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The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

A New Chapter for EU Sports Law and European Citizenship Rights? The TopFit Decision - By Thomas Terraz

Editor’s note: Thomas Terraz is a third year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

 

1.     Introduction

Christmas has come very early this year for the EU sports law world in the form of the Court of Justice of the European Union’s (CJEU) judgment in TopFit eV, Daniele Biffi v Deutscher Leichtathletikverband eV by exclusively analyzing the case on the basis of European citizenship rights and its application to rules of sports governing bodies that limit their exercise. The case concerned an Italian national, Daniele Biffi, who has been residing in Germany for over 15 years and participates in athletic competitions in the senior category, including the German national championships. In 2016, the Deutscher Leichtathletikverband (DLV), the German Athletics Federation, decided to omit a paragraph in its rules that allowed the participation of EU nationals in national championships on the same footing as German citizens. As a result, participation in the national championship was subject to prior authorization of the organizers of the event, and even if participation was granted, the athlete may only compete outside of classification and may not participate in the final heat of the competition. After having been required to compete out of classification for one national championship and even dismissed from participating in another, Mr. Biffi and TopFit, his athletics club based in Berlin, brought proceedings to a German national court. The national court submitted a request for a preliminary ruling to the CJEU in which it asked essentially whether the rules of the DLV, which may preclude or at least require a non-national to compete outside classification and the final heat, are contrary to Articles 18, 21 and 165 TFEU. Articles 18 and 21 TFEU, read together, preclude discrimination on the basis of nationality against European citizens exercising their free movement. The underlying (massive) question here is whether these provisions can be relied on by an amateur athlete against a private body, the DLV.

Covered in a previous blog, the Advocate General’s (AG) opinion addressed the case from an entirely different angle. Instead of tackling the potentially sensitive questions attached with interpreting the scope of European citizenship rights, the opinion focused on the application of the freedom of establishment because the AG found that participation in the national championships was sufficiently connected to the fact Mr. Biffi was a professional trainer who advertised his achievements in those competitions on his website. Thus, according to the AG, there was a sufficient economic factor to review the case under a market freedom. The CJEU, in its decision, sidelined this approach and took the application of European citizenship rights head on.

The following will dissect the Court’s decision by examining the three central legal moves of the ruling: the general applicability of EU law to amateur sport, the horizontal applicability of European citizenship rights, and justifications and proportionality requirements of access restrictions to national competitions.

 

2.     Applicability of EU Law to Amateur Sport

The CJEU has long made the distinction that sporting activity falls under the scope of EU law “in so far as it constitutes an economic activity.”[1]  Since this ruling in the 1974, treaty revisions, the natural development of the CJEU’s case law, and the increasing economic interests involved in sport has meant that defining the boundaries of EU law’s application to sport has become increasingly difficult. These borderline cases can especially arise when an amateur athlete is barred from a competition, since amateur athletes prima facie do not have an economic interest. For example, the CJEU in the Deliège case explored the extent to which amateur athletes may enjoy market freedoms. The Court ruled that amateur athletes may come within the scope of EU law when the exercise of their sporting activity is sufficiently connected to an economic sphere. In this case, an amateur athlete’s sponsorship contracts and grants were considered to be sufficient economic activity to fall within the scope of the freedom to provide services.[2] Amateur athletes in this case still needed to demonstrate that they had a minimum economic interest that was being affected by a sport rule. Sporting rules lacking economic effect would thus fall outside the scope of the market freedoms.

The TopFit ruling changes this understanding because Mr. Biffi is an amateur athlete and instead of invoking the market freedoms, he decided to rely on his European citizenship rights. These rights derive from being a citizen of the Union and do not require the exercise of an economic activity to be applicable. Indeed, Article 21 TFEU gives the free movement of persons a whole new dimension where an economic interest is no longer a prerequisite to fall under the aegis of the fundamental freedoms.[3] The CJEU confirmed this reality in Baumbast when it declared that the introduction of Union citizenship “has conferred a right, for every citizen, to move and reside freely within the territory of the Member States” regardless of their status as economically active or nonactive.[4] Thus, the Court in TopFit states, in reference to other cases, that one’s exercise of their free movement under their European citizenship, includes the “access to leisure activities” and that Article 21 (1) TFEU also intends “to promote the gradual integration of the EU citizen concerned in the society of the host Member State.”[5] It then extends this reasoning to sport by relying on Article 165 TFEU, the Article which explicitly introduced sport into the Treaties, which “reflects the considerable social importance of sport” and that the practice of an amateur sport helps “to create bonds with the society of the State” or “to consolidate them.”[6] The Court goes even further to unequivocally state that this is the “case with regard to participation in sporting competitions at all levels.”[7] On this basis, it is possible for amateur sportspersons to rely on Article 18 and 21 TFEU.[8] Therefore, the Court has confirmed that EU law, through rights derived from European citizenship, may apply to restrictions of free movement that arise from ‘all levels’ of amateur sport, basically extending the reach of EU law applicability to all types of sports activity on the territory of the EU, provided by public authorities or (as we will see in the next section) by private ones.  

 

3.     Horizontal Applicability of European Citizenship Rights

The next issue that materializes from the ability of amateur sports persons to rely on European citizenship rights is whether these rights may be invoked against private entities, the sport governing bodies. Indeed, sports throughout the European Union is primarily governed by a network of private associations integrated in the famous pyramid of sports. Treaty articles may be relied upon horizontally, meaning against other private parties, by individuals so long as the relevant article is “sufficiently clear, precise and unconditional to be invoked by individuals.”[9] AG Tanchev rightly argued in his opinion that giving Article 21 TFEU horizontal direct effect would be a “significant constitutional step” by being the “first time this century that a provision of the Treaty has been selected to join the small number of provisions having the quality of horizontal direct effect.”[10] In particular, the AG explains that Article 21 TFEU has always been used in relation to disputes arising between an individual and the State and giving horizontal direct effect to Article 21 TFEU could damage legal certainty.[11] 

Regardless, the Court in TopFit was not dissuaded and decided to allow Mr. Biffi to rely on Articles 18 and 21 TFEU against the DLV, a private entity. It explains that the fundamental objectives of the European Union “would be compromised if the abolition of barriers of national origin could be neutralised by obstacles” emanating from private entities.[12] The Court then goes on to elaborate that this principle applies “where a group or organisation exercises a certain power over individuals and is in a position to impose on them conditions which adversely affect the exercise of the fundamental freedoms.”[13] Such an interpretation of the horizontal direct effect of Article 21 TFEU is in line with the ‘relatively’ limited horizontal direct effect already described by De Mol for Article 18 TFEU that “concerns private relations in which one party is weaker than the other party.”[14] Thus, in order for one to invoke Article 21 TFEU horizontally, it is necessary to scrutinize the nature of the relationship and power (im)balance between the parties. The more asymmetrical the relationship, the more likely Article 21 TFEU may be relied on horizontally. On the whole, TopFit confirms that not only may Article 21 TFEU have horizontal direct effect but that perhaps this horizontal effect is not completely unlimited, although it is questionable what the practical consequences of this distinction actually entails.

In the sporting context, however, the message is clear: non-economic sporting activity, such as amateur level sports with zero economic benefits derived from it, falls under the scope of EU law and Article 21 TFEU may be invoked by EU citizens against the private associations which are more often than not ruling sports at a local, regional and national level in the Member States. In short, all (economic and non-economic) sports activity is now subjected to the control of EU law (in particular with regard to anti-discrimination).


4.     Justifications and Proportionality of Access Restrictions to National Competitions

After having found that Mr. Biffi may rely on his European citizenship rights against the DLV, the Court quite readily finds that there has been a restriction to this right. It asserts that the DLV’s rules could result in non-German athletes receiving less investment from their clubs since they may not participate in the national championships in the same manner as German athletes. Consequently, “athletes of other Member States would be less able to integrate themselves” in their club and the wider society of the Member State, and the effects of this “are likely to make amateur sport less attractive for EU citizens.”[15] However, a restriction on a fundamental freedom may be justified if it pursues a legitimate objective and meets the proportionality requirements. The Court goes on to entertain several justifications put forward by the DLV and firmly rejects each as an illegitimate objective. These rejected justifications include: “the argument that the public expects that the national champion of a country will have the nationality of that country”; that the national champion is used to represent his country in the international championship (it was clear that this was not the case for those competing in the senior category); and a “need to adopt the same rules for all age categories” (since it was obvious the DLV had adopted different rules in regards to national selection depending on the age category).[16] In the end, the Court only accepts one justification concerning preventing the participation of non-nationals in the final heat specifically due to the nature of eliminatory heats in some sports. It recognizes that the participation of a non-national may prevent a national from “winning the championship and of hindering the designation of the best nationals.”[17]

Having found a legitimate justification, the Court moves on to considerations of proportionality and reasons that “non-admission of non-nationals to the final must no go beyond what is necessary”, and it recalls the fact that the exclusion of non-nationals is only recent.[18] In other words, the Court essentially finds it rather strange that a sudden rule change became necessary to prevent the participation of non-nationals in the finals and, in light of this, finds the means to be unnecessary and generally disproportionate to the aim sought.

Next, it also recalls that participation of non-nationals was also subject to the authorization of the organizers and had resulted in Mr. Biffi’s complete exclusion in one competition. The Court explains that such an authorization scheme must “be based on objective and non-discriminatory criteria which are known in advance” to be justified. In regard to proportionality, it finds that “total non-admission” of a non-national athlete to the national championship in this circumstance to be disproportionate because due to the DLV’s own admission, there were ways for athletes to compete in the competition, either in the preliminary heats and/or outside classification. None of the DLV’s justifications were able to survive the proportionality requirements.

However, this does not mean that there could never be a legitimate justification that can meet the proportionality requirements. Interestingly, before it examined any of the DLV’s submitted justifications, the Court essentially gave a hint to sport governing bodies wishing to introduce nationality restrictions to the organization of their national competitions. It states that it is legitimate to limit the award of the national title to a national of the relevant Member State because the nationality requirement is an essential feature of holding the title.[19] Thus, it seems the Court would readily accept a restriction to the ability of non-national athletes to actually win the title.


5.     Conclusion

The CJEU took full advantage of the case before it by demonstrating how a lack of an economic interest does not give sport governing bodies full reign to prevent amateur athletes seeking to further integrate themselves in their host Member State’s society through amateur sport. It also signals the Court’s willingness to observe and take into consideration the specific characteristics of the sport and competition structure in question. Additionally, TopFit has opened exciting new judicial avenues for the exercise and enforcement of European citizenship rights against powerful private entities. In particular, sport governing bodies should pay close attention to the TopFit ruling because it further illustrates how they may exercise their regulatory autonomy provided they follow the analytical framework imposed by the CJEU in its control of discriminatory restrictions to market freedoms and European citizenship rights.


[1] Case 36-74 B.N.O. Walrave and L.J.N. Koch v Association Union cycliste internationale, Koninklijke Nederlandsche Wielren Unie and Federación Española Ciclismo [1974] ECR 1974 –01405 para 4.

[2] Joined Cases C-51/96 and C-191/97 Christelle Deliège v Ligue francophone de judo et disciplines associées ASBL, Ligue belge de judo ASBL, Union européenne de judo [2000] ECR I-02549 para 51.

[3] See Section III, Ferdinand Wollenschlager, ‘A New Fundamental Freedom beyond Market Integration: Union Citizenship and its Dynamics for Shifting the Economic Paradigm of European Integration’ [2011] European Law Journal 1.

[4] Case C-413/99 Baumbast and R v Secretary of State for the Home Department [2002] ECR I-08091 para 81 and 83.

[5] Case C-22/18 TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. [2019] ECLI:EU:C:2019:497 para 31-32.

[6] ibid para 33-34.

[7] ibid para 34.

[8] ibid para 35.

[9] Case C-438-05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti [2007] ECR I-10779 para 66; see also Paul Craig and Gráinne de Búrca, EU Law: Text, Cases, and Materials (6th edn, OUP 2015) 192.

[10] Case C-22/18 TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. [2019] ECLI:EU:C:2019:181, Opinion of AG Tanchev, para 56 and 100.

[11] ibid para 101 and 103.

[12] TopFit (n 5) para 38.

[13] ibid para 39.

[14] Mirjam de Mol, ‘The Novel Approach of the CJEU on the Horizontal Direct Effect of the EU Principle of Non-Discrimination: (Unbridled) Expansionism of EU law?’ [2011] Maastricht Journal of European and Comparative Law 109.

[15] TopFit (n 5) para 46-47.

[16] ibid para 54 and 56-57.

[17] ibid para 61.

[18] ibid para 62

[19] ibid para 50.

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Asser International Sports Law Blog | The boundaries of the “premium sports rights” category and its competition law implications. By Marine Montejo

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

The boundaries of the “premium sports rights” category and its competition law implications. 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.

In its decisions regarding the joint selling of football media rights (UEFA, Bundesliga, FA Premier league), the European Commission insisted that premium media rights must be sold through a non-discriminatory and transparent tender procedure, in several packages and for a limited period of time in order to reduce foreclosure effects in the downstream market. These remedies ensure that broadcasters are able to compete for rights that carry high audiences and, for pay TV, a stable number of subscriptions. In line with these precedents, national competition authorities have tried to ensure compliance with remedy packages. The tipping point here appears to be the premium qualification of sport rights on the upstream market of commercialization of sport TV rights.

This begs the question: which sport TV rights must be considered premium? The European Commission already held that European football championships, the Olympics and Formula 1 are premium rights but the question remains open for various other sports because they have not been the subject of competition proceedings yet. Two recent cases (the decisions are accessible here and here) brought before the French competition authority concerning rugby TV rights highlighted the need to bring out objective criteria to determine what are premium sport rights, bearing in mind that something premium in France may be qualified as non-premium in another market depending on its characteristics. Before discussing the need for legal certainty for sport rights holders, we will appraise the two French decisions on rugby and how premium sports are qualified.  


From non-premium to premium 

Canal Plus, the current holder of the rights, and the Ligue Nationale de Rugby (national rugby league, “LNR”) entered into a negotiated procedure regarding the renewal of their Top 14 TV rights. However, in December 2013, the procedure was unsuccessful and the LNR decided to terminate the contract it had with Canal Plus. In so doing, the LNR started a legal war with its former broadcaster. As one of the conditions for the approval of the TPS/Canal Sat merger, Canal Plus was required to give the LNR the option to terminate their contract at the end of the 2013/2014 season.[1] The LNR, deciding that the price Canal Plus was paying did not correspond to the reality of the market anymore, started an open call for tenders for the next four seasons which led Canal Plus to file several legal actions to challenge the interruption of the negotiations, the termination of the contract and the call for tenders. Almost immediately the LNR suspended the call for tenders and resumed its negotiations with Canal Plus. In January 2014, the exclusive TV rights for all the Top 14 matches were awarded to Canal Plus - not only for the subsequent four but ultimately the following five seasons (2014/2015 to 2018/2019). Canal Plus had to put 355 million euros on the table to acquire the exclusive rights, amounting to twice the amount it paid for the previous broadcasting contract. BeIN Sports, a newcomer on the French sport TV rights market,[2] filed a complaint and asked for interim measures with the Autorité de la concurrence.[3]

The French competition authority, in its decisional practice,[4] distinguishes six different markets for sport TV rights acquisitions: (i) the national football first division market (Ligue 1); (ii) the market for annual football championships involving French teams (Ligue, UEFA Champions League and UEFA Europa League); (iii) the market for the most attractive foreign football championships; (iv) the market for other football competitions; (v) the market for events of major importance other than football; and (vi) the market for sport competitions other than football and events of major importance (or “other rights”). The first five markets are better known as premium rights while the last one consists of all other non-premium rights. Rugby media rights were considered as non-premium before that decision.

The Autorité recognized that rugby and more importantly, the Top 14 championship, were facing an important growth in popularity as reflected by the high value of its broadcastings rights and the high audiences it attracts. At the time of the decision, rugby was the third sport, after football and tennis, in terms of viewers and Canal Plus accepted to pay an average of 71 million euros per season for the rights.

 

Top 14 average rights price per season (1998-2014) 


Canal Plus Top 14 audiences and best audiences per season (2008-2014)

 

The Top 14 appears to be an important source of subscriptions (pt. 100) which makes it particularly attractive for pay TV channels. This competition was the second driver of subscriptions (32%) for Canal Plus just after the Ligue 1 (51%) but before the UEFA Champions League (31%). In light of these circumstances, the Top 14 rights should be considered as premium TV rights.

Next, in considering which market these rights should belong to, the Autorité set four criteria to be met to decide on the relevant premium market: (i) key sales driver for TV subscription; (ii) high audiences; (iii) value over 10 million euros per season; and (iv) competition characteristics (level and regularity). Without being particularly clear, the Autorité seems to consider that the Top 14 rights belong to a separate premium market (pt. 138). As a consequence, given the particularities of the French market, the Top 14 rights shifted from the non-premium market to the premium market which means that their commercialisation should have been awarded through a transparent and non-discriminatory tender procedure, for a limited period of time and divided into several packages consistent with the national and European practices.[5] 


From non-premium to semi-premium? 

The question concerning the premium qualification of sport TV rights arose again in a more recent case[6] before the French competition authority, this time concerning the live broadcasting rights for rugby’s second tier (“Pro D2”). The LNR carried out a public consultation for the marketing of commercial rights for the Pro D2 championships for the 2015/2016 to 2019/2020 seasons. Following three rounds of negotiation, Canal Plus and Eurosport were awarded the rights for a total of 31 million euros. The third and rejected applicant, Ma Chaîne Sport (“MCS”), a fairly new but growing sports channel[7] and more importantly part of the Altice group (a multinational cable, fiber, telecommunications, contents and media company), filed a complaint before the French Autorité de la Concurrence. In this complaint, it claimed it was excluded from the selling process as a result of both a cartel between Eurosport, Canal Plus and the LNR, and an abuse of dominant position from the LNR on “the market for the acquisition of semi-premium sport TV rights” (pt.47).

The TV rights for the Pro D2 championship are part of the sport “other rights” market as the competition authority never had to decide on that particular case before. However, MCS is claiming that these rights should belong to a new and different market of semi-premium sport rights that, without combining together the usual criteria found in the jurisprudence to identify premium rights, are still able to attract significant audiences, making them sufficiently attractive to be of interest to premium channels.[8] MCS further argues that the Pro D2, the football Ligue 2 (second division), the basketball Pro A and the handball D1 (all first division) belong on that market. All those rights, with the exception of the Ligue 2 rights which are considered as premium, are valuable in terms of killer content for pay TV but currently belong to the non-premium rights market. The Autorité acknowledges that the non-premium rights market is set as default and brings together a heterogeneous set of rights in attractiveness and value (pt.55). It also acknowledges that some of these rights attract higher prices but not quite enough to meet the threshold of 10 million euros per season to be considered as premium. Referring to its consistent decision making, the Autorité considers that relying on a sole criterion, namely a higher selling price than the average prices in the non-premium market, is not sufficient to change the relevant market to a premium market, without a substitutability analysis (pt.58). As a consequence, those rights are still deemed to belong to the non-premium rights market.

The recognition of a semi-premium market would have led to a division in the non-premium rights market (i.e. semi-premium rights on the one hand and the remaining rights that are less valuable on the other hand). Once again, the Autorité points out that such a categorization within the non-premium category is irrelevant from a competition law point of view (pt.59). Establishing a specific premium TV rights market should involve legal consequences as usually occurs when TV rights shift from the non-premium market to a specific premium market. Within the same market, it is difficult to see what those legal consequences should be. The non-premium TV market is ruled by common contract law in contrast to premium rights that have to comply with a number of obligations to ensure compliance with EU competition law (open and transparent tendering process, packages, and limits in duration). Imposing those remedies on the semi-premium market would lead to the absorption of the market by the premium TV rights markets (pt.63). As a consequence, the Autorité finds that there is no legal need to define a semi-premium sport TV rights market.  


Towards legal certainty for sport rights holders

We have seen that the shift between non-premium and premium sport rights is the tipping point that leads rights holders to start open tendering processes for the selling of their rights. However, in France, the Code du Sport provides that sport federations are the owners[9] of the media rights for their sport. These federations can decide to transfer this ownership to clubs.[10] In this case, joint selling by the league is compulsory[11] and it has to be done through an open and transparent tender process, the rights must be packaged and they must be sold for a maximum period of four years.[12] The Code du Sport codifies the remedies imposed by the European Commission in the joint selling of football media rights cases, but it does not mention premium rights. These obligations are applicable in the case of transfer of ownership and where a professional league exists. Thus, in France it only applies in relation to football, rugby, basketball, volleyball and handball, five sport for which a professional league has been set up. In practice, the French football federation is the only federation that transferred the ownership of rights to its clubs for the first and second divisions[13] and, as a consequence, the football national league, responsible for the joint selling on behalf of the clubs, has to respect the obligations laid down in the Code. It is possible that, in hoping to circumvent those obligations, the other four federations decided to keep the ownership of the media rights. This is, in particular, the case of the rugby federation where the league is selling the media rights for the Top 14 and Pro D2 on behalf of the federation.[14]

Both decisions on the Top 14 and Pro D2 reintegrate the notion of premium and non-premium rights into the legal analysis. In the case of rugby, where the national provisions for the selling of sport rights did not apply because the federation was the owner of these rights and not the clubs, the shift from non-premium to premium rights leads to the application of competition remedies. Moreover, the Top 14 decision opens the way to tendering processes, packaging and the limiting of contract durations in cases of sports where national provisions do not apply because there is no professional league. Indeed, in this scenario, the media rights will be considered as premium because they fulfil all criteria. Hence, two scenarios can be envisaged: where a professional league exists, the federation has to decide whether it transfers the rights ownership to clubs and respects the obligations laid down in the law; and where it decides to retain ownership, or if there is no league, the federation or league has to make sure its rights are not premium in accordance with the Top 14 decision before deciding on the marketing procedure it has to follow.

The criteria developed by the French competition authority appear to be quite objective and effective as these criteria were also used by the Belgian competition authority in a dispute between Proximus and Telenet concerning the rights of the 2015-2016 cycle-cross Superprestige competition that were awarded to Telenet.[15] Telenet used the cumulative criteria from the Top 14 decision to show that cycle-cross does not constitute a separate market from the other cycling rights that are not premium. The national competition authority however, also referring to the French decision, considers that these rights should be on a separate premium market because of their popularity throughout Flanders and that they are subscriptions driver. The question remaining here is whether it would be useful to codify these criteria. First, it has to be stated that these criteria were only used in the case of live TV and that it is difficult to assess if they are objective enough to be used for all media transmissions (which are mostly Internet-based). On the other hand, media is a fast moving market and it is absolutely not certain that engaging in a legislative process to codify those criteria will give the margin of appreciation necessary to correctly assess premium sport media rights markets and prevent any distortion of competition. A full codification does not appear essential in that case and, as shown in the Belgian cycle-cross situation, these criteria can be used in other sports and markets to determine the premium qualification of media rights which gives a modicum of legal certainty to sport rights holders.

However, a question remains surrounding sport rights that almost fall within the premium market. For non-premium rights, rights holders have the freedom to decide how they want to organise the selling of their TV rights. As Telenet in the Belgian decision on cycle-cross rightly pointed out, the imposition of a transparent tender procedure for rights holders that belong to the non-premium market creates an imbalance as they do not have the same resources as the premium rights holders to organise such a costly tender procedure. Yet, in practice, and in the Pro D2 case, rights holders tend to organise tender procedures and unbundle their rights even though they are not legally obliged to do so. In the case of the Top 14, the LNR carried out a market assessment before even starting its negotiations with Canal Plus and should have known its rights fell into the premium category. The problem here for rights holders is to prevent any dispute arising after the selling process concerning the non-premium/premium qualification of the TV rights in question. Identifying a semi-premium category may be useful for rights holders in better managing the shift from non-premium to premium rights holders. Right holders that are close to seeing their non-premium rights become premium should carefully assess the commercial attractiveness of their rights and probably decide on a formal selling procedure in order not to risk their selling process being annulled by competition authorities.

As seen with these two French cases, the value of sport TV rights may change over time, depending on factors such as the improvement in the level of competition and the public interest, which creates the possibility for these rights to change categories. Moreover, this appreciation may change from one national market to another. Moving from the non-premium to premium market implies some important changes in the selling process and rights holders should carefully appraise the value and popularity of their sport beforehand. The criteria laid down in the Top 14 decision may be considered as guiding principles in this process and, accordingly, it may be used by other competition authorities faced with similar circumstances.



[1] Autorité de la concurrence, 12-DCC-100, 23/07/2012

[2] BeIN Sport is a French sport premium channel in direct competition with Canal Plus and Eurosport and owns an important portfolio of sport rights for football (Ligue 1, Ligue 2, UEFA Champions League and Europa League), rugby, tennis and handball in particular. In February 2016 Canal Plus announced it had reached an agreement to exclusively distribute beIN Sports. The French competition authority is expected to decide very soon on that issue.

[3] Autorité de la concurrence, 14-MC-01, 30/07/2014 and Cour d’Appel de Paris, arrêt du 09 octobre 2014.

[4] Autorité de la concurrence, 12-DCC-100, 23/07/2012.

[5] Commission Decision, UEFA Champions League (Case COMP/C.2-37.398), 23/07/2003

[6] Autorité de la concurrence, 16-D-04, 23/03/2016.

[7] MCS (from July 2016, SFR Sport channels) sport rights portfolio mainly consists of the competition rights overlooked by the biggest actors on the market. However, it owns some valuable rights such as the basketball Pro A (French first division basketball championship), the CEV DenizBank Volleyball Champions League, the WTA tour in tennis and more importantly, from 2016, the FA Premier League.

[8] « qui, sans réunir l’ensemble des critères habituellement retenus par la jurisprudence pour identifier un caractère premium, sont des moteurs d’audience significatifs pour les chaînes thématiques sportives et des contenus suffisamment attractifs pour également intéresser les chaînes premium », pt.49

[9] Code du Sport, articles L.331-1 and R.333-1

[10] Ibid, L.331-1

[11] Ibid, article R.333-2

[12] Ibid, article R.333-3

[13] See article 25 of the FFF/LFP convention

[14] See article 28 of the FFR/LNR convention

[15] Belgische Mededingingsautoriteit, 15-VM-65, 05/11/2015

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