The Government could still designate the forthcoming home international soccer matches as events of major national importance, despite the FAI's €7.5 million deal with Sky, argues Roddy Flynn
The debate following Sky's acquisition of the TV rights for the Irish soccer team's forthcoming home matches has been framed in terms of a "bad" FAI turning its back on a "weak" RTÉ. Yet such a simplistic construction ignores the political context in which this deal has come about. The real explanation can be found in a consistent lack of political will to place viewers' interests over those of sporting and broadcasting organisations, a point which the Government seems at pains to try to disguise.
After Friday's announcement, both the Minister for Communications and Natural Resources, Mr Ahern, and, latterly, the Taoiseach, strongly criticised the deal. Both argued this was essentially a private business transaction and was therefore out of their hands. They conceded that an EU directive transposed into Irish law in 1999 (as the Broadcasting Major Events Television Coverage Act) did allow the Government to draw up a list of "events of major importance to society" that had to be made available on a free-to-air basis.
But again both gloomily concluded that the 1999 legislation was either legally risky, that it would not permit whole tournaments to be designated or that, in any case, the approval of the bodies which owned the rights to such events had to be secured before the list could be finalised. None of those claims is definitive, in my opinion.
It remains possible, even now, for the Minister for Communications and Natural Resources to retrospectively designate the forthcoming home internationals as major events. Nothing in the legislation prevents such an action. Indeed if one reads Section 4 of the Act it appears that the express intention of the Act was to "retrieve" those events which had been acquired by subscription broadcasters. It is true there are some slight ambiguities in the Act (presumably the "risk" the Minister referred to) but then no legislative proposition is ever entirely without such ambiguity.
What's more, it is definitively inaccurate to state that the legislation prevents the designation of whole tournaments as of "major importance". Precisely this has been done in those EU countries which have so far drawn up lists: in Italy, in Germany, and in the UK, the entire European Championship and World Cup tournaments were so designated. Denmark went one step further, adding the qualifying matches to their list, exactly the games that Sky have acquired in the Irish context.
Finally, although the 1999 Act requires that the Minister "make reasonable efforts" to consult the organisers of events, the Minister is in no way legally obliged to have their approval. Indeed to suggest that this might be so is to impose an interpretation on the legislation which is precisely opposed to its original intention.
The 1999 legislation was a response to the ongoing transformation of the market for sports rights. The Irish legislation transposes a 1997 EU directive, popularly called "Television Without Frontiers II". That directive noted that increasing competition in European broadcasting raised the possibility that sporting organisations might sell their television rights to the highest bidder regardless of whether it was a free-to-air or subscription channel.
The directive specifically argued that EU citizens should, as a matter of right, have wide access to television coverage of "national or non-national events of major importance for society". Thus the directive empowered EU member states to draw up a list of events which had to be made available on a free-to-air basis. This is also the sole function of the 1999 Irish legislation. The stated position of the Government at present, however, is that to actually use this power would undermine the financial bargaining position of sporting organisations.
Of course it would - the Act is explicitly designed to ensure that sporting organisations cannot place their financial interests above that of the right of citizens to watch national cultural events. Given this, we're left with one of two conclusions - the Government either genuinely doesn't understand the short (five pages) piece of legislation it drew up, or has been misinterpreting it to avoid stating the real reasons for the lengthy failure to use the legislation.
Given that their public pronouncements suggest that neither the GAA nor the IRFU is interested in selling screening rights to a subscription channel, one is left with the question of who benefits from the failure to draw up a list of protected events? One obvious candidate - assuming Dermot Ahern fails to take any corrective action - is Sky Sports, which can expect a substantial return on its rights investment in the form of new subscriptions.
Sky, of course, is part of a larger media organisation, two of whose newspapers - the Sunday Times and the News of the World - distinguished themselves at the weekend by actively supporting the FAI/Sky deal. Is it too cynical to suggest that Government concerns about editorial backlashes from the various News Corporation outlets may partly account for the former's reluctance to utilise a piece of legislation it drew up, or is it simply unwilling to take on vested interests such as the FAI?
Dr Roddy Flynn is a lecturer at the School of Communications, Dublin City University.