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28 August 2019

Friday Night’s Alright For Football (But Monday Isn’t…)

The Spanish football season kicked off on the evening of Friday 16th August with a surprise 1-0 victory for Athletic Bilbao over Barcelona. However, the fixture nearly didn’t go ahead as planned on the Friday evening and was only confirmed a week before the curtain-raising weekend by an ‘interim’ ruling of a judge in a Madrid commercial court.
The uncertainty has been caused by a dispute, the latest in a long-running administrative war, between LaLiga (the Spanish league body) and RFEF (the Spanish FA) regarding who has the competence to select the days on which fixtures take place in the top two Spanish divisions. This article examines the root of the dispute, the decision handed down by the judge and the implications for clubs and broadcasters domestically and internationally.

Background

The schedule for the opening weekends in the top two Spanish divisions was first ‘announced’ by LaLiga and included (for the top division) the Bilbao-Barcelona fixture on Friday evening and two fixtures scheduled for the Monday evening. On 26th July, the RFEF ‘overruled’ this and stated that all fixtures on the opening three weekends of the season would take place on Saturdays or Sundays, unilaterally adjusting the schedule accordingly. After an unsuccessful mediation attempt, LaLiga referred the matter to the Spanish courts, seeking an order that RFEF should “cease to carry out any actions that prevent LaLiga from complying with its obligations with the [TV] operators” and therefore to respect LaLiga’s scheduling of matches on Fridays and Mondays.

LaLiga arguments

LaLiga argued that it holds an exclusive right to organise the first and second divisions of Spanish football competition, including “how to develop the competition as well as to exploit the audiovisual rights”. LaLiga submitted that Royal Decree 5/2015 (a key piece of legislation allowing the centralised sale of media rights by LaLiga) gives LaLiga exclusive competence to set dates and times of fixtures, to sit alongside its competence to market the media rights.

Furthermore, LaLiga stated that “holding matches on Mondays and Fridays is transcendental to the exploitation of the media content”. One of LaLiga’s witnesses, the president of Mediapro (who act as LaLiga’s agent in the international marketing of the TV rights), pointed to the example of the Arab market for Friday nights, stating “Playing on a Friday puts us in the Arab market, as Friday is the weekend there. It’s not a coincidence that the Premier League has started to do that now.” This emphasises the competition between major football leagues to further their brand in international markets, and the importance of scheduling to the value of a league’s product.

RFEF Arguments

The RFEF argued that, according to its Statutes (at inter alia Articles 29 and 32) the process for setting the calendar requires final approval from the RFEF following a request from La Liga. A key part of this dispute centred on the principle of co-ordination between LaLiga and RFEF. The previous “Co-ordination Agreement” between LaLiga and RFEF (which ran for a 5-year period from 11 August 2014) contained, at Annex 2, an authorisation to “hold matches in [the top two divisions] on the Friday before and/or the Monday after each official game-week”. The RFEF pointed to the fact that in the new Agreement, concluded in July 2019, did not contain this general authorisation so LaLiga could not simply go ahead and schedule matches on those days.

The RFEF has consistently pointed to dwindling Monday attendances and serious fan discontent as reasons to resist scheduling fixtures on that day. It is not uncommon for fixtures in Spain to kick off at 9.30pm local time on Mondays to accommodate factors such as prime-time television slots and the heat, so it is easy to see why fans may not make lengthy journeys to these games. These arguments highlight the ever-increasing tug of war between the interests of the rights distributors and the interests of football fans wishing to watch their team play live.

Decision

The judge issued a 32-page ‘decision’ (in Spanish only) on 9 August. He ruled (at paragraph 20) that in principle, the model for arranging matchdays outside of the official days of Saturday and Sunday should be that of co-ordination, and that the Royal Decree 5/2015 had not changed this. However, the judge stated that the RFEF, in negotiations for the most recent co-ordination agreement, might have carried out a “disloyal practice” in not granting the same authorisation for Monday and Friday fixtures as it had previously given in Annex 2 of the 2014 agreement. The judge considered that the RFEF’s primary opposition has been to Monday fixtures and that it would be prepared to negotiate regarding Friday fixtures. He therefore arrived at what has been described as a “Solomonic” interim order that, for the first 3 weeks of the season, matches may be scheduled for Fridays, but not for Mondays. Scheduling on Fridays is subject to LaLiga paying the RFEF €15million as an “estimation of the damages that the RFEF may suffer for the temporary interference.”

Implications

These interim measures will need to be revisited for the remainder of the season once each party’s position has been argued more fully. However, the possible implications for clubs and broadcasters are wide. Between 60%-90% of income for Spanish clubs is derived from television rights money, and it is estimated that as a result of matches not being able to take place on Mondays, the sum payable under LaLiga’s TV deals may be up to €300million less in total annually than what had been initially negotiated with broadcasters. This matter will rumble on and will no doubt continue to be framed as the RFEF attempting to protect the fans’ interests, locked in battle with LaLiga who wish to make their product as appealing as possible to broadcasters worldwide.


 For more information please contact Jonathan Hyman on +44 (0)20 7438 2201 or at Jonathan.Hyman@crsblaw.com.

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