The ECA has ordered interim measures against FIFAbased on prima facie
finding of infringements to articles 7 and 8 of the Egyptian competition
lawas it was revealed that those infringements would cause serious and
irreparable damage to the freedom of competition and consumers, insofar
they will prevent consumers from receiving the right to watch the 2018
World Cup Russia under competitive and fair conditions.
The FIFA
mustmake available immediately to the Egyptian National Media Authority
the rights to live broadcast through terrestrial channels 22 selected
matches of the 2018 FIFA World Cup Russia.
On 14 May 2018,the ECA
has received a complaint alleging that FIFA, the sole entity that owns
the right to award licenses for TV broadcasting of the 2018 FIFA World
Cup Russia, infringed articles 7 and 8 of the Egyptian competition law.
After conducting a preliminary inspection, it has been
established,based on the available evidence, that FIFA extended its
agreement with beIN Sports and awarded it on an exclusive basis all
media rights pertaining to the 2018 FIFA World Cup Russia covering
cable, satellite, terrestrial, mobile and broadband transmission across
23 territories and countries in the Middle East and North Africa
including Egypt.However, it was also revealedthat these rights were
awarded in absence of fair, or transparent or non-discriminatory
tendering procedures. It has also been noted that granting the full
range of rights as a single bundled package exclusively to one single
entity for such an extended period of time is contrary to the FIFA’s
established practice in other countries and regions worldwide.
Moreover, the ECA noted that the FIFA contravened its own TV licensing
policy, by virtue of which 22 matches must be made available on
free-to-air terrestrial channels, that include all home team matches,
the opening match, semi-finals and the final. The ECA also noted that
the practices of the FIFA in France, for example,were different from
those in the Middle East and North Africa including Egypt. In France,
the FIFA (after following an open tender) reached a deal with TF1 (the
French terrestrial broadcaster) in 2016 that covers the 2018 and 2022
FIFA World Cups, with arrangements to show 28 of the biggest matches
from those tournaments on a free-to air basis. This deal did not
obstruct the FIFA from reaching a separate deal with beIN sports in the
same country that awarded the latter pay-tv rights of the two
tournaments.
After reviewing the submitted evidence and conducting
the relevant analysis, the ECA is of the position that the FIFA’s
practices in Egypt constitute a likely infringement to both articles 7
and 8 of the Egyptian competition law.Hence, the ECA, on 17 May
2018,sent a letter to the FIFA in order to make known its views on the
complaint. Asthe FIFA did not provide any comments, the ECA, on 31 May
2018, notified FIFA of the initiation of an inspection regarding the
allegations against it and requested its commentson the complaint as
well as some documents pertaining to thealleged infringements.
Nevertheless, the FIFA did not provide, again, the requested information
within the time-limit.
In light of the urgency of the matter and
its significant importance to the Egyptian viewers and market players,
as well as the non-cooperation of the FIFA with the ECA’s inspection,
and having regard to article 20, paragraph 2, of the Egyptian
competition law, as well as to the previous decision of the ECA, the
precedents of the Egyptian’s courts and the international best
practices, the ECA’s Board of Directors considered that the FIFA’s
practices constitute, on the basis of prima facie evidence, an
infringement to articles 7 and 8 of the Egyptian competition law and
that they will impose serious irreparable damage to the freedom of
competition and to consumers insofar they will prevent consumers to
receive the right to watch the aforementioned tournament under
competitive and fair conditions.
Therefore, the ECA’s Board of
directors decided on 10 June 2018 to order interim measures against
FIFA, whereby it shall make available immediately to the Egyptian
National Media Authority, on reasonable financial terms, the rights to
live broadcast in Egypt, through free-to-air terrestrial transmission,22
matches of the 2018 FIFA World Cup Russiaincluding, particularly, the
Egyptian national football team matches, the opening match, three
matches of the last 16 matches, the quarter-finals, the semi-finals and
the final match of the tournament.
It is also worth mentioning that
the practices of FIFA represent a likely infringement to article 34 of
the Egypt-EU Association Agreement as well as articles 16 and 18 of the
Common Market for Eastern and Southern Africa (COMESA)for inflicting a
potential harm to the freedom of competition within the COMESA common
market. Moreover, the Swiss Attorney General is undergoing a similar
inspection regarding very similar practices, which represent likely
infringements to the Swiss Federal Act on Unfair Competition, against
the former and current management of FIFA.
Lastly, the ECA reminds
the public and private entities in Egypt of their obligation to comply
with the ECA's decision and their duty to facilitate the Egyptian
National Media Authority's mission in obtaining all the rights as
referred to in its decision. The non-cooperation of any of these
entities subjects them to legal liability rules regarding this matter
without prejudice to the civil liabilities arising from the
non-implementation of the ECA's decision.
