English fans of Spanish football may have been disappointed this weekend not to find El Clásico, the match between FC Barcelona and Real Madrid, in their TV guides. The match kicked off at 3:15pm UK time and finished 1 – 1, with honours even, but was not shown on English television.
While El Clásico represents one of the biggest matches in the football calendar, English broadcasting bodies were prohibited from showing the game this weekend as it fell within the Saturday afternoon broadcasting blackout, during which no live football may be shown on television.
The blackout reportedly originated in the 1960s, when Burnley FC’s then Chairman Bob Lord agreed with his fellow Chairmen that televised matches on a Saturday afternoon would have a negative effect on the attendances of other football league matches that were not being televised. The outcome would be to reduce the clubs’ financial income. Lord was a staunch critic of televised football, even banning Match of the Day cameras from Turf Moor when the show was first launched. That ban is said to have remained in place for five years.
Fifty years later, the blackout remains in force in England between 2:45pm and 5:15pm on Saturday afternoons during the course of the football season. Yet, given the vast difference between the football landscape that existed in Lord’s time and the one that exists nowadays, there is a real question as to whether a justification for such rule remains.
What is the regulatory basis for the broadcasting blackout?
The first question to answer is where one finds the regulatory basis for the blackout. The answer is found in part in Article 48 of the UEFA Statutes, which states that:
“1. UEFA and the Member Associations shall have the exclusive rights to broadcast and use, as well as authorise for broadcast and use, by picture, sound or other data carriers of any kind (including data carriers which have yet to be developed), matches which come within their jurisdiction, either live or recorded, in whole or as excerpts.
2. The Executive Committee shall issue regulations governing the implementation of these rights.”
Pursuant to Article 48(2), UEFA has promulgated the UEFA Regulations Governing the Implementation of Article 48 of the UEFA Statutes. Article 3 of those Regulations states as follows:
“1. Each member association may decide on two and a half hours on a Saturday or a Sunday during which any Transmission of football may be prohibited within the territory of the relevant member association. This prohibition shall apply only to intentional Transmissions.
2. The two and a half hours period (or periods) must be decided on by the member association fourteen days, at the latest, before the beginning of its domestic season, at which time they will enter into force and apply for the whole season.
3. All decisions of member associations concerning “blocked hours” must be reported to UEFA in writing at the time of the decision… UEFA shall publish the relevant information and act as the governing body for these Regulations…”
In accordance with these Regulations, UEFA has published details of the member associations that have opted to enforce such blackout periods for the 2016/2017 season. Those associations listed are England, Montenegro, Northern Ireland and Scotland, with the blackout periods enforced at various times across Saturday afternoons on various dates during the season.
What is the purpose of the broadcasting blackout?
As noted above, the initial purpose of the broadcasting blackout in England was to avoid a negative effect on attendances at league matches: its objective was to remove the temptation for fans to stay at home and watch matches when they could be at the stadium in person.
That original objective has been used and developed by Article 2 of the UEFA Regulations Governing the Implementation of Article 48 of the UEFA Statutes, which states that:
“1. The present Regulations are designed to ensure that spectators are not deterred from attending local football matches of any kind and/or participating in matches at amateur and/or youth level, on account of Transmissions of football matches which may create competition with these matches.
2. The member associations shall not discriminate against football from other countries, and these Regulations apply equally to Transmissions of domestic and foreign matches.”
This provision goes further than the original objective, ensuring that spectators do not stay at home to watch televised football matches when they could be out playing, or attending any form of football, including amateur and youth football. This is an objective that effectively seeks to protect the popularity of grass-roots football from the behemothic top level professional football leagues.
Yet some have argued that there is no good reason for the rule to remain. When the European Court of Justice delivered its judgment in the joined cases of FA Premier League v QC Leisure and Others (C-403/08) and Karen Murphy v Media Protection Services (C-429/08) regarding the power of the Premier League to licence its broadcasting rights on an exclusive territorial basis, Advocate General Kokott noted in her Opinion that:
“It is, in fact, doubtful whether closed periods are capable of encouraging attendance at matches and participation in matches. Both activities have a completely different quality to the following of a live transmission on television. It has not been adequately shown to the Court that the closed periods actually encourage attendance at and participation in matches. Indeed, there is evidence to refute this claim: for example, in an investigation of the closed periods under competition law the Commission found that only 10 of 22 associations had actually adopted a closed period. No closed periods were adopted in France, Germany, Italy and Spain, or in Northern Ireland, that is to say, within the sphere of English football. Furthermore, in Germany today all Bundesliga matches are evidently transmitted live without attendance at matches in the top two leagues suffering as a result.”
While Attorney General Kokott may well have a point, it is very easy to look at the rationale of the rule from the view of the top clubs alone. Their commercial revenue and income from broadcasting deals is so large that ticketing income is practically a secondary concern. Yet that is not the case when one goes further down the leagues. There, where there are not significant sums to be earned from broadcasting or commercial arrangements, ticket sales are still of the utmost importance to a club’s survival. On a rainy and windy Saturday afternoon in December, one can see the temptation of staying in the comfort of one’s front room to watch the glamour of El Clásico, with the world’s best players going head to head, rather than going to the local ground to watch lower league football.
Perhaps, rather than negatively comparing the few national associations that do implement the blackout period to the majority that do not, those national associations in the minority (of which the FA is one) should be applauded for seeking to protect lower league and amateur football.
