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Foreign Satellite Television Update

The Murphy/Premier League case – What does it mean for Clubs?

The European Court of Justice (ECJ) has ruled in the landmark Murphy case that restricting the sale of European foreign satellite decoder cards is “contrary to the freedom to provide services”.

The ECJ has stated that the only part of broadcasts involving sport, which can be subject to copyright are items such as on screen graphics, theme tunes, credits, highlights and commentary.

The ruling will now return to the High Court where a decision will be made on how the ECJ’s verdict is incorporated in UK legislation. Questions remain over what this ruling means for Clubs and until this case returns to the High Court the final outcome will not be known.

Technically, until this ruling has been considered by the High Court, UK legislation has not been altered and remains unlawful for Clubs to use the services of European broadcasters. This ruling does not have any effect on broadcasters outside of the EU and Clubs will still be prosecuted for using television services which do not originate from the EU irrespective of what is ultimately decided by the High Court.

Whilst it is possible that the Premier League could continue to prosecute Clubs for using European Television Systems, we consider it is unlikely that any prosecutions will take place until the outcome of the High Court decision.

The Premier League has already announced that it considers that the ECJ ruling would prevent Clubs from broadcasting sport from foreign satellite systems, since it considers that the copyrighted aspects of the broadcast – credits, onscreen graphics etc. – still require authorisation in order to be broadcast to the public as referenced in the ECJ’s judgement:

‘Only the opening video sequence, the Premier League anthem, prerecorded films showing highlights of recent Premier League matches and various graphics can be regarded as ‘works’ and are therefore protected by copyright. By contrast, the matches themselves are not works enjoying such protection. That being so, the Court decides that transmission in a pub of the broadcasts containing those protected works, such as the opening video sequence or the Premier League anthem, constitutes a ‘communication to the public’ within the meaning of the copyright directive, for which the authorisation of the author of the works is necessary.’

However, this view has been disputed by several legal commentators. Competition lawyer Julian Maitland Walker from Maitland Walker has stated that he considers that the UK Courts will decide to allow copyrighted material to be reproduced as per the Copyright Directive. Leading licensing expert Peter Coulson has stated that he considers Media Protection Services, who work on behalf of the Premier League, will find it difficult to ‘prosecute anyone for using an EC foreign decoder card’. However, most commentators, including the two mentioned above, are still advising Pubs and Clubs to wait until the situation is clarified before deciding to purchase a European decoder card.

In the long term there are further complications on the horizon. It is anticipated that in the event of the Premier League being unable to prevent Pubs and Clubs from using EC foreign decoder cards, they will, from 2013, only sell rights to a few pan- European broadcasters. In theory this could result in SKY UK being granted exclusive European rights for Premier League football coverage. SKY UK would then be able to sell the rights across Europe at a rate which would, presumably, be similar to what they currently charge UK Pubs and Clubs to show sports coverage.

As 90% of football television revenue for the Premier League is generated from within the UK it is clearly preferable for the Premier League to licence the rights in such a way to maintain the value of its UK coverage, even if this is at the expense of selling the rights across mainland Europe. The current agreements end in 2013, at which point the Premier League will be able to renegotiate all of its contracts with regulated broadcasters.

In short, the situation is relatively complex and it will likely be some time before the position becomes clear as to whether Clubs are legally able to show sports coverage received from a supplier other than SKY UK or ESPN.

We consider that it is likely that the position will change in 2013 and that television rights to football will be sold in such a way as to maximise revenue for the Premier League. This could be achieved by simply dramatically raising the fees paid by European broadcasters to show Premier League games thereby wiping out any benefit for Clubs using a foreign decoder card to show games.

It is difficult to say at this stage whether or not this ruling will ultimately benefit Clubs and it is likely that any benefit that is derived will expire in 2013.

The Premier League gave the following statement in response to the Court’s verdict:

‘This is clearly a complex issue, one that the European Court of Justice (ECJ) has spent a significant amount of time considering. The ECJ judgment responds to 18 specific questions referred by the UK High Court. They have now answered these questions in terms of how European Law applies. It is now for the High Court to consider how the ECJ judgment affects the cases in question.’

We will continue to monitor this important subject and provide Clubs with updated information through the Conservative Clubs Magazine.

Noise Polution

Clubs always try to be good neighbours to people who live nearby but occasionally even the best regulated clubs may do something that will cause a complaint. Often this concerns noise, possibly from enthusiastic entertainers whose music can be heard outside the club or from members leaving the premises inconsiderately. Many clubs put up notices urging members to be careful not to upset the neighbours with excessive noise because complaints can cause ill-feeling, trouble and can cost money.

Noise is classed as a ‘statutory nuisance’ under the Environmental Health Act 1990 and if a complaint is made and ignored, the club could find itself in court and facing a heavy fine. Sensible clubs would take steps to deal with the situation before a complaint reaches this stage but it is essential to do something once there is the suggestion that noise is causing a problem.

There are various stages that have to take place before a noise nuisance case gets to court. A person with a complaint would take it to their local authority who would usually write to the club pointing out that there has been a complaint. Under no circumstances should such a letter be ignored in the hope that the complaint will go away; it won’t.

The club should take steps to deal with the alleged nuisance and then seek advice before attempting to reply. If the situation is still not resolved, the local authority would then issue an ‘abatement notice’. At this stage, the club must definitely seek legal advice. Doing nothing is not an option. Club officers should bear in mind that if a complaint about noise does reach court, and is proved, the fine can amount to a massive £20,000.

National Minimum Wage

On the 1st October 2011, the National Minimum Wage was increased for all workers aged 21 and over from the current level of £5.93 to the new level of £6.08. For workers aged 18-20 the NMW is increased from £4.92 to £4.98 and for persons aged under 18 the new level is £3.68, up from £3.64. We advise all Clubs to make sure your contracts are up to date and reflect the new rate where appropriate.