Asser Institute and IViR (2014)
|Asser Institute and IVIR (2014)|
|Title:||Study on Sports Organisers' Rights in the European Union|
|Author(s):||T.M.C. Asser Instituut/Asser International Sports Law Centre and the Institute for Information Law - University of Amsterdam|
|Citation:||T.M.C. Asser Instituut/Asser International Sports Law Centre and the Institute for Information Law - University of Amsterdam (2014) Study on Sports Organisers' Rights in the European Union, EAC/18/2012|
|Link(s):||Definitive , Open Access|
|Key Related Studies:|
|About the Data|
|Data Description:||This study combines traditional legal research methods (desk research, literature review, document analysis), with an approach based on “field work” and data collection (qualitative analysis). A three-part questionnaire was drafted, mirroring the three core research questions that the study covers. The first part of the questionnaire concerned the existence, nature, and scope of sports organisers’ rights. The second part focused on the licensing practices related to media rights and image rights. The third was dedicated to the potential for licensing exploitation rights to gambling operators. The questionnaire was administered to 28 national legal experts (lawyers and legal scholars), carefully selected on the basis of their expertise, from the long-established lists of national correspondents collaborating with the research partners. Experts' workshops were also held.|
|Data Type:||Primary and Secondary data|
|Secondary Data Sources:|
|Data Collection Methods:|
|Data Analysis Methods:|
|Cross Country Study?:||Yes|
|Government or policy study?:||Yes|
|Time Period(s) of Collection:||
The legal protection of rights to sporting events (”sports organisers' rights”) is a contentious issue. While in recent years distinct aspects of the problem have been addressed by legislatures and courts, both at the national and at the European level, a great deal of legal uncertainty persists. Divergent views on the appropriateness, form and scope of such legal protection exist among stakeholders and other concerned parties, reflecting the complex nature and multiple functions of sports in modern society. The universe of sports and media is a complex network of social and commercial relationships with a variety of stakeholders, each one of whom can claim rights or specific interests in the value chain of organizing and exploiting sports events, such as clubs, leagues, athletes, federations, fans, media content providers, sponsors, owners of sport facilities, sports betting operators and news media.
Consequently, the question of protecting sports events is by no means a one-dimensional legal issue, and should be framed in a broader socio-economic context. On the one hand, professional sport represents a large and fast-growing sector of the European economy – and in no small measure this is due to the commercial significance of sports media rights. On the other hand, sports are widely regarded as playing a pivotal role as a “social cohesive”, an agent of communal, and conveyor of moral, values. This helps explain why major sports events qualify in various Member States as “events of major importance” for society, subject to special media rules mitigating exclusive rights of broadcasters to guarantee viewers’ access to these events via free-to-air television.
The general objective of this study is to examine and critically assess a number of the most pressing questions of substantive law relating to the existence and exercise of sports organisers' rights in the EU. The specific objectives of the study are: To map the legal framework applicable to the origin and ownership of sports organisers' rights in the 28 Member States; To analyse the nature and scope of sports organisers' rights with regard to licensing practices in the field of the media, taking into account relevant EU law provisions; To examine the possibility of establishing licensing practices beyond the media field, notably in the area of gambling and betting; To provide recommendations on the opportunity of EU action to address any problem that may be identified in the above mentioned areas of analysis.
Main Results of the Study
- The rights and interests of sports organisers are generally well safeguarded at the substantive legal level. The “house right” gives sports events organisers and clubs (and indirectly the sports federations) a right to exclude unauthorized media from the venue, and thereby creates leverage for the event organisers to negotiate exclusive contracts regarding media coverage. In practice, these contracts may or may not provide for complete or partial transfer(s) to the sports organisers of the copyrights and neighbouring rights in the audiovisual recording and transmission of the event. Sports events organisers or their federations may, alternatively, elect to produce and distribute media coverage of the sports events themselves. Either way, the combination of house right, media contract(s), and intellectual property protection of the audiovisual recording and broadcast effectively allows the sports event organisers to enjoy complete ownership and/or control over the audiovisual rights in the sports events.
- The integrity and financial benefits of a right to consent to bets can only be fully achieved when it is carefully managed by a national regulatory authority that:
1. actively prosecutes illegal betting services (including the offering of sports bets by licensed operators without the sports organisers’ consent); 2. monitors the commercial exploitation of the right to consent to bets to prevent discriminatory or anti-competitive marketing conditions; 3. provides for an ex post mechanism for complaint handling and dispute resolution; 4. has the power to conduct on-going monitoring of the parties’ compliance with the mutual rights and obligations contained in the contractual agreements.
- The right of short news reporting is an important element of the EU legal order safeguarding the right of broadcasters to have access to “events of high interest to the public”, such as important sports events, which are subject to exclusive broadcasting rights. However, the way this right is currently framed, allowing Member States the option of either mandating access to the transmitting broadcaster’s signals, or requiring direct access to the venue where the event takes place, has resulted in some differences in implementation by the Member States (i.e. on the duration of the short news reporting).
- The comparative analysis of EU and national decisional practice reveals that for the most part the NCAs have replicated the heavy-handed remedy package designed by the European Commission. The “no single buyer” obligation, a remedy that was exceptionally imposed by the Commission in FAPL, is increasingly being emulated at the national level. Only with regard to the duration of exclusivity, more and more NCAs are demonstrating a readiness for a more flexible approach (i.e. by accepting exclusive rights contracts exceeding three years).
Policy Implications as Stated By Author
The EU should encourage Member States to address the generally observed lack of legal certainty as regards sports sponsorship by gambling operators in the context of their national gambling advertising regulations. It is recommended that sponsorship-related issues are included in the European Commission’s upcoming “Recommendation on responsible gambling advertising”. Other additional courses of action ought to be considered, in particular to facilitate enforcement co-operation between different national regulatory authorities concerning cross-border advertising of unauthorized gambling services.
Regarding cross-border sports events, further attention should be paid to the use of technological tools that may offer pragmatic solutions (e.g. virtual advertising). In any event, organisers of such events must respect national legislations. In case they induce participants in their events to infringe national gambling advertising and/or breach personal sponsorship contracts, they should arguably be found liable and not the participant that is faced with a dilemma: respect the regulations of the sports organiser (that typically require participants to comply with the organisers’ sponsorship arrangements) or respect national regulations and personal sponsorship contracts with the risk of being eliminated from the competition.
Coverage of Study
|Level of aggregation:||Legal experts|
|Period of material under study:||2012-2013|