The football world was rocked last week with news that an influential advisor to the European Court of Justice backed arguments in favour of foreign satellite screenings. John Harrington reports on what it means for pubs.
What's the background?
The European Court of Justice (ECJ) is investigating the legality of foreign satellite football after the UK's High Court referred the appeal of Hampshire licensee Karen Murphy in 2008. Murphy, of the Red, White & Blue in Southsea, was appealing her conviction for screening Premier League football via Greek channel Nova Supersport.
The ECJ was also looking at civil action by the FA Premier League (FAPL) to stop foreign satellite suppliers importing foreign decoder cards into the UK. The case hinges on whether EU laws on freedom movement of goods between member countries permits the use of foreign satellite systems in UK pubs.
Before the ECJ makes its ruling, an advocate general (AG) — an influential legal advisor to the judges — gives a personal view of the arguments made. This opinion, from AG Juliane Kokott, was made public last week.
What did the AG say?
Kokott essentially backed the arguments of the foreign satellite suppliers and Murphy's team. The AG said use of the decoder cards could not be restricted to one territory as that would "partition the internal market" — and be contrary to the free movement of good principle. Selling broadcast rights exclusively to a certain country is "tantamount to profiting from the elimination of the internal market", Kokott added.
She also dismissed the copyright argument put forward by the FAPL by saying the free movement of goods principle is consistent with directives relating to copyright protection and conditional access.
That's not all. The AG said the foreign satellite system used by Murphy is not an "illicit" device. And she said it's "doubtful" that the Saturday afternoon "closed period" — used by the FAPL to argue against foreign satellites — actually protects attendance at football grounds.
Morning Advertiser legal editor Peter Coulson said: "It is too early to say what the eventual outcome will be, but this opinion is a major blow to the FAPL and Sky in seeking exclusive rights in the UK."
What impact does her opinion have?
It has no immediate impact on the legality of foreign satellite systems. The view is not binding on the ECJ and the judges will now consider their own verdict in "complete independence".
The ECJ's own ruling is expected later this year, perhaps within as little as three months.
A further hearing in the UK High Court will discuss how to incorporate the ruling. So there's still a long way to go yet.
Murphy's solicitor Paul Dixon, of Molesworths Bright Clegg, said he was "cautiously delighted" with the new opinion, but stressed that it is "not unheard of for the [ECJ] to have a different opinion from the AG."
Nevertheless, there's little doubt that Kokott's view is a massive boost for the pro-foreign satellite lobby.
OK, so what would happen if the view is backed by the ECJ and incorporated into UK law?
Purely hypothetical this, but one source close to the situation predicted two outcomes. Firstly, a host of broadcasters from across Europe could begin selling Premier League football freely in the UK, driving down the costs for pubs.
Secondly, it's possible that one broadcaster could try to buy screening rights across territories, although this would be hugely expensive and no doubt raise competition concerns. The FAPL could even decide not to sell its rights to other countries. Either way, the FAPL would undoubtedly take a hit on the value of its screening rights when they come up for re-negotiation, meaning less money for clubs and perhaps an end to those £50m transfer deals.
How did the FAPL react?
"If the European Commission wants to create a pan-European licensing model for sports, film and music then it must go through the proper consultative and legislative processes to change the law rather than attempting to force through legislative changes via the courts.
"The ECJ is there to enforce the law, not to change it." Sky has yet to respond.
What happens to existing action against pubs?
It continues, according to Media Protection Services (MPS), which investigates screenings on behalf of the FAPL. MPS said licensees at around 100 pubs are to be included in the latest tranche of prosecutions, with "significantly more to follow".
MPS managing director Ray Hoskin told the Morning Advertiser that they are continuing to investigate cases of foreign satellite screenings. "We don't mind if they are from the EU or not. We submit findings to solicitors and they decide if they will prosecute or not. We will just bash on in the same way."
Hoskin said there "are literally hundreds of cards being switched off" at source by foreign broadcasters such as Sky Italia, Sky Deutschland and Albania-based Tring.
Nevertheless, one foreign satellite supplier told the Morning Advertiser that he expected to see a rush in sales of the systems after the AG revealed her opinion.
Comment: Kate Nicholls, strategic affairs director, Association of Licensed Multiple Retailers
"We need to let our members know that this is only the start of the process and not a green light. The final verdict could be six to nine months away, and the UK law still stands.
"It doesn't overturn the Murphy case and licensees could still be liable for prosecution if they use foreign satellite systems.
"The AG's comments do not clarify anything but it does leave a glimmer of hope for licensees.
"It's a whole new ball game now because it has opened the potential for a better deal for pubs."