Over-the-top (OTT) streaming service Eleven Sports announced last week that, for the time being, it will revert to respecting the Saturday afternoon blackout period during which no soccer matches can be broadcast in the UK under Article 48 of Uefa’s statutes. Whilst Eleven had flouted this restriction by showing two live La Liga games in the UK during the blackout, last week’s announcement ended that brief period of defiance, which threatened the existence of the blackout period and led to questions regarding its legitimacy.
Pressure on Eleven from stakeholders
Eleven stated last week that its decision to now respect the blackout had come after 'intense pressure from stakeholders'. Some of that pressure may have come from the English Football League (EFL), whose chief executive Shaun Harvey stated: “The origins of Article 48 were to protect the interests of the game in this country as a whole." Particularly lower down the EFL, where gate receipts are a greater source of income than broadcast revenue, many clubs strongly advocate the blackout on the basis that it encourages fans to attend their games. Given Andrea Radrizzani is both the owner of Aser, which operates Eleven, and also chairman of Championship club Leeds United, it is easy to imagine how the EFL might have brought pressure to bear on him.
A quick analysis of how the blackout can be enforced explains why Eleven felt able to defy the blackout with impunity.
How did we get here?
Uefa’s member associations bear full responsibility under its regulations for ensuring that the blackout is observed. By contrast, broadcasters such as Eleven who acquire rights to matches played in Uefa member countries are not directly subject to Uefa’s regulations.
The English and Scottish Football Associations (FAs) may have breached their responsibility to ensure that no transmissions take place within their territory during the blocked hours. However, it's difficult to see what they could have done in this case to prevent the transmission, having no relationship with Eleven.
The Spanish FA were also technically in breach of Uefa’s regulations by failing to ensure that 'no transmissions of matches played within its territory take place within the territory of any other member association during its blocked hours'. The Spanish FA may have some - albeit indirect - responsibility for Eleven’s breaches of the blackout. It has a duty under the Uefa regulations to ensure that the regulations, including in respect of the blackout, are included in any contract for the transmission of matches which take place within its territory - irrespective of whether or not it is the seller of the broadcast rights itself.
In this case, the rights to the Spanish games were sold to Eleven by La Liga, rather than by the Spanish FA itself. However, if the Spanish FA did not ensure that the blackout was reflected in La Liga’s contract with Eleven, Uefa could impose sanctions for that failure on the Spanish FA, but it couldn’t impose sanctions directly on La Liga or Eleven. The fact that La Liga had previously felt comfortable supporting Eleven’s defiance of the blackout suggests that the league is confident it would not suffer any sanctions imposed by the Spanish FA.
The UK's 3pm blackout rule has been described by Eleven as ‘unfit for the modern, digital era’
What is the future of the blackout?
Despite Eleven’s announcement that it will now comply with the blackout, it has issued a thinly-veiled threat to challenge the blackout under competition law.
The way that soccer is consumed by the viewing public has clearly evolved since the blackout was first introduced in the 1960s, and modified to its current form in 2001 after a legal challenge. The blackout raises a number of issues that may be grounds for a referral to the authorities.
Competition Law – distortion of the market
By reducing the number of matches that can be broadcast in the UK, it could be argued that the blackout artificially drives up the prices of those packages of matches which are available and distorts competition between broadcasters. The higher prices paid by them for the rights packages are then passed on to their customers. Furthermore, a foreign league selling its rights may contend that the rule limits its ability to monetise and exploit its matches in the UK. This could explain La Liga’s public support of Eleven’s actions.
Piracy and illegal streaming
Eleven made the link between online piracy and illegal streaming and the blackout, arguing that viewers wishing to watch soccer during the blackout simply turn to illegal streams in the absence of official broadcasts. Online piracy reduces broadcasters’ revenues and profit margins significantly, which could actually reduce the fees that the leagues can charge for the rights to broadcast their matches.
A legitimate objective?
If the blackout could be shown to have an appreciable effect on competition, the authorities would need to assess whether the restriction is proportionate to achieve a legitimate objective. This would be an interesting balancing act.
The blackout period has long been supported by certain stakeholders as a means of maintaining attendances and so gate receipts at lower level clubs, and actual participation in amateur soccer matches.
However, an EU Advocate General noted in relation to a similar legal challenge that the link between the blackout and attendances and participation in soccer is far from proven.
If there is a lack of evidence that the blackout achieves its purported objectives, it would be hard to see the competition authorities looking past the fact that the blackout period distorts the market for soccer broadcast rights, arguably drives up prices both upstream and downstream in the market and leads to increased piracy. Furthermore, a report published by the EU in 2014 stated that the blackout sits at odds with the European Commission’s aspirations to promote cross-border access to audiovisual content.
Although Eleven is observing the blackout for now, soccer may well be back on our screens on Saturday afternoons soon, whether simply as a result of further broadcaster defiance, or perhaps more permanently as a result of a challenge before the competition authorities.