JUNE 2, 1997
An important TV test case
THE German television company AE TV-Cooperations GmbH of Heidelberg, which is in dispute with the FIA over the televising of the FIA European Truck Racing Cup, has lodged a formal complaint with the European Commission against the FIA and Bernie Ecclestone's ISC company, claiming that they are both in violation of Articles 85 and 86 of the Treaty of Rome which prohibit cartels and the abuse of a dominant position in commerce.
There is already a law suit in Germany between AE TV-Cooperations and the FIA and ISC. The court is expected to give a preliminary judgment this week.
The new complaint is not restricted to truck racing but is a general challenge to the FIA's authority to market the TV rights of all international motor sports events. Such legal action will be watched very carefully by the F1 teams, which are in dispute with the FIA over the Concorde Agreement.
The complaint will be dealt with by the European Commission Directorate for Competition, which is based in Brussels. The Commission announced in February that it intends to propose a Directive (effectively a draft bill) to assure that major sporting events in Europe are broadcast on public television and not restricted to pay-per-view stations only.
Until recently - when large amounts of money arrived in sport - governing bodies were usually able to do as they pleased as the members had voluntarily subjected themselves to the authority of the governing body and thus did not have a legal case. Money has changed that. The European Commission and the European Court of Justice in Luxembourg have already dealt with cases involving financial issues related to sport and have held that international sport is now an economic activity. The court has even gone as far as to rule that professional motor racing is a business activity and, therefore, is covered by the commercial laws of the Treaty of Rome.
Articles 85 and 86 prohibit agreements which affect trade within the European Community and the exploitation of a dominant position which affects trade between member states.
In several sports - notably football - governing bodies are being challenged over the commercial issues. In Britain the Restrictive Practices Court is campaigning for an investigation by the Office of Fair Trading into Sky Television's deal with football's Premier League, because it believes that the Premier League acted as a cartel in the negotiations.
There have been similar law suits in Holland where Feyenoord took the Dutch Football League to court over the sale of TV rights and in Spain where Real Madrid and Barcelona are currently challenging the Spanish League's right to sell the TV coverage of their games.
The FIA is, however, a powerful international body which is recognized - and has consultative status - with the UnitedÊNations and the Council of Europe. According to our sources at the FIA, the AE TV-Cooperations GmbH case does not present a problem and may even be useful as a test case.
FIA President Max Mosley is not, however, taking any chances and recently had a meeting with Karel Van Miert, the Belgian who heads the European Commission's Competition Directorate.
Going to the European Commission is likely to be a lengthy process. The Commission must first decide if the complaint is valid after which it could be referred to the European Court of First Instance in Luxembourg. This has about 250 cases a year but came up with only 98 judgments in 1995.
If the FIA is challenged and fears defeat, it can always remove itself from the Community and establish itself in Switzerland - which nearly happened a couple of years ago when the French authorities challenged the FIA's non-profit status and tried to tax the federation. The FIA made plans to move to Geneva and the French authorities backed down.
If this were to happen the matter would have to settled by the International Court of Justice in The Hague, the principal judicial organ of the United Nations, where there is an even longer waiting list of cases.
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