In a non-binding opinion given on 3 February 2011, Advocate General Kokott of
the European Court of Justice ("ECJ") has advised that exclusive, territoryspecific
licences of the right to broadcast English Premier League football
matches are contrary to EU law.
The Football Association Premier League ("FAPL") represents the broadcasting
interests of the English Premier League clubs. FAPL grants broadcasters the
exclusive right to broadcast matches within a defined territory, usually their
country. These broadcasts are made by encrypted signals via satellite and the
broadcasters provide their customers with satellite decoder cards which enable
them to view the matches. Foreign broadcasters, in turn, are obliged to prevent
their broadcasts being viewed outside of their territory, as satellite footprints
naturally exceed territorial boundaries.
In reality, foreign decoder cards can be bought overseas at a cheaper rate than
the cost of a Sky/ESPN decoder card in the UK and then brought into the UK to
watch Premier League matches. Bars and pubs could, if the Attorney General's
opinion is adopted by the ECJ, save thousands of pounds in fees currently paid to
Sky and ESPN who share the exclusive broadcast rights in the UK.
FAPL, and other undertakings who were responsible for transmission of matches
in Greece, brought proceedings in the High Court against suppliers/importers of
equipment and decoder cards to pubs and bars in the UK, and against licensees
or operators of pubs. In a separate set of proceedings FAPL, through its agent
Media Protection Services Limited, brought criminal proceedings against a
landlady, Karen Murphy, who showed Premier League matches in her pub using
a Greek decoder card. Both cases were referred to the European Court of Justice
for clarification of certain aspects of European law which appear to conflict with
FAPL's right to grant exclusive, territory-specific licences.
Advocate General Kokott has advised that such territory-specific licence
agreements are contrary to EU law, as they are liable to prevent, restrict or distort
competition. In reaching her decision, Advocate General Kokott emphasised that
the current licensing model imposes a serious restriction of freedom to provide
services which has the effect of partitioning the internal market into quite separate
national markets. Further, Advocate General Kokott suggests that a partitioning of
the internal market for the reception of satellite broadcasts is not necessary in order to protect FAPL's rights, which lay in its commercial exploitation, as a fee is
still charged for each showing of the broadcast, albeit at a lower rate. Advocate
General Kokott went so far as to say that the marketing of broadcasting rights on
a territorially exclusive basis amounts to profiting from the elimination of the
This opinion will have a significant impact on both rights holders and consumers,
if it is adopted by the ECJ whose decision is expected later this year. FAPL has
responded to the Advocate General's opinion, saying that if the opinion is adopted
it "would damage the interests of broadcasters and viewers of Premier League
football across the EU". It would mean consumers would be able to lawfully
purchase the cheapest decoder card showing these matches without fear of
prosecution. Indeed, if the opinion is followed by the ECJ, it is likely to have wider
implications for the licensing of intellectual property rights generally.
See: Football Association Premier League Ltd and Others v QC Leisure and
Others; and Karen Murphy v Media Protection Services Ltd, 2011.