Obstructing the field: balancing exclusive rights with other interests in cricket

Exclusivity is not a new concept in cricket – indeed only ten nations have full membership of the International Cricket Council (“ICC”) and therefore hold the right to stage official Test matches (as set out in the ICC’s Guideline Criteria for Full Membership of ICC). However, like many other modern sports, cricket has become incredibly lucrative and has seen its visibility and global following rise significantly with the establishment of new media and the growth of its coverage. Indeed, media rights are one of the most lucrative slices of the pie - estimated to generate $1.109 billion at the end of the ICC’s current financial period (2007-2015). This has lead to many agreements offering exclusive rights to media coverage of matches. Certain national bodies have even argued for a weighted redistribution of this wealth according to the ‘size’ of each nation’s market. Interestingly enough, the Explanations to section 32.3 of the ICC’s Rules invite ICC members “not to put themselves or the ICC in breach of their respective commitments to those commercial partners, as this would threaten the generation of commercial income for distribution throughout the sport”.

This context begs the question: how will these revenue-maximising efforts, often accepted to be good for the sport, interact with rules of competition law, media regulation and other public interests? An interesting ongoing dispute in India (STAR India Pvt Ltd vs. Piyush Agarwal (Cricbuzz) and ors.)  is shining the spotlight on this issue.

The exclusive rights to the broadcasting of live cricket in India were sold by the Board for Cricket Control in India (“BCCI”) to STAR India Pvt Ltd. (“STAR TV”) for a period of six years (2012 to 2018) under an agreement dated 10 August 2012. The “bouquet of rights” had purportedly included “mobile activation rights” and ”mobile rights” for the franchisee within a 72-hour period following a match. This introduced the so-called “Hot News” doctrine to Indian cricket i.e. exclusive rights to convey information while it was still “hot”.

In October 2012 STAR TV (supported by the BCCI) sued Piyush Agarwal (founder of the website Cricbuzz), mobile company OnMobile Global Ltd., and telecommunications provider/broadcaster Idea Cellular Ltd. for offering services which included ball-by-ball updates on mobiles. Many similar services are offered in the UK for football, cricket, tennis, etc. although these are often by over/game or every few minutes. The defendants alleged, inter alia, that their freedom of speech (guaranteed by Article 19 of the Indian Constitution) would be restricted if an injunction were granted against them.

In a judgment on 13 March 2013, Justice M.L. Mehta (sitting as a single judge of the Delhi High Court) – while noting the importance of “the general public [] hav[ing] access to the information arising from cricket matches, more so in a cricket crazy nation such as ours” - considered that STAR TV could “monetiz[e] the information arising from an event” insofar as it concerned the specific minute-by-minute reporting and it therefore had a common law action for unjust enrichment against the defendants. Indeed, the defendants were said to be “free-riding” on information collected at the claimant’s “expense, effort and skill” (at [32] and [52]). STAR TV was granted an injunction to prevent the provision of these services.

However, a full formation of the Delhi High Court overturned this decision by an order of 30 August 2013. Justices S. Ravindra Bhat and Najmi Waziri held that “[n]either Star nor BCCI can be permitted to say that mentioning “mobile” rights and auctioning them, would ipso facto legitimize the parcelling away of [sic] right to disseminate information, without first establishing that the right or exclusive domain over such rights existed in the first instance“ (at [56]). The Justices also noted that “such an injunction would tend to insidiously, and in a creeping manner, denude the fundamental right to free speech and dissemination of topical information to the public” (at [73]).

The matter has now been appealed to the Supreme Court of India, which will hear the case finally on 4 March 2014.  In the meantime, the Court has required that the three defendant companies (1) deposit Rs. 10 lakh (i.e. approximately £10,000) per match before they begin disseminating the scores (2) keep records of their revenues from the SMS alerts and (3) file monthly accounts with the Supreme Court.

When seen in context, this interesting decision appears to reflect a growing trend to which rights holders and associations alike should be sensitive.

Within the Indian context, in Barmi v Board of Control for Cricket in India (Case No. 61/2010, 8 February 2013), the Competition Commission of India (“CCI”) took a narrow approach to exclusivity in light of the particular responsibilities of the BCCI as licensor of cricket matches in India. The complaint alleged that BCCI had abused its dominant position by, inter alia, refusing to sanction a proposed new private league, the Indian Cricket League. In its commercial agreement with the Indian Premier League, the BCCI had committed itself to not sanctioning any competing leagues. The CCI concluded that by doing so, it had breached the prohibition on abuse of dominance in section 4(2)(c) of the Indian Competition Act 2002. In particular, “by virtue of its role as the custodian of cricket vested with the rights to sanction a cricket event thereby facilitating the success of the event”, BCCI had special responsibilities. Moreover, the Commission felt that “[t]he game of cricket and the monetary benefits of playing professional league matches must be spread out and not concentrated in a few hands, in a few franchisees” (at [8.59]).

Other cricketing authorities also appear to be seeking to broaden access to media coverage of the sport (as in the radio sector in Australia).

This is not without precedent in Europe, however. As Tom Richards noted in his recent post, the EU’s approach to exclusive media rights is similarly supportive of the end user and commercial intermediaries. The Murphy case has vividly illustrated the point in the context of competition law (and the internal market). The EU has also legislated to guarantee certain ‘information’ rights in the sporting context – e.g. Article 15 of the Audiovisual Media Services Directive requires exclusive broadcasters to provide short extracts of their coverage for use in news reports at a charge limited to the ‘additional costs directly incurred in providing access’. In January of this year, the Grand Chamber of the Court of Justice of the EU was faced with a claim by an exclusive rightsholder (Sky Austria) that this amounted to an unlawful breach of its property rights (see Case C-283/11 Sky Österreich GmbH v Österreichischer Rundfunk, nyr, (22 January 2013)). The Court balanced this against the public’s freedom to receive information and media pluralism. It concluded (at §§51-52) that any interference with the rightsholder’s property rights was justified in order “to give priority, […] to public access to information over contractual freedom” (at §66) and did not go beyond what was necessary.

With this context in mind, the Delhi High Court’s later Order is perhaps unsurprising. It reflects a judicial push-back against exclusive licensing in the sporting context that could dramatically devalue the exclusive packages negotiated with sporting associations. This challenges the traditional view (still taken by many European sporting bodies) that, as the Explanations to ICC rule 32.3 suggest: “the generation of commercial income” is “for distribution throughout the sport”. Efforts to ‘monetize’ the organisation of sporting events should therefore be sensitive to the range of challenges they are likely to face, without careful tailoring.