Katrien Lefever

Access to premium content on mobile television platforms: The case of mobile sports

As broadcasting sports content has proved to be a popular strategy for driving the growth of the digital premium content marketplace in the past, mobile service operators aim to enter the sports rights market. However, as the markets for live sports broadcasting are still dominated by established broadcasters, mobile network operators are facing significant barriers to access premium content creating bottlenecks in the construction of business models. Therefore, content regulation is seen as essential for the development of mobile television platforms. This article aims to stress the strategic importance of content in the development of sustainable business models for mobile broadcasting services and will discuss the implications of bundling strategies and regulations for the viability of these emerging platforms.

Watching the Football Game: Broadcasting Rights for the European Digital Television Market

In Europe, heavy competition between broadcasters for sports broadcasting rights and consumer’s attention has raised policy questions concerning both competition and content issues. Exclusivity of sports broadcasting rights may foreclose new media markets and deprive the public access to major sports coverage. This interdisciplinary article is at the crossroad of media, economic, and regulatory studies, and it aims at providing a more holistic analysis of topical issues in the sports broadcasting rights industry, with particular focus on both upstream and downstream markets. It is argued that a concise regulatory framework is required to grant fair access to mediated sports in society.

The Public in Its Role as Citizen and Consumer

With regard to the broadcasting sector, a distinction is often made between the viewer as a citizen and the viewer as a consumer. The viewer as a consumer resides in the market-based domain. Its interests will be referred to in terms of economic goals, such as choice, price, quality of service and value for money. The viewer as a citizen resides in the public domain where free discussion are taken place and where a shared identity is created. In order to inform the citizens and to create an identity, citizens should have access for free to programmes having social, political and civic assets and values, such as news and sport.

Must-Offer Obligation

This chapter will take a look at the practice of imposing a must-offer obligation on dominant vertically integrated companies in order to foster competition in the pay-television market. The question whether the changing media landscape has had an impact on the way competition authorities have dealt with the public’s access to sports events when imposing a must-offer obligation will be answered by means of the following decisions: the Newscorp/Telepiu case and the BSkyB case. While the Newscorp/Telepiu case and the BSkyB case will serve to illustrate the wholesale must-offer obligation, the Telenet/Canal+ case will illustrate the retail must-offer obligation. Furthermore, the BSkyB case will be used as an example to indicate that a must-offer obligation can also be imposed in order to deal with general competition issues apart from merger situations. Although these different decisions deal with the parties’ market power in the markets of premium sports as well as movies channels, the following sections will only focus on the concerns expressed for the distribution of sports channels and sports broadcasting rights. Although different types of must-offer obligations could be imposed, for example obligations to grant access to infrastructure, networks or technology, this chapter focuses only on the must-offer obligation with regard to access to exclusive sports broadcasting rights and sports channels.

‘List of Major Events’ Mechanism

This chapter will discuss in depth the ‘list of major events’ mechanism, included in Article 14 of the AVMS Directive. The implementation of this Article in the different Member States will not be presented and analysed, but will only be touched upon when necessary. Section 14.1 will take a closer look at the origin and the philosophy of the ‘list of major events’ mechanism and will also discuss the criteria to designate events as being of major importance for society and the criteria to decide whether those events should be broadcast live. Section 14.2 will give an overview of a number of other constituent elements of this Article that are posing or could pose problems in the changing media landscape (e.g. ‘free-to-air television,’ ‘substantial proportion’). Section 14.3 will be structured around the problems of effective implementation of this mechanism.

Joint Selling Remedies Package

This chapter looks back at a decade of antitrust law decision-making in relation to the joint sale of exclusive sports broadcasting rights, more specifically competition concerns resulting from the behaviour of sellers of exclusive sports broadcasting rights. Primarily, three different joint selling decisions, particularly the UEFA Champions League case, the German Bundesliga case and the FA Premier League case, will be analysed with emphasis on the question of how the development of new media have had an impact on the way competition authorities are dealing with the public’s access to sports content when imposing remedies in these decisions. It will be examined whether these decisions have contributed to the public’s access to live sports coverage. Specifically, did the European Commission take into account the citizens’ right to information or did consumers’ interests prevail? Additionally, several national competition decisions will be touched upon in order to indicate how national competition authorities have fine-tuned the three landmark decisions in order to consider the public’s right to information.

Sports/Media Complex in the New Media Landscape

The professional sports industry is a complex micro economy consisting of a set of interdependent markets and actors. In other words, professional sports teams and organisations, the media and sponsorship constitutes a trinity from which each of the parties is able to drive substantial profit (Smart 2008, 7). In the past, the roles of the different stakeholders of the sports/media complex were clearly defined. However, the development and spread of new media and communication technologies have now changed the sports/media complex. Sports clubs tried to become media companies themselves by offering club channels, mobile content and websites to their fans. When discovering the opportunities of new media, sports clubs bypassed traditional media and reached out directly to their fans. Furthermore, the role of the fans/public in the sports/media complex has also been altered. In the past, they passively submitted themselves to linear broadcasts of sports events. Currently, the public, when having access to the Internet and digital cameras, become potential producers of sports content.

Article 10 of the European Convention on Human Rights and the Public’s Right to Information Regarding Sports Events

The European Court of Human Rights has considered the freedom of expression and the right to information, included in Article 10 of the European Convention on Human Rights, as an important foundation for the development of a democratic society and each individual. The European Court for Human Rights applies a broad definition of the notion “information,” particularly everything that can play an important role in the development of a democratic society. In this chapter, it will be analysed whether live and full sports coverage could be protected under Article 10 of the European Convention on Human Rights and whether only highlights of sports events or also live and full access to these events could fall under the scope of this Article. It will also be examined whether States have a positive obligation to intervene in order to ensure public’s access to live and full sports coverage. The analysis of Article 10 of the European Convention on Human Rights could be approached in different ways. It is important to realise that the objective of the analysis of Article 10 in this chapter is to underpin the assumption of this book and not to serve as a legal positivist analysis.

Competition Law: General Introduction

The European Commission has often recognised that live broadcasting rights of sports events constitute ‘vital input’ and ‘key sales drivers’ in the media sector. Hence, it comes as no surprise that those rights can be considered as must-haves for many media operators. As a result, sports broadcasting rights constitute one of the main factors that have driven economic growth in the sports sector. Therefore, the main issue in the area of sports broadcasting rights has been the question if and under what circumstances the sale, acquisition and exploitation of broadcasting rights are compatible with competition law. This chapter will start with an outline of the relevant competition rules for this research: the antitrust rules, the State aid rules and the merger regulation. This chapter will also describe the relevant markets with regard to the selling, buying and exploitation of sports broadcasting rights. The last section of this chapter will focus on the question whether competition authorities could pursue non-economic policy aims, such as the public’s right to information.

Specificity of Sport: The Important Role of Sport in Society

Sport is characterised by two dimensions: economic and societal. Over the years, the sports sector has become a fast-growing economic sector. However, sport is much more than big business. It has been recognised that sport has a significant social role to play in our society in bringing people together and contributing to social cohesion. Article 165 of the TFEU has officially recognised this specificity of sport. As a result, when the European institutions deal with the public’s right to information with regard to sports events, the societal role of sport can no longer be denied.