The courts are likely to end up adjudicating on the Government's decision to ring-fence major sporting events for terrestrial television, writes Dr Roddy Flynn
The publication by the Government of a provisional list of sporting events which it is seeking to protect under the Major Television Events Coverage Act is welcome. However, this provisional list is a small step in the overall process of safeguarding public access to major events, and speed is of the essence to ensure that even some of the home and away games currently under dispute are made available on a free-to-air basis.
The Government has said it intends to carry on discussions with the relevant sporting bodies until the end of August. Under the existing legislation the Government is required to consult with those bodies before settling on a list of designated events. Yet given that such discussions have already been going on for nearly three years, it is difficult to see what a further six weeks of talk can achieve. The collective dismay of the FAI, GAA and IRFU in the wake of Wednesday's announcement of the games designated makes it clear what the sporting organisations are likely to say in any further consultations. In short, the Government could legitimately regard the consultation process as "done and dusted".
This is particularly true given that there are several lengthy processes to be gone through once the consultation stage is concluded. First, the Government must publish a notice in a national paper listing the events it is designating, and it is obliged to invite comments from the public on that list. There is nothing in the legislation determining the duration of this secondary consultation period but it seems inconceivable that it could take anything less than a fortnight.
Even after the public's comments are taken into account, the list of events is still not definitive. It must then be passed to the European Commission which, in turn, is required to seek the approval of a "contact committee", a group of representatives from the other EU members states.
At the same time the Commission itself examines the compatibility of such lists with European Community law. This process is usually a formality: of the five members states which have formally lodged lists only one - Denmark - has had to alter its submission to secure final approval. However, the process of acquiring EU approval can take up to three months.
The need for speed also derives from the strong possibility that this matter may ultimately be decided in the courts. The experience of a similar legal dispute over listed events involving a Danish broadcaster and the UK Independent Television Commission (ITC) highlighted potential difficulties.
IN mid-2000 a Danish subscription broadcaster, TV Danmark, acquired the rights to five Danish World Cup qualifying games. These games were protected under the Danish equivalent of the list the Irish Government has now provisionally drawn up. As it happened, TV Danmark was registered as a UK company; it thus fell to the British ITC to insist that the games be made available on a free-to-air basis to Danish viewers.
Although the ITC was eventually successful after the case went to the House of Lords, three of the five games had already been played (and screened on the subscription broadcaster) by the time the final legal judgments were delivered. Only the remaining two games were screened on a non-subscription basis.
A similarly lengthy court battle might ensue in the Irish context, given that it is extremely unclear how such a case might pan out. The Attorney General, Mr Rory Brady SC, is now clearly of the opinion that the Government has "options", although the precise legal basis for those options has not been spelled out. By the same token, the FAI is equally adamant that its legal advice rules out any rowing back from the deal to sell Ireland's home internationals to Sky.
What the issue may ultimately hinge upon is the extent to which the caveat emptor principle can be said to apply in the case.
The FAI contends that there was no legal obstacle to doing a deal with Sky two weeks ago and that to introduce one retrospectively would contravene constitutional property rights. Such a position can only be sustained if the FAI (and other sporting bodies) were unaware of the 1999 legislation enabling the State to ring-fence major events.
The FAI clearly was aware of the legislation. And since the television rights have been under discussion for some years, it could be argued that both the soccer body and Sky Sports have been under notice that the rights they were negotiating were not definitively available and that any deal specifically for subscription rights was somewhat shaky.
Despite this, the relevant sporting organisations have behaved for the past three years as if they were confident that the Government would never actually do what it eventually did on Wednesday: invoke the 1999 legislation to draw up a provisional list of designated games.
Much has been made by the FAI and more conservative commentators of the issue of property rights in this case. Yet the 1999 legislation is based on an identification and protection of a second set of rights - those deriving from citizenship. Such rights are never givens and must be fought for. The question the courts may ultimately adjudicate on is how to balance property rights against such citizenship rights.
Dr Roddy Flynn lectures on media policy at the School of Communications, DCU