Landmark ECJ rulings in FIFA & UEFA 'Crown Jewels' cases.

Blackshaw, Ian

On 17 February, 2011, the General Court (formerly the Court of First Instance) (Seventh Chamber) of the European Court of Justice (ECJ) handed down two landmark Judgements in the so-called 'Crown Jewels' cases brought by FIFA, the World Governing Body of Football, and UEFA, the European Governing Body of Football.

At the heart of these cases is Article 3a of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23), as inserted by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending [Directive 89/552] (OJ 1997 L 202, p. 60), known, in short form and colloquially, as 'The Television Without Frontiers' Directive. Para. 1 of this Article provides as follows:

"1. Each Member State may take measures in accordance with Community law to ensure that broadcasters under its jurisdiction do not broadcast on an exclusive basis events which are regarded by that Member State as being of major importance for society in such a way as to deprive a substantial proportion of the public in that Member State of the possibility of following such events via live coverage or deferred coverage on free television. If it does so, the Member State concerned shall draw up a list of designated events, national or non-national, which it considers to be of major importance for society. It shall do so in a clear and transparent manner in due and effective time. In so doing the Member State concerned shall also determine whether these events should be available via whole or partial live coverage, or where necessary or appropriate for objective reasons in the public interest, whole or partial deferred coverage."

In the FIFA case, The United Kingdom and the Belgian Governments had decided to list all the FIFA World Cup matches as sporting events which they consider to be of "major importance for society" in the UK and Belgium and should, therefore, be shown on free-to-air television. This meant that these events could not exclusively sold to subscription and 'pay-per-view' channels. FIFA, not surprisingly, objected, claiming that this action was not compatible with EU Law.

In the UEFA case, the European Championship was in play in both countries.

FIFA and UEFA argued that the listing of these events, which are money-spinners for them, as 'free-to-air' under 'The Television Without Frontiers Directive' restricted their bargaining rights with TV companies for football content and were contrary to the EU Competition Rules.

The ECJ held that the World Cup and the European Championship were single sporting events and could not, therefore, be divided up (known, in the jargon, as 'siphoning off ') at the will of FIFA and UEFA. The Court also held that the Governmental measures, taken after full public consultation, to list these events as ones to be broadcast on 'free-to-air' television were proportionate and served the public interest; and, moreover, did not go any further than was necessary to attain that objective. In other words, they were not anti-competitive and, therefore, compatible with EU Law.

On the commercialisation and sale, especially 'collective selling', of Sports Broadcasting Rights, see 'TV Rights and Sport: Legal Aspects', I.S. Blackshaw, S. Cornelius and R.C.R. Siekmann (eds.), TMC Asser Press, The Hague, The Netherlands 2009.

So, the ECJ has struck an important blow for ordinary football fans, who wish to have unrestricted access to the broadcasting of the World Cup and the European Championship; and the Football Supporters' Federation were obviously "delighted" with the Court's Rulings.

On the other hand, FIFA and UEFA, not unnaturally, were "disappointed" with the Rulings, which they say they are carefully considering. They have two months in which to file an appeal to try to overturn them.

It will be interesting to see whether they do, in fact, appeal and, if so, what happens next!