including providing the opportunity for football fans to choose between pay-TV live coverage and free-TV coverage of the matchday highlights. According to the Bundeskartellamt, this opportunity for football fans would be viable only if the highlights coverage was broadcast shortly after the games on matchday. Needless to say that the pay-TV broadcaster showing live games argued for a longer holdback period before free-TV coverage of matchday highlights could be shown (ideally after 10pm on a match day), hoping that more football fans would subscribe to pay-TV as a result. However, according to the Bundeskartellamt, offering football fans an attractive opportunity to switch to a free-TV highlights coverage before 8pm would prevent any paramount market position associated with live broadcasting rights from being abused by charging excessive pay-TV subscription fees.11
The situation ahead of the 2012 TV rights tender changed again, as now web-TV started to play a bigger role.12 The DFL had come up with several different packages (including mobile and web), as well as two alternative scenarios for free-TV highlights coverage.
In scenario 1, the first highlights coverage on matchday would be shown on TV shortly after the live games (before 8 pm). Scenario 2 provided for highlights coverage first via web-TV or mobile transmission, with the earliest TV coverage starting at 9:45 pm on matchday. The focus of the Bundeskartellamt was to make sure that even for smaller media content providers an attractive programme content existed and that a selection process based on clear, predetermined criteria applied. This would prevent an arbitrary decision by the DFL as to which provider should be awarded the rights.13 In the end, the live TV rights went to Sky Germany (with exception of the opening games of the 1st and 2nd leg of the season, the relegation games and the Supercup); while the public TV channels, ARD and ZDF, maintained their strong position regarding free-TV highlights coverage.
Introduction of a “no single buyer” rule in the most recent tender
Prior to this year’s tender, the DFL had decided that a new gameday on Monday nights would be introduced to create more flexibility in the schedule for teams playing UEFA club competitions. The decision has been opposed by many fans due to time and travel constraints during the week.14 Needless to say it also allowed the DFL to offer a new attractive rights package including live games on Mondays. Also, for the first time, the rights packages would be “technologically neutral”, meaning they were no longer structured according to distribution platforms (e. g. terrestrial, satellite, cable, IPTV, or web) to reflect today’s convergent media landscape.15
However, the main issue in this year’s tender was the implementation of Germany’s first “no single buyer” rule.16 In view of the rights packages proposed by the DFL, the Bundeskartellamt considered it adequate if in the future the live broadcasting rights for at least 30 out of the 306 Bundesliga matches were purchased by an alternative bidder.17
The Bundeskartellamt explained that it did not call for a stricter “no single buyer” rule because of the strong position of free-TV in Germany, with the early highlights coverage still available in the same form under DFL's new marketing model. Ultimately, the rule provided that if only one bidder purchased all five available “live-packages”, an additional tender would have to be held for a sixth “OTT”18 package, which included the live broadcasting and highlight rights to as many as 102 matches.19
On 9 June 2016, the DFL announced that the results of this year’s tender had exceeded the threshold of one billion Euros per season for the first time. This represented a revenue increase of 85 % compared to the previous tender.20 While Sky Germany again acquired the rights to show the majority of live Bundesliga matches on Saturday and Sunday, Discovery/Eurosport purchased (for the first time) the rights to show Friday and Monday matches as well as the relegation/play-off matches and the German Supercup. An additional tender for the OTT package was thus unnecessary, as it would only have been required if one single buyer had acquired all live packages.21
Implications for broadcasters, fans and clubs
Before the conclusion of the tender, Sky Germany had already announced that it would lodge a formal complaint with the Higher Regional Court in Düsseldorf (Oberlandesgericht) against the implementation of the “no single buyer” rule on the basis that it is unnecessary and a violation of competition law.22 Although we are still awaiting the decision, the authors think it is unlikely to affect the latest rights deal. Whether it affects future tenders will depend upon on the outcome of the proceedings.
For the fans of the Bundesliga the new deal has positives and negatives. On the one hand, there is a wide range of offers on how to follow matches and the introduction of a new Bundesliga matchday on Mondays. On the other, the new matchday is not supported by all fans23 and most of them will likely no longer be able to watch all games with the same provider after the live broadcasting rights have been divided between Sky Germany and Eurosport.
Naturally, the clubs were delighted about the outcome.24 Although there is still a huge gap to the Premier League, the new deal was conceived to be a step in the right direction to secure the competitiveness of German clubs when compared to their European counterparts.
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- Tags: Bundesliga | Competition Law | European Union | Football | German Act against Restraints of Competition (GWB) | German Federal Cartel Office | German Football League (DFL) | Germany | Governance | Joint Selling | La Liga | Premier League | Regulation | Serie A | Treaty on the Functioning of the European Union (TFEU)
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About the Author
Christian Keidel is a salary partner at Martens Lawyers in Munich, Germany. He joined Martens Lawyers as part of the initial spin-off team from Beiten Burkhardt, an international commercial law practice. Christian holds a legal degree from the University of Munich and has also studied at the University of Seville.
Alexander Engelhard is a lawyer at ARNECKE SIBETH DABELSTEIN, a German full service law firm with a team of dedicated, highly specialized lawyers who provide comprehensive legal advice to the sports, media and entertainment industry. Alexander focuses on dispute resolution, especially in sports-related cases. He also advises clients on the drafting of rules and contracts.