The matter in dispute in Football Association v QC Leisure & Others  EWHC 44 (Ch) was the possible anticompetitive effect of contracts between the Football Association (FA) and foreign broadcasters for the broadcasting of Premier League football matches.
On behalf of the FA, each Premier League football match is filmed and modified (for example, by the inclusion of commentaries) to create “the World Feed”. The FA enters into agreements with foreign broadcasters to give them the right to show the live broadcast of the World Feed. Specifically, the broadcast consists of the satellite transmission of an encrypted signal that users can decode via decoder cards supplied by the licensed broadcasters in their specific territories. The agreements between the FA and each national broadcaster impose an obligation on the broadcaster who undertakes “to procure that no device is knowingly authorised or enabled by or with their authority or that of their sub-licensees, distributors, agents, employees etc so as to permit anyone to view in an intelligible form any such transmission outside their particular licensed territory”. The Defendants imported non-UK decoder cards and supplied them to public houses. The cards were allegedly sourced through subterfuge from Greece and other EU and non-EU countries. The FA sued the Defendants for importation of copyright circumvention devices contrary to Sections 298 and 299 of the Copyright Designs & Patents Act 1988.
The main defence offered was that the contract between the FA and foreign broadcasters contravened Article 81 of the EC Treaty, which prohibits agreements between undertakings that may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the Common Market. The FA relied on Coditel SA, Compagnie Générale pour la Diffusion de la Télévision v Ciné-Vog Films SA  (C-262/81 ECR 3381) to affirm that the grant of exclusive licences limited to a particular territory does not, per se, infringe Article 81, ”even if they confer absolute territorial protection and might prevent transmission into a neighbouring state”.
The FA sought to strike out the Article 81 defence or, alternatively, to stay the competition aspects of the case. In dismissing the FA’s argument, the judge accepted the Defendants’ submission that the interpretation by the FA of Coditel had not been rigorous. The judge specified that the dispute was not merely about the grant of an exclusive right, but concerned the imposition of detailed obligations onto the Defendants who, ultimately, were required to prevent use of the decoder cards outside their licensed territory. Reliance on Coditel, which had been decided prior to various legislative enactments in the industry, was therefore insufficient to prove that the Defendants ’ argument had no real prospect of success. As a result, the judge confirmed that this will be a matter to be decided at trial.
This case will be of interest to rights holders and broadcasters as it demonstrates the willingness of the English courts to entertain defences that call into question the enforceability of over-arching broadcasting agreements. Whether or not such defences are ultimately successful will depend on an extensive analysis of the legal and economic impact of the clauses. The practical impact may be to dissuade rights holders and broadcasters from asserting rights against importers.