Eleven Sports testing the old guard's reserve

When the lawful exploitation of intellectual property rights is contradictory to government legislation, the legislation normally wins.

Since the 1960s there has been a "blackout" window of broadcasting live football between 14:45 and 17:15 on a Saturday. Early and late kick offs are televised, but the traditional Saturday 15:00 kick off has remained the preserve of the fan in actual attendance ever since.

The blackout actually extends to all football: not just premier league matches. Foreign leagues have games broadcast at that time, and even sell the rights to broadcast them in the UK, but the blackout has prevented anybody actually exploiting that right. Until now.

Eleven Sports has decided that rather than challenge the ban through the courts, it will just ignore it and see what happens. Eleven Sports is an online sports streaming service (think Netflix for sports), and it has the rights to broadcast live La Liga and Serie A football matches in the UK (amongst a plethora of other rights and other territories).

On 29 September 2018 Eleven Sports broadcast Barcelona v Athletic Bilbao, a match that kicked off at 15:15 BST – falling entirely in the blackout period. It has since broadcast during the blackout period again, and says it intends to continue doing so.

Its position is backed by the Spanish football authorities, which say that making football available legally during that period will reduce the number of people using illegal streams.

While that position may sound sensible, the question remains: does broadcasting a match to which Eleven Sports has rights, but at a time that it is not legally entitled to do so, not, by its very nature, make it an illegal stream also?

There is now much chatter about whether the blackout is sustainable. If authorities do not immediately stop Eleven Sports from breaching it, then surely it will not be long before other broadcasters do the same. Once that happens, how long would it be before the Premier League offer to sell another package of games…the previously protected Saturday 15:00 matches?

Surely from a policy perspective a balance has to be struck. On the one hand you have football clubs (Leeds United is particularly passionate about the issue) saying that televising more games reduces attendances. On the other, you have broadcasters saying that the blackout drives fans with no intention of attending games to watch illegal pirated streams from abroad.

While the blackout was certainly a workable solution to keep attendances high in the 1960s, does it really have any impact now, when fans who have decided not to attend can quite easily watch an illegal stream in high definition in the comfort of their own homes anyway?

We will wait to see how this issue plays out, and whether there are any significant consequences for Eleven Sports.

If you have any questions on the above, please do not hesitate to contact the team at McDaniel & Co. on 0191 281 4000 or legal@mcdanielslaw.com.