Sports Law

Second edition

by Mark James

Updates for Chapter 13: The fan as consumer and the commercial exploitation of sport

These updates were last reviewed in July 2013

Updates and Amplifications

13.3.3 Protected events of national importance​

The Court of Justice of the European Union has confirmed that it is for a Member State (MS) alone to determine whether an event is of major national importance and that the role of the Commission is simply to determine whether or not the MS has complied with EU law in coming to its decision Judgment in UEFA and FIFA v Commission Case C-201/11 P, C-204/11 P and C-205/11 P (press release with links to all relevant judgments and opinions). In respect of the FIFA and UEFA finals tournaments, it is not to be automatically assumed that these events are in their entirety of major national importance. Whereas it is easily justifiable that events involving the team representing the MS and the semi-finals and final of these events are of major national importance, reasons must be given by any MS seeking to protect the entire finals series. Although this had not occurred in this case, there was sufficient evidence to justify why Belgium sought to protect the whole of the FIFA finals tournament and the UK both the FIFA and UEFA tournaments.

13.3.4 Live streaming of subscription only events

In its ongoing attempt to prevent illegal broadcasts of live football matches, the FA Premier League (PL) has obtained a blocking order that requires the UK’s six main internet service providers (ISPs) to block, or at least impede, access by their customers to a website known as FirstRow Sports (FRS), The Football Association Premier League Ltd v British Sky Broadcasting and others [2013] EWHC 2058 (Ch). FRS facilitates access to live streams of television broadcasts hosted on unofficial and unlicensed user-generated content websites. Visitors to the FRS site are presented with a range of hyperlinks which when clicked open up a new window that takes the user to the event that they wish to view without paying for it. FRS generates income through selling advertising on its site, which attracts millions of users each month.

The court confirmed that copyright subsists in, and that PL was the owner of such copyrights, the films comprising the action replay sequences, the films comprising the Recorded World Feed (that was used by the streaming websites), the artistic works comprising the Premier League and Barclays logos which are incorporated into the films and the artistic works comprising various sets of on-screen graphics (para.12). These copyrights were breached by FRS as it was communicating them without authorisation to the public in the UK. Of particular importance was the court’s following a line of recent cases that has held that any retransmission of a terrestrial television broadcast via the internet will constitute a communication because it involves a specific technical means different from that of the original communication and an intervention which is different from that of the broadcasting organisation concerned (para.33). The court held that as this communication was to persons not entitled to view the broadcasts, as they were not subscribers to the official broadcaster’s platform, there was a communication to the public in the UK, and therefore the PL’s copyrights were infringed.

The PL had tried to establish who were the operators of FRS and to contact them in order to request them to cease and desist from making and facilitating unlawful broadcasts of its copyrighted material. As these attempts had failed, it was requesting that the court order the main ISPs (with their cooperation) block access to FRS’s site. The court held that this was an appropriate and proportionate measure to take to protect the PL’s copyright that imposed little burden upon the ISPs. Further, it was held that the interests of PL and the primary rights holders in enforcing their copyrights clearly outweighed the right to freedom of expression and information in Article 11 Charter of Fundamental Rights of the European Union: the users of the websites could still obtain the copyright works, but would have to access them through lawful sources, whilst the operators of the websites, who are profiting from infringement on a large scale, had no right to act unlawfully in this manner. Therefore, the blocking order was granted.