Steve Davies says that dividing TV deals unequally would make football less competitive but it could also be a legal minefield

Ian Ayre, the managing director of Liverpool, quickly qualified his reported assertion that his club should sell its own overseas TV rights and keep the income. He now says he meant that they should be sold collectively but the income divided on the basis of a team's popularity, in terms of the number of times their games are featured. Clearly he was under pressure to modify his stance, given that even the other clubs who could have benefited from the move were against it. When Ayre heard Chelsea chairman Bruce Buck condemning his plan he must have realised he was on his own.

The general response was heartening, with universal recognition outside Anfield (or possibly Ayre's office) that the  competitiveness of the Premier League, the quality of players it attracts and its fan culture are its greatest strengths.

However, some legal issues are thrown up by Ayre's plan. TV rights have always been regarded as a property right, in essence. A football club control them because they decide who is permitted to come into their stadium to film the game. There is no independent existence of TV rights beyond that. That was demonstrated some years ago by Bill Cayton who, as well as managing boxers such as Mike Tyson, built up a huge library of boxing footage. Working at a time when the concept of TV rights was in its infancy, he sought and obtained permission from the arenas where boxers such as Rocky Marciano and Sugar Ray Robinson were fighting to film their bouts. When he then sold the whole archive to Disney in 1998 for what was said to be over $100 million (£620,000), people involved in those fights complained that they weren't his rights to sell. They could do nothing to stop it because he had been given permission to go to the premises and film the action.

Understanding of TV rights in sport has become vastly more sophisticated since then. But they are still considered to be based on the principle that the entity that gives or refuses permission to come into a stadium to film owns the TV rights. Although, I 
wonder if that still holds good.

Take Ian Ayre's example, of Liverpool being much more attractive to foreign viewers than Bolton. It is accurate as far as it goes, but TV networks showing Premier League games overseas do not sell matches as "Liverpool match, Sunday 10am" but as "Liverpool v Bolton, Sunday 10am".

The Bolton brand is also being used to sell the product. If Bolton objected to receiving zero payment for overseas rights from their game at Anfield they could throw legal obstacles in Liverpool's path, such as trademarks and copyright. Each club's badge is registered as a trademark, and it is an infringement of the Trade Marks Act to use a "trademark identical to those registered while trading". So, if Bolton's badge was used in the broadcast, they might successfully contend that their trademark had been infringed, in a similar way as to how Sky plan to use their own onscreen logo to protect their business, in light of the case the pub landlady Karen Murphy won over the Premier League in October.

The fact that the team's badge appears on their shirt is another legal obstacle. The Bolton badge will come into shot unavoidably. Liverpool might run the argument that it is not being used as a trademark. But when the product being sold is "Liverpool v Bolton", that could be a tricky argument to sustain. Copyright could trip them up too. Many, if not all, clubs will have copyright on their club badge, as well as holding a trademark on it. Clubs sometimes redesign their badge to establish a new copyright, as Arsenal did in 2002, when they changed their cannon and turned it around to face right.

Showing the badge on the players' shirts would infringe that copyright. One of the defences to infringement of copyright is incidental inclusion but, again, that defence would struggle when the copyright relates to the object of the broadcast. As TV rights in Spain have been sold separately for some time, it would be interesting to know whether the Spanish clubs disadvantaged by that have examined the possibility of challenging  Real Madrid and Barcelona's entitlement to sell their own rights

So if Liverpool pursue the goal of owning and controlling their own overseas rights (which, if they did successfully, would inevitably mean doing the same thing with domestic rights) they will find a lot of obstacles in their way. Which should give some comfort to those of us who think the Premier League should be striving to become more, rather than less, competitive.

From WSC 298 December 2011

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