On 30 April 2010 the Minister for Communication, Energy and Natural Resources announced his intention to add a number of major Irish sporting events to those that must be broadcast free-to-air on terrestrial television. The most vocal opponents to the proposal have been The Irish Rugby Football Union (IRFU). Stephen D'Ardis hits the ruck.
Line Break
The Minister is proposing to exercise powers conferred on him by Part 11 of the Broadcasting Act 2009 (the "Act") to designate a number of sporting events, including Ireland's Six Nations and Heineken Cup rugby games, as "free-to-air" events.
Before making such a designation, the Minister must consider the extent to which the event has a special resonance and a generally recognised distinct cultural importance for the people of Ireland.
Counter-Rucking
The IRFU estimates that, should the proposal go ahead, they would stand to lose up to €12 million per annum in revenue generated from the sale of broadcasting rights for these events. Their argument is that adding the Six Nations or the Heineken Cup to the list of designated events would reduce the pool of broadcasters who can realistically bid for these events. This is due to the fact that only "qualifying broadcasters" are entitled to be offered the broadcasting rights to designated events by the existing rights holders. Qualifying broadcasters are defined as broadcasters who provide free television coverage of the event to at least 95% of the State's population. Therefore, designation will inevitably reduce the pool of potential bidders, and the market value of the broadcasting rights.
Another question raised is whether the inclusion of the Heineken Cup and the Six Nations in the list of designated events will create problems with existing contracts for these events between the IRFU and the relevant broadcasters.
The Act provides that qualifying broadcasters may, in certain circumstances, apply to the High Court to obtain rights from an event organiser (such as the IRFU) to provide coverage of a designated event on "free-to-air" television services in the State. Upon such an application, the High Court may direct the event organiser to give rights to the qualifying broadcaster upon such terms as the court sees fit, as well as deciding to whom monies should be paid for the acquisition of rights, and if necessary, to adjust any existing agreement between an event organiser and a non-qualifying broadcaster.
Touch Judge
The Act provides for little or no judicial oversight of the exercise of Ministerial discretion. However, under section 167 of the Act, the High Court may determine the payment that must be made by the qualifying broadcaster to the existing owner of the broadcasting rights, and the existing owner is required to offer these rights to the qualifying broadcaster at a 'reasonable market rate'.
Final Whistle
The Minister's powers under the Act can have far-reaching financial consequences for sports' governing bodies, who have limited grounds to appeal once an event has been designated. In such circumstances, it is important that the Minister exercises his powers fairly and proportionately, bearing in mind not only the public interest, but also the commercial interests of sports' governing bodies and the implications his decisions may have on the funding of sport at all levels.
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