Can Legal Challenge be brought against the UK’s decision to list specific events under the Broadcasting Act?

Listed Events under the Broadcasting Act 1996

The Broadcasting Act 1996 provides the Secretary of State with the power to designate certain key sporting and other events as so called listed events.

Certain events are able to be listed under the Broadcasting Act 1996 if they are deemed to be of major importance to society.

In what respects will an event be deemed to be of major importance to society?

A sporting event will be deemed to be of major importance to society according to the following factors:

  • It should contain an element which serves to unite the nation

  • It should be a shared point on the national calendar

  • It should not solely be of interest to those who follow the sport

What is the purpose of the legislation?

Following an event being listed it must be shown on terrestrial television – i.e. television which is able to be accessed by everyone in the country without having to pay a subscription fee.

Many feel that certain sporting events have the ability to not only unite the nation but also to encourage people to participate in sport. With many countries throughout the world suffering with problems of obesity it is felt that making people aware of sporting contests and making them proud of the athletes involved in these contests will inspire them to take part in sport themselves.

Why would there be a legal challenge against any listing of events?

For the above reasons there seems to be many benefits of listing events so it is difficult to see where a potential legal challenge may come from. However, if you look at the point of view of the sports themselves you can see where a potential challenge may come from.

The World Cup

The World Cup is the premier tournament in world football. Happening every four years it is a footballing institution and often unites the citizens of England if the team is successful. Think of the money generated by pubs when able to show the games live – England qualifying and doing well in the World Cup means so much more for the economy and is an extremely lucrative tournament.

FIFA’s role in the World Cup

The World Cup is organised by the world governing body of football, FIFA, in conjunction with the Local Organising Committee (LOC) of the country holding the tournament. With the tournament being so popular it is extremely important to FIFA to maximize the potential revenues from the tournament through such things as ticket sales, merchandising etc.

Sale of Television Rights

The sale of the television rights is one of the best ways in which FIFA can generate revenues from the World Cup. The rights will not only be sold to the 32 countries participating in the tournament but also to virtually every country around the world.

However, if the UK lists the entire World Cup as a listed event this will greatly reduce the potential revenues to be earned.

Television Rights sold to terrestrial broadcasters rather than subscription broadcasters

Under the provisions of the Broadcasting Act as listed events must be shown on terrestrial television this means that FIFA must offer them to terrestrial broadcasters meaning that they cannot charge vast sums which they would be able to if the subscription channels could enter into a bidding war.

FIFA therefore may wish to bring a claim against the UK in listing the entire event in this manner as they believe the net is cast too wide and was not the intention of the legislation.

On what basis would FIFA bring their claim?

It is likely that a claim would be brought along the following grounds:

  • That not all World Cup matches are of major importance to society

  • That other competitions of a similar high profile nature are not protected as listed events

Matches not of major importance to society

It would be extremely difficult for FIFA to bring a claim for the matches of the England national team in the World Cup to be a listed event as they would clearly be of major importance to society. However, FIFA may be able to bring a claim that the other matches of the tournament not involving England would not fit within this definition.

For example a World Cup first round match involving the likes of France or Italy may not contain an element which unites the nation and would presumably only be of interest to those who follow the sport.

Equivalent competitions not listed as protected events

Furthermore the football matches of both the lucrative European Champions League and the Football Association Premier League are not protected as listed events even when they involve English teams whereas World Cup matches involving teams from other countries are.

What is the position in other countries?

As the listed event regulations under the Broadcasting Act have been put into effect in England and Wales due to it being part of a European Directive it follows that other European Union Member States have adopted similar legislation.

In other European Union Member States they have only listed the semi-finals and final if the team of that country is participating in these matches as listed events. This position sits well with FIFA as it enables them to sell the rights for all of the other matches in the tournament.

If FIFA was to bring a claim would it be successful?

FIFA brought a claim against Belgium in the European Courts in relation to the listing of all 64 matches of the 2006 World Cup as listed events and UEFA have brought a claim against the UK for listing all Euro 2008 matches as protected – neither country were participating in the respective tournaments.

The European Commission found in favour of the governments in both cases. Governments are trying to protect the consumers in light of the increased subscription bases televised sports market and it would be extremely unlikely for the European Commission to make a decision which would be seen to be detrimental to the rights of consumers regardless of the effects that this may have on the revenues for the sporting governing bodies.