No last orders for Sky as sporting stranglehold remains

Will Durnan gets behind the spin of the recent European Court of Justice decision on Premier League football – and analyses the implications of the verdict for sports viewers in the UK

As the break for the Euro 2012 qualifiers ends and talk of Rooney’s red, Silva’s sublimity and Ramsey’s resurgence subsides, attention turns to this weekend’s return of the Premier League.

Whilst football fans up and down the country were enjoying a drink down the local in front their national teams of a Friday evening, plucky Portsmouth publican Karen Murphy was celebrating a legal victory which, it has been argued, could change the way they watch their clubs of a Saturday afternoon.

For those of you not familiar with the battle, Murphy was prosecuted in 2008 for using a Greek satellite decoder to show live Premier League action at her Red, White and Blue pub. The landlady’s attempts to avoid paying Sky £480 a month for the coverage led to her forking out almost £8,000 in fines and costs.

She saw this as contrary to the European Union’s freedom to provide services and last week the European Court of Justice (ECJ) delivered a ruling (pdf) that appeared to agree.

This resulted in journalists descending on the South Coast to watch the interviewee du jour proudly pour a pint, Murphy declaring:

“I should be able to go out, as with any other commodity, and choose to buy from wherever I like.”

…thus ignoring the irony the beer in her hand would be limited by government-imposed restrictions were she to try to make a similar cut-price purchase from overseas. The hacks penned cliché-ridden articles waxing lyrical on this triumphant victory for the little man, or indeed woman. All this left me sick as a parrot, for the opinion of the ECJ was far less clear cut.

The ECJ said national laws prohibiting the use of decoders were contrary to EU law and live football itself could not be considered to be “works” protected by copyright. However, many other elements of the broadcast are covered, including highlights, music and graphics. Potentially, the Premier League can simply add a half-second animation before replays, perhaps of a roaring lion, and licensees who have signed up to a discounted foreign subscription will once again find their names on a court summons.

Despite comparisons in the press to that most famous biblical triumph of the underdog, this judgement essentially serves as a pre-fight warning from a doctor for Goliath to wear a helmet. Given the Premier League has proved cannier than a tin of beans when it comes to protecting its financial interests, this will no doubt serve to be advice they heed.

The copyright issues only affect public screening, so in theory armchair supporters could still take out a TV contract from abroad, but the initial outlay on the appropriate equipment can be expensive and as rights are next due to be renewed in 2013 there may be no return on such an investment.

Since the ECJ verdict the BBC has announced a 15% cut to its sports budget, a decision which could have a far greater impact on availability to the ordinary spectator than proceedings in Luxembourg. Cricket fans in particular are likely to find this news disappointing. The sport is currently the most prominent in the UK not to feature a single minute of live action on terrestrial television this year, with the Indian Premier League on ITV4 being the only free-to-air coverage.

As Shamik Das wrote on these pages last April:

“In every other Test-playing country some home international matches are broadcast live on free-to-air TV. In Britain, the last time a Test was broadcast live on free-to-air was the final Test of the 2005 Ashes; the last one day international was the 1999 World Cup Final.”

For supporters already aggrieved at sports minister Hugh Robertson’s decision last year to defer until 2013 a verdict on whether Ashes Test Matches would be guaranteed free-to-air coverage, this comes as another blow. Questions remain over whether the recent successes of the England team can be repeated in years to come if young players have such limited opportunity to watch their idols.

Perhaps due to the lack of a buxom brunette poster girl this story has slipped under the radar.

Shareholders at Sky it seems can sleep soundly in their beds, safe in the knowledge their high price counsel now have a way to prevent prized sporting rights from being undercut internationally as well as reduced competition for these assets domestically. One can only hope Murphy at least asked the company’s news crew to pay for their drinks.

See also:

• Spanish and Italian strikes show the growth in sporting socialism – Rich Hook, August 27th 2011

• Celebrating the influence of player unions in US sport – Ruwan Subasinghe, March 14th 2011

• Lessons from the NFL: There is a better way of running our football clubs – Martin Tiedemann, February 6th 2011

• 2018 may be lost, but PM can still deliver a brighter future for school sport – Shamik Das, December 2nd 2010

• Tories plan to slash free-to-air TV sports list – Shamik Das, April 8th 2010