Media: Pay up, pay up and play the game
The battle for the broadcasting rights to football is in full pitch. Jonathan Miller considers the strategies of the two opposing sides
Tuesday 23 February 1999
Chichester Rents is not one of your period courtrooms with red judges and resonating oratory but a large, low-ceilinged, open-plan office floor stocked with grotty civil- service furniture. The room is stacked to the ceiling with bundles and wired up for computers. The venue is usually used for complex fraud cases. The three judges preside from a small, unprepossessing dais. There are no wigs or gowns. It is all conducted in the dignity of fluorescent lighting.
Within this unpromising arena, the legal teams (players from all sides wearing a near-identical team strip of various subtle shades of grey and pinstripe) and a supporting cast of solicitors, locum economists, assorted experts and spin doctors, are playing for very high stakes. The case essentially concentrates on whether football clubs should strike television rights deals individually or be allowed to negotiate collectively, as they do now, under the umbrella of the Premier League (the current four-year deal between Sky/BBC and the League is worth pounds 743m).
So far, the three judges (Mr Justice Ferris, deputy high court judge, the man with the whistle flanked by two lay assessors in the role of assistant referees) have heard 40 witnesses, all of them called by the Premier League. The enormous witness list, including such luminaries as Ken Bates, the Chelsea Chairman, and David Dein, the boss at Arsenal, has been a big show of force by the league. Occasionally, there is a headline, such as: "Bates dismisses claims from 'couch potato' fans that it is too expensive to attend games."
More often, the league, which has the burden of showing that its conduct is in the public interest, has played a traditional England strategy, kicking arguments up the field and hoping that some of them will get through.
They are defending a tidy little arrangement in which, if the OFT prevails, the Premier League has the most to lose and in which the fans, currently limited to a strict ration of television determined by the cartel, have the most to gain.
The case of John Bridgeman, the director-general of fair trading, versus the arraigned giants of the football and broadcasting establishments, is important to the future of both television and football. The significance of the case is greater because it comes as the Monopolies and Mergers Commission is separately considering BSkyB's offer to buy Manchester United Football Club, the biggest team in the league. The MMC report is due on 12 March.
Bridgeman, a Welsh-born former aluminium company executive whose academic training at University College Swansea was in chemistry, not economics has never the less proved a tenacious opponent. Since his appointment to a five-year term as director-general in 1995, he picked up on an open OFT investigation of the Premier League that began in 1992, at the time of the original deal with Murdoch and the BBC. "Any other business acting in this way would be subject to competition law and I see no reason why the selling of sports coverage should be any different," he said after taking office. A brave position: football is free with abuse and Bridgeman has become its bete noire.
Mr Bridgeman's case is that the League and the Broadcasters are acting as a cartel responsible for inflating costs and prices. The result has been to put BSkyB in a dominant position in the supply of sports channels in the UK, and to inhibit competition in the pay-TV market in which premium sports programming is the main driver. The result, for the fans, is that many find it impossible to get a ticket to a sold-out stadium. Nor are they able to follow their team regularly on television. Only 60 of the 380 Premiership games are broadcast live on BSkyB; the highlights of only three games are available to the BBC's Match of the Day.
In fact, there are cameras recording the action at all of the Premiership grounds; it is simply that viewers are not allowed to watch. Instead, while Britain's top grounds are 94 per cent sold out on a typical Saturday and with waiting lists of years for tickets, most fans are reduced to watching Sky Sports Centre, in which sports journalists and superannuated footballers watch games on closed-circuit, and describe them to viewers who are not allowed to see for themselves.
The Premier League's case is that this is good for us and that there is no scope for variation. It is their claim that any more football would destabilise the competition of the Premiership, forcing weak teams to the wall and strengthening the top teams to the extent that they could not be challenged. Only through the collective selling of rights, and benevolent distribution of the proceeds by the league itself, the league insists, can the clubs and sporting competition be sustained.
The stakes are high and, with the advent of digital television, likely to grow dramatically greater. Of the current four-year, pounds 743m contract, BSkyB pays pounds 670m for the right to broadcast 60 games live with some highlights, and the BBC pays pounds 73m for the right to broadcast highlights. This arrangement appears to suit BSkyB, the BBC, and the Premier League rather well. Bridgeman's case is that more games could be shown on more platforms by more broadcasters. He argues that there could be both more regional choice and, in particular, that games could be made available on a pay-per-view basis to fans who would otherwise have no opportunity to see their team - in effect, an additional, electronic, digital, TV turnstile at every Premier ground.
Once in a while, reporters show up: last week, to record the cameo of David Mellor, BBC Radio Five Live sports presenter and head of the Football Task Force, to which job he was appointed by his fellow Chelsea supporter, Tony Banks, the New Labour Sports Minister. Mellor spoke not as chairman of the Task Force, a quango which claims to represent the interests of fans, but merely as the holder of a pounds 2,500 executive season ticket at Chelsea. "I have my own views, but not out of line with fans' opinions," he said.
Mellor's performance got good headlines. He affected exasperation at the impertinence of the Office of Fair Trading. He told the OFT's lead QC, Geoffrey Vos, that critics of the current arrangements "didn't know what they're talking about". The notion that income from television rights could be otherwise distributed was "a presentational refuge point you've taken which is not convincing". Other arguments, though, may finally prove more persuasive.
Over the next few weeks, the Court is to hear witnesses called by BSkyB and the BBC, as well as expert witnesses called by the OFT. Dependent on the results of the MMC inquiry into BSkyB, the parallel OFT case could see a changed geometry. Among the significant forthcoming witnesses could be Michael Grade, a Charlton Athletic fan but also a professional broadcaster who knows what it is like to be cut out of a cosy cartel. This could be Grade's chance to play a blinder, with an imaginative, argumentative dribble to the mouth of the goal. He could find himself winning the cheers of the crowd, even Arsenal fans, if he could offer a way to let more supporters get a look in.
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