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Brexit and EU law: Beyond the Premier League (Part 2). By Marine Montejo

Editor's note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an intern at the ASSER International Sports Law Centre. 

Part 2. EU competition law and sports funding

The first analysed impact of Brexit on sport was the one regarding EU internal market rules and free movement. However, all sport areas that are of interest to the European Union will be impacted by the result of the future Brexit negotiations. This second part of the blog will focus on EU competition law and the media sector as well as direct funding opportunities keeping in mind that if the UK reaches for an EEA type agreement competition law and state aid rules will remain applicable as much as the funding programs.  

A) EU competition law and the media sector

As for the internal market rules, EU competition law applies to sport as long as an economic activity appears to have an impact on the European market. In the field of sport this is particularly true for the media sector, a key source of economic revenue for professional sport. 

EU competition law

It should be stated from the beginning that the UK, even completely outside of the EU, will not escape EU competition law (articles 101 and 102 TFEU). Indeed, if there is an economic activity within the European market EU law will continue to apply. The application of EU competition law leads to a convergence with national competition rules and most of the decisions relating to sport will probably remain enforceable through UK national law provisions unless there is an important change in their interpretation or a complete shift in competition law policy leading to a change of these rules. 

The main impact for the UK regarding the applicability of EU competition law appears to be in the media sector. With regard to the collective selling of media rights, for the time being national provisions should maintain the system in force which is derived from the Commission’s decisional practice (Football Association Premier League for a British example). Collective selling of media rights is compatible with EU competition law if the selling procedure is organised in a transparent and non-discriminatory manner, the contractual exclusivity runs for no more than three years and the rights are sold in several packages. The “no-single buyer” clause that was first imposed upon the Premier League to avoid the risk of monopolisation given the specific structure of the British sport media market (and now also applied by the German competition authority for the Bundesliga rights) might be questioned. This clause, providing that all the rights should not be sold to a single broadcaster, combined with the possibilities offered by EU free movement and impressive marketing skills from the Football Association, has made the Premier League the most valuable football competition in the world (6.9 billion euros for 2016-2019). It is highly probable that the UK national competition authority will keep that clause and the obligations for all sport media rights unless there is a major shift in national competition law policy. Remaining or leaving, in any case EU competition law will have left an important imprint on the British sport media rights landscape.

Other media related questions

In relation to media rights, two more points are interesting. Firstly, the question concerning multi-territory licensing of media rights in sport may arise. Sport rights are sold on a territorial basis. One of the many reasons for it are linguistic borders. However, the ECJ concluded that territorial exclusivity agreements relating to the transmission (using satellite decoders from broadcast providers based on another Member State) of football matches were a breach of competition law and the free movement of provision of services (Football Association Premier League v QC Leisure and Karen Murphy v. Media Protection Services Limited, joined cases C-403/08 and C-429/08). This important judgement caused great despair among sport organisers but it gave the opportunity to consumers to access a broader list of sport media providers around the EU. Depending on the position of the UK towards the EU, this possibility may vanish in the future. This judgment is also important for EU protection of property rights. The Court held that sport events cannot be considered intellectual creations, and, as such, cannot be protected by copyright. However, a clear distinction was made between private residence watching and public screening. The latter could amount to copyright infringement if some part of the event can be considered as unique and original and are duly protected (i.e. songs, slow motion extracts, etc.). In that case, it is for the Members States to regulate such a protection, but the EU is also developing a specific protection at the European level. Sport rights holders are exposed to financial damages due to breach of intellectual property rights with high economic value. This is the case for media rights but also for sport merchandising. The enforcement of those rights is conjointly overlooked by the Commission for harmonization of national legislations as well as the European Union Intellectual property Office (EUIPO) and Europol. In a situation where cross-border piracy and counterfeiting is difficult to tackle alone, the UK might consider to secure some kind of cooperation with the EU on that matter.

Secondly, also concerning the sports media industry, albeit with less ties to competition law provisions, the Audiovisual Media Services Directive (better known as the “Television Without Frontiers directive”) might not be applied to the UK in the future or at least as it stands at the moment. This directive regulates cross-border television broadcasting and allows EU Member States to establish a list of sport events of major importance for society that are offered on subscription-free TV channels (article 14 of the directive). The protected events list is then transmitted to the Commission in order to check its compliance with EU law and published in the EU Official Journal. Members States are entitled to create such a list but may choose not to. The UK is amongst the Members States that choose to set up such a list. Consequently, the 1996 Broadcasting Act lists those events for the UK (for example the Olympic Games, the Wimbledon Tennis Finals, the FA Cup Final, or the FIFA World Cup Finals Tournament). The national law relies on the directive which means that after Brexit, if the UK wants to keep with that requirement it should integrate the list into its national law. In a country where the subscriptions for premium sports pay television are the most expensive in Europe, it is quite doubtful whether this is good news for the British consumer and that might be an incentive to maintain a similar system. The directive also provides for a system of mutual recognition meaning that a provider of an audiovisual media services is subject to the law of its country of origin. Another Member State cannot impose other requirements than the one provided for by the directive. This principle, in case of Brexit, will surely disappear which is a potential problem for sports broadcasters seated in the UK and engaged in cross-border activities.  

EU State aid policy

Public funding and financial support is often used in sport and is a highly sensitive issue. Infrastructure and individual sport clubs are the main beneficiaries of public funds, which can make them subject to EU State aid provisions (article 107 TFEU). The Commission has closely monitored the application of State aid law in the field of sport, drawing a big line between professional and grassroots sports subsidies. Financial support to professional clubs is sometimes found incompatible with EU law as it distorts competition. An exception to this is where the objectives pursued are non-economic (subsidies for young training centres have been considered compatible as the main goal is to meet education obligations). Subsidies to amateur clubs are less likely to constitute State aid as they are not pursuing an economic activity. For sport infrastructures, only the ones pursuing economic activities and in competition at the European level are likely to be subject to State aid rules. A consequence of a complete Brexit might end the application of EU State aid rules in the UK. Anyway, given the expected negative economic consequences related to Brexit, it is rather unlikely that British public authorities will have the financial capacity to intensively fund professional clubs and sports infrastructures even if it they would have the freedom to do so. 


B) The money: securing sports funding

Finally, since the entry into force of the Lisbon Treaty, the EU developed a more proactive policy in sport via funding opportunities. These are also going to be impacted by Brexit and adverse consequences will specifically target amateur sport.  

EU funding for sport

The introduction of article 165 TFEU allowed the EU to create a specific funding programme for sport. Before that, sport related projects were indirectly funded through other EU programmes. The 2014-2020 Erasmus + Sport programme provides grants for a broad range of actions and activities in the field of sport. The aim of the programme is to promote the positive values of sport and physical activity and good governance in the sector as well as support dual careers of athletes and projects against match-fixing, doping, violence, racism and intolerance. These funds are directly targeted to grassroots sports through collaborative partnerships, not-for-profit European sport events, dialogue with European sport stakeholders as well as studies and conferences. British sport and sport-related organisations as well as public authorities can benefit from funding. However, these possibilities may disappear following Brexit. Erasmus + Sport is a European programme and, as such, helps to finance projects contributing to the development of a European dimension of sport. Consequently, it is difficult to give an exact number of projects financed through the programme in the UK. However, to give an illustration, in 2015, just for Erasmus + Sport projects for which a UK sport organisations was the lead coordinator, the EU funding amounted up to 1.1 million euros. It should be kept in mind that other British organizations are simple partners to many other projects and are entitled to be funded as well (the 2015 budget for the Erasmus + Sports programme was 18,8 million euros). Will the UK be entitled to keep some funding? If it secures an EEA type agreement, Erasmus + Sport will still apply but the UK will have to financially contribute to it. 

The financial participation from the EU in UK sports is also possible through other EU programmes. It is worth mentioning the European Structural and Investment funds which promotes the socio-economic development of European regions (10.7 billion euros were awarded to the UK for 2014-2020). The EU also provides funding for sport related studies to which several UK-based academics and think tanks have already participated. One should not forget that the EU is also actively supporting academic and PhD research through several programmes (the main one being Horizon 2020) and that in case of Brexit it will have a negative impact on the UK’s capacity to produce academic output on sport (think about anti-doping, sports law and governance, economics studies, etc…). 

Gambling and sport betting

The British market for gambling and sports betting generated 12.6 billion pounds last year. It is one of the biggest markets in Europe and British betting operators seized the opportunities offered by the EU’s freedom to provide services to develop their activities in other EU Members States as the EU pushed for the opening of gambling and online betting to competition. As a consequence of Brexit, Gibraltar-based online betting firms (let’s face it, due to a favourable taxation system) might lose their access to the European market. The Gibraltar betting and gambling authority tried to put on a brave face in the aftermath of the Brexit vote but, in the case of Brexit, the best solution for the operators will be to leave Gibraltar for an EU Member State and secure its access to the European market (for example Malta, a very popular host for betting operators).

The economic impact for the gambling sector is sure to be important, but it is just as important for the sport sector as part of the betting industry’s revenue constitutes an important source of income for sport, and in particular grassroots sport via taxes. Furthermore, betting operators are active in sponsorship for professional club and athletes. If the financial stability of these companies is undermined, it will probably have an impact on both their participation in the financing of sport and their marketing strategy. 

Another problem that might arise for the UK in that area concerns the fight against corruption and match fixing that threatens the integrity of sport and its economic value. The UK cannot handle this problem alone and the EU, given the sector’s inherent cross-border nature, is encouraging cooperation between Members States and sport organisations to tackle the issue. Europol, the EU’s law enforcement agency, provides assistance to EU Member States and sport organisers (collaborating for example with UEFA). Brexit might imply that the UK will leave that organisation, yet it could also maintain a cooperation via operational or/and strategic agreements. In any event, the UK remains a member of Interpol also very active in the fight against match-fixing and illegal gambling


Just about everything is going to change between the EU and the UK and it is the same for sport. At this stage, a lot of guesswork is involved in trying to elucidate a picture of the impact of Brexit on sport. Whether with a direct positive action through its funding policy or because of the rules on the internal market and competition having an indirect impact, the EU had an influence on the whole of British sport. This blog tackled the main issues at stake in sport for the EU and the UK before the latter starts its negotiations to formally rescind its membership. But it also should be noted that the EU is an important arena for formal and informal discussion on subject that interest sport in general. For example the EU Work Plan for sport for 2014-2017 sets up EU expert groups to work on topical issues in the field of sport. The European Parliament also hosts a sport-intergroup. By leaving the EU, the UK is also leaving behind an opportunity to deepen its cooperation at the EU level.

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