Why is Ofcom investigating Eurosport’s Wimbledon TV deal?

By Tom Serby of Anglia Ruskin University Law School, Cambridge, United Kingdom

In early June 2016, it was reported that Eurosport, the pay-TV channel and a subsidiary of Discovery, had finalised an agreement with the Wimbledon lawn tennis tournament (one of only four tennis ‘Grand Slam’ events – or majors- globally) to air the tournament for the 2016-2020 period. This would make it the first commercial broadcaster to broadcast live coverage of Wimbledon in the UK.  It was also reported that Eurosport had concluded negotiations with the BBC, who currently hold the rights to broadcast Wimbledon, to share the TV rights over this period, but that the deal could not be concluded until the UK broadcasting regulator Ofcom, the UK Communications Regulator, had given its consent

Ofcom’s website at http://stakeholders.ofcom.org.uk/broadcasting/broadcast-codes/code-sports-events/applications/wimbledo-2016-2020/ confirms that the proposal is out for consultation until 15 June, with the tournament due to begin on 27 June.

“The BBC will broadcast live coverage and highlights of finals and non-finals play on BBC1 and BBC2, which are qualifying services, and additionally on their radio services (including BBC 5 Live) and interactive streams. Discovery will broadcast live coverage and highlights of the finals and non-finals play on Eurosport 1 and Eurosport 2, which are non-qualifying services, and additionally on their interactive streams.”

As is well known, sport in many parts of the world has undergone a profound cultural and commercial shift in the space of a generation, with the advent of pay-for-view satellite broadcasting, in place of terrestrial (i.e. free-to-view) television. The increased revenues for sport and higher earnings for athletes – see, for example, the latest Premiership football TV rights deal, which makes each game worth £10.19m (http://www.bbc.co.uk/news/business-31379128) – come at a price: hiding the sport behind the ‘paywall’ limits the number of viewers.  Lower viewing numbers may mean less people inspired by watching the sport to take it up themselves.  Reduced participation in sport has obvious consequences on health – even, perhaps, mental well-being.

Moreover, since sport is rightly viewed as a cultural, and more than purely commercial phenomenon, the State intervenes in regard to the public’s right to view sport – for free.  Thus, certain events are ‘listed’ so that, by law, full live coverage must be available on terrestrial television, i.e.  on the non-subscription national UK TV channels.  The UK Department of Culture, Media and Sport describe these listed events as ‘of major importance to society’ which are, therefore, ‘protected’ as the so-called ‘crown jewels’.  The 1996 Broadcasting Act (http://www.legislation.gov.uk/ukpga/1996/55/contents) empowers the Culture Secretary to decide which are ‘listed’ events; they currently include, for example, the Olympics; the Football World Cup and the European Championships; the Grand National; and the Wimbledon finals. These ‘A list’ events must be shown live on terrestrial television; other ‘B list’ events must have highlights packages on terrestrial television. Ofcom oversees the regulation of the Act.

The England and Wales Cricket Board faced considerable criticism when it sold rights for all live international cricket matches involving the England team to Sky in 2004, since when viewing figures have been decimated – quite literally, the last free to air Ashes matches in 2005 drew over ten times the viewing figures of those shown on satellite TV (https://www.theguardian.com/sport/blog/2015/jul/12/ashes-sky-england-australia-ecb-tv ).  Not surprisingly, this has translated recently to alarming figures in regard to participation in what many still regard as the country’s summer game (http://www.espncricinfo.com/england/content/story/801645.html).

There has been a similar outcry about golf’s recent decision to put ‘The Open’ behind the ‘paywall’.

All of this has sparked debate amongst political parties about which events should be protected and hopes rose in 2010 that Test cricket (and other events like the Golf Open) would be listed; however, with the election of a Conservative Government hopes have been dashed, and it now looks increasingly unlikely that sports, such as cricket, tennis, golf and rugby, will gain legal protection in terms of a mass audience. See the review in the House of Commons Briefing Paper dated April 2016  (http://researchbriefings.files.parliament.uk/documents/SN00802/SN00802.pdf).

Legally speaking, there is no reason at all why Ofcom will not conclude its consultation and give the go-ahead to the Eurosport deal.  Since, only the Wimbledon finals are a listed event, it is entirely conceivable that, when the current Wimbledon TV deal with the BBC expires in 2020, Wimbledon tennis (save for the finals) will join Test cricket and the Golf Open behind the ‘paywall’!

Tom Serby may be contacted by e-mail at ‘Tom.Serby@anglia.ac.uk’