Pub’s Premiership Battle Goes To Extra Time

7th Feb 2011

Puns and clichés abound at the moment concerning a development in Karen Murphy’s longrunning battle with the FA Premier League over the screening of football in her pub.  Why should we be any different?

Mrs Murphy, who runs the Red White & Blue pub in Portsmouth, is saving thousands by using a Greek decoder and subscription for to screen the FA Premier League, the charges in Greece being much lower than in the UK.  Then there’s the added bonus of being able to screen Premier League matches kicking off at 3pm on a Saturday, something that is strictly verboten in the UK thanks to a longstanding arrangement between the broadcasters and the football authorities, who fear the impact on attendances.

Mrs Murphy, along with companies specialising in importing foreign decoders from elsewhere in the EU and various other publicans, found herself facing legal action.  Despite losing in the early rounds she has been undaunted and on Thursday found support in European Court of Justice from the Advocate-General, Professor Dr Kokott, who is of the view that the prohibition of the use of subscriptions purchased in other EU states is an unjustified partition of the single market for services.

Now, before you scrap your Sky box and ship a new device in from Greece, be warned that Dr Kokott’s opinion is just that.  It just so happens that the ECJ follows the AG’s opinion in about 80% of cases, but more cynical observers will be forgiven for noting that big corporates tend to find greater support amongst the presiding judges.

The FA Premier League has reacted with predictable defiance. “Kokott’s opinion is not compatible with the existing body of EU case law and would damage the interests of broadcasters and viewers of Premier League football across the EU”, it stated.  “If her opinion were to be reflected in the ECJ’s judgment, it would prevent rights holders across Europe from marketing their rights in a way which meets demand from broadcasters whose clear preference is to acquire, and pay for, exclusive rights within their own territory only and to use those rights to create services which satisfy the cultural preferences of their viewers within that territory.”

And of course the fact that broadcasters will pay far more for exclusivity has nothing to do with it whatsoever.  And as to the cultural preferences of the viewers, there doesn’t appear to be any evidence cited that football followers would object to a game being shown live at 3:00pm on a Saturday.

“The ECJ is there to enforce the law, not change it” says the FA Premier League.  Wrong.  The ECJ is there to interpret the law in response to questions passed to it from national courts.  It is the national court’s role to find for one party or the other.

There are many interesting questions in here for us to muse over.  For example, when building a business based on franchising or licensing, could you face a challenge that you are effectively partitioning the internal market when granting exclusive rights in other states?  And when precisely does such a partition become justified?

It’s interesting that the FA Premier League, whilst tolerating a tidal wave of football talent from beyond the boundaries of the EU, will nevertheless carve up the world to suit itself.  Professor Dr Kokott’s cogently argued 250-paragraph opinion provides serious food for thought.  But you have to ask yourself: if upheld, is this really the end of the world as we know it?  After all, just how many people are going to go to the trouble of importing decoders and taking out subscriptions to get around this issue?  They are still going to end up watching Greek television.  And if the end result is that prices to the customer (be that customer commercial or domestic) become more even across the EU, is that such a bad thing?

Sky, meanwhile, is keeping a discrete silence and given its recent travails, that might not be a bad thing.  Professor Dr Kokott, is one of Europe’s leading lawyers and a specialist in human rights.  She is also the mother of six and a real force to be reckoned with.

4 February 2011