Football fixtures finally freed from fees

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

On Monday 12 November 2012, the long running claim brought by the English and Scottish professional football leagues ("the Leagues"), their licensing agent, Football DataCo ("FDC"), and its sub-contractor PA Sport ("the Claimants") was brought to an end. The Claimants told the Court of Appeal that following the European Court of Justice's decision "CJEU Judgment") reported here (click here) they accepted they did not have rights in the Fixture Lists enabling them to charge licence fees for use of their fixture lists - some four years after the case had begun.

At the hearing, the Court of Appeal:

1. Declared that: Neither database copyright nor sui generis database rights subsists in the EU in Fixtures Lists.
2. Ordered Football DataCo, PA Sport (FDC's sub-contractor) and the Football League Limited to carry a message on their respective websites for a month clarifying the position in the following form: Following the decision of the Court of Justice of the European Union dated 1 March 2012 in Case C-604/10 Football Dataco Ltd v Yahoo! UK Ltd & Others (click here), it has been determined that neither copyright nor sui generis database rights subsist in the EU in fixture lists for the English and Scottish football leagues."
3. Ordered that the Claimants pay the costs of the Defendants (namely Yahoo! Stan James, Stan James (Abingdon) and Enetpulse).

Analysis

The Claimants suggested at the hearing before the Court of Appeal that they might find a way to create fixture lists in a new way in future that attracted protection. However, they were unable to advance any methodology where that would be the case.

In our view, it is very difficult to see how any new methodology would subvert the finding in the CJEU's Judgment that the activity conducted by the Claimants in creating the Fixtures should be disregarded when assessing whether the Fixture Lists merited protection.

Impact

Looking forwards, permission is no longer required to use the Fixture Lists and therefore licence fees need no longer be paid.

We anticipate that those who have been paying licence fees for use of the Fixture Lists may wish to seek repayment of fees paid, particularly where fees have been paid since the CJEU judgment was published on 1 March 2012, when the law was clarified. Any ability to reclaim licence fees will turn on its facts. At the hearing the Claimants stated that they would not be offering repayment of any licence fees paid prior to 11 October 2012.

For further information please contact Paul Stevens, who acted for the Defendants in this matter.