Access to broadcasting rights for major sporting events is a problem in Africa. There are solutions to remedy this, says law professor Abdoulaye Sakho.
The high cost and method of allocating rights to sporting events such as the football World Cup regularly give rise to media battles, particularly in Senegal and Ivory Coast. Here are some suggestions to fix it.
How to reconcile the owner's right to market his event as he sees fit with the need for the general public to follow an event which increasingly features national teams from the African continent? The solution is based on the existing one. We must draw inspiration from existing solutions and adapt them to the economic and social context of West Africa.
The State's current need is to ensure that every citizen can follow the World Cup, wherever they are and whatever their financial means. To achieve this, I suggest enshrining in our legal space the legitimacy of a mechanism for the protection of sporting events of major importance.
Event Access Protection
Protecting public access to major events around the world. Currently, despite the progressive pay TV penetration in Africa, the majority mode of reception for this medium remains, over a large part of the surface of the globe, the free terrestrial hertzian channel. Such a situation justifies the legitimacy of the mechanism for protecting events of major importance.
In France, in application of the European Directive known as “ Televisions without borders ", the government has adopted regulations which provide that "events of major importance may not be broadcast exclusively in a way which results in depriving a significant part of the public of the possibility of following them [...] on a service of free-to-air television.
Other European countries, for example, Belgium and the United Kingdom, have implemented regulations aimed at limiting the rights of international federations with regard to the exploitation of the world Cup and euro soccer. These countries are based on the fundamental argument that these events are "deemed to be of major importance for society" and that part of the public should not be deprived of the possibility of following them, whether live or delayed on terrestrial television.
What strategy for the rights of retransmission on our premises?
The establishment of a strategy for respecting the right of the public to follow major events is based on a process.
Drawing inspiration from the processes already in place in some countries, it will be necessary to start with a list of “events of major importance in Africa. For example, the African Cup of Nations and some World Cup matches can easily fall into this category. L'African Broadcasting Union (UAR, ex-URTNA) had started the process and had even defined “four main criteria, to be taken into consideration to determine the events fulfilling the conditions to be considered of major importance”:
- Firstly, does the event unite a wider public than that which is traditionally concerned, that is to say does it find a particular resonance and is not simply of importance for those who usually follow the sport or activity in question?
- Then, does the event contribute to the national cultural identity, generally recognized by the population of the State concerned?
- Then, does the event involve the national team as part of a major event?
- Finally, is the event traditionally the subject of a large television audience?
It will be necessary to organize to have a significant power of negotiation vis-a-vis the offer of rights of retransmission by creating the conditions of a joint acquisition of the rights of retransmission. This has considerable advantages by offering each member better
conditions of acquisition with a view to covering a major international event for which he could not have acquired the rights on his own.
The UAR, an association bringing together public television channels and an instrument of African integration, should enable its members to jointly acquire exclusive rights for the retransmission of sporting events in Africa. The control strategy for the access of African populations to major sporting events must be based on the UAR, which seems to me to be the right choice to steer and implement the project.
To conclude, I would like to draw attention to the complexity resulting from the plurality of rights applicable to retransmission rights. We are at least on two fields of play, two fields:
- the international field in which the match opposes the seller of the rights and the buyer: we are there in the field of the contract law with application of the rules relating to the sale as soon as the contract is executed on the territory;
- the local field in which the match opposes the economic actors in competition for the rights put on sale: we are here in the field of the competition law. It will be necessary to examine the exclusivity clauses and their effects on competition, hence the distrust of positive law.