The Saturday 3pm football blackout: does it have a future?

Football fans across the country generally know the score: if your team has a 3pm Saturday kick-off, the only way to watch the match live legally will be to buy a ticket and head through the turnstiles. However, on Saturday 8 September 2018 supporters in England tuned in to live coverage of that day’s fixtures on the English Football League’s (EFL) iFollow streaming platform (and other club-managed platforms).

This was possible because a “blackout” imposed by the FA on the broadcasting of football between 2.45pm and 5.15pm on a Saturday does not apply during international breaks when other football is being broadcast during the blackout period. Andy Holt, chairman of Accrington Stanley who currently play in EFL League One, tweeted that “[the decision to broadcast Saturday 3pm kick-offs] kills our income and destroys atmosphere.”

This article will consider the legal basis for the Saturday 3pm blackout and whether it has a future in the current football landscape.

Regulatory basis

Article 48 of the UEFA Statutes grant UEFA and Member Associations (“MA”) exclusive broadcast rights to matches which come within their jurisdiction. Article 3 of the Implementing Regulations to Article 48 allows each MA to designate two and a half hours on weekends to prohibit the transmission by any means of any football in the territory of the MA.

The MA decisions regarding blocked hours for the 2018-19 season are published here.

Justification

Article 2 of the Implementing Regulations states that allowing transmission-free periods is designed to ensure that spectators are not deterred from attending football matches or participating in matches themselves on account of broadcast matches.

International break exception

Article 4 of the Implementing Regulations states that if the MA decides to transmit a match during blocked hours, it must also accept the transmission of any other match in its territory during the same period. International matches are widely scheduled during the 2.45pm – 5.15pm period on a Saturday. As soon as a match is permitted to be transmitted in England, all matches can be transmitted; therefore, the blocking period is not sustainable during international weekends and the FA excludes these weekends from the blackout.

What future for the blackout in the current landscape?

The UEFA blackout Regulations were first introduced in the 1980s, at a time when the whole English Football League’s TV rights were valued at approximately £12million a season. So are they still sustainable in a current landscape where the Premier League TV rights alone are valued at around £1.3 billion a season?

Ofcom carried out consumer research in 2016 which suggested that fans strongly valued the Saturday 3pm kick-off slot to attend matches live. Furthermore, advocates for lower league clubs are more likely to oppose removing the blackout by reiterating that they rely on matchday income to a much larger extent than elite clubs (for whom TV revenue has far surpassed gate receipts as an income source).

However, the views of fans and chairmen may be side-lined if the European Commission becomes involved in the dispute. In 2001 the Commission found that a weekly restriction of two and a half hours had no appreciable effect on competition and so did not infringe Article 101(1) TFEU. It is possible that in the current climate this would not still be considered the case. The blackout has a two-way effect across Europe. First, following the Murphy case¹, the blackout is implemented in a way which effectively means that even on the continent Premier League matches cannot be shown in English and only one 3pm kick-off can be shown by a licensee. In 2014 Virgin Media, in a complaint to Ofcom, argued for all 380 Premier League matches to be shown live so as to stop what they saw as the artificially high price of obtaining the rights. Secondly, even continental football is prohibited during the blackout period; as a result, fans of Cristiano Ronaldo missed the first 15 minutes of his Juventus debut as the game kicked off at 5pm UK time. Eleven Sports, who have UK rights to Serie A, have stated their intention to challenge the blackout.

If an appreciable effect on competition were shown, the Commission would consider if the blackout rule is inherent or proportionate to a legitimate objective. This would be an interesting balancing act. For example on one hand, AG Kokott noted in a 2011 Opinion that “it has not been adequately shown…that the closed periods actually encourage attendance at and participation in matches”, and 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”. On the other hand, perhaps furthering the legitimate objective of increasing sports participation and the health benefits which result would be favoured by the Commission.

If the European Commission takes a close look in the current climate of sports viewing habits, its decision will have a significant effect on football fans, clubs, and media stakeholders when the 3pm kickoffs come around.

¹Football Association Premier League v QC Leisure and Karen Murphy v. Media Protection Services Limited (2011) - C-403/08 and C-429/08

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