On 27 April 2022, the Spanish Competition Authority (“CNMC”) issued three different reports to address the conditions proposed by the Spanish Football Federation (“RFEF”) that relate to certain broadcasting rights for national football championships.
In particular, the CNMC reports assess the following RFEF proposals:
- Marketing of the Copa del Rey's broadcasting rights in the EU and other European countries for seasons 2022/23, 2023/2024, 2024/25, and if applicable, 2025/26 Y 2026/27 (INF/DC/068/22);
- Marketing of the Supercopa’s broadcasting rights in Spain and Andorra for seasons 2022/23, 2023/2024, 2024/25 (INF/DC/069/22); and
- Marketing of the Supercopa’s broadcasting rights in the EU and other European countries 2022/23, 2023/2024, 2024/25, and if applicable, 2025/26 Y 2026/27 (INF/DC/070/22).
These reports are have been made pursuant to article 4 of the Royal Decree-Law 5/2015 - on urgent measures regarding the commercialisation of the exploitation rights of audio-visual content of professional football competitions- which requires the commercialisation operators to request CNMC to issue a report on the said rights trading conditions.
1. Latest regulation developments in Spain on the marketing of football broadcasting rights
In order to better understand the findings made by CNMC in its recent report on football broadcasting rights, a brief outline of the current legislation and recent developments has been provided. Until 2020, Article 4.4.f) of the Royal Decree-Law 5/2015 provided a maximum duration limit of three years for marketing contracts Before 2020, the duration of such contracts was of no concern to the CNMC, as the proposals were merely limited to comply with such a duration period. However, following 2020, the law was amended to outline that the duration of marketing contracts “shall be subject to EU competition rules”.
Importantly, the fact that the duration is subject to the competition rules would allow, where appropriate, a longer period of more than three years, if there were a justification within the meaning of 101.3 TFEU and 1.3 of the Spanish Competition Act. With that said, the CNMC has so far not considered that there exists a valid justification for extending the duration of the contracts any further, to a period of four or more seasons.
2. CNMC’s position
Following an analysis of the aforementioned reports, the CNMC has concluded that the proposals submitted by the RFEF do not comply with the requirements established in Royal Decree-Law 5/2015 (this is no surprise, given that the CNMC rejected up to five RFEF’s proposals in 2019) and has outlined some recommendations to modify the proposals in order to comply with such legal provisions, among others:
- Excluding any powers, reservations, or ownership of rights not attributed by Royal Decree-Law 5/2015;
- Elimination of RFEF’s discretion as regards certain relevant matters, such as the assessment of technical and professional requirements,
- Avoiding the imposition of obligations relating to advertising which are not covered by the law, which are unjustified and contrary to the principle of freedom to conduct a business.
Furthermore, the CNMC has reaffirmed its position in relation to the duration of the contracts, as it has recommended removing the option of four and/or five seasons in the marketing proposals of the Copa del Rey and Supercopa's broadcasting rights in the EU and other European countries (i.e., reports (i) and (iii)), as, according to the CNMC, this duration are more aligned with competition principles and rules.
In addressing this issue, the CNMC grounds its position on the most relevant European case law (i.e. UEFA, Bundesliga and Premier league), which set the maximum duration of contracts at 3 years or seasons, and on national precedents aligned with the Commission's decisions (i.e., AVS Mediapro).
Interestingly, in previous reports (INF/DC/116/21), the CNMC has also stated that, in the event of a possible change of criteria -which has not taken place so far- it would likely be in the opposite direction to that suggested by the RFEF, i.e., to demand contracts with an even shorter duration, with the aim of being more compatible with competition rules.
This change of criteria may be forthcoming shortly, as in the report on Marketing of the Supercopa's broadcasting rights in Spain and Andorra (i.e., Report (ii)), the CNMC has considered very favourably the duration limited only to three seasons but has, in fact, indicated that bids for a shorter period could have also been allowed.
It now remains to be seen if, despite the advice of the CNMC, RFEF's official tenders accept bids for three, four and five seasons, as La Liga’s did a few months ago.
In conclusion, we will have to be alert to future developments and possible potential changes in the CNMC's criteria regarding football broadcasting rights, which so far remains aligned with the EU's position.