Islj 2009 3-4 - TMC Asser Instituut

equired coverage of 90% is not met. Given the fact that the phrases
‘basic package’ and ‘large part of the public’ are two cumulative conditions,
digital-only channels distributed by all aggregators - even if the
digital package is qualified as basic package - are unable to broadcast
listed events exclusively since they do not reach the required part of
the public.
4. Conclusion
The introduction of digital television is often hailed as a new revolution
in today’s media landscape as it provides a lot of new opportunities
for content producers, advertisers and viewers (e.g. on-demand
services, better picture quality, more channel choice, interactive applications).
Although digitisation may have a disruptive impact on the
current business and revenue models of the broadcasting industry, the
majority of households is reluctant to switch to these digital television
services and prefers watching analogue signals. In their attempt to
convince these viewers to migrate to digital television, aggregators are
collecting a very attractive and appealing bouquet of content, which
is preferably not available in the offer of other platform operators.
This offer contains a basic package with especially generalist channels;
some of them can also be viewed on analogue television, others are socalled
digital-only and can be accessed by a digital decoder. Moreover,
television operators are keen to provide successful content such as
major sports events on premium channels that are only accessible for
end-users by paying an extra subscription fee.
As operators are likely to lock sports content behind a digital
decoder, households unable of unwilling to migrate to digital television
services could be deprived access to major sports events, which
may endanger their right to information and cultural citizenship.
Therefore, the list of major events mechanism has been introduced to
guarantee the public to watch major sports events on television without
paying extra for it. Although this provision has not been subject
to changes while revising the TWF Directive in 2007, the Flemish
Government recently decided to review the provision to create more
legal certainty amongst broadcasters and television operators. From
now on, major events are no longer guaranteed by ‘free-to-air television’
but by the ‘basic package of the different aggregators’. It seems
like the Flemish Government has finally upgraded its legal framework
to the digital television ecosystem, however, some questions arise as
this revision is likely to fit the incumbent digital television operators
like a glove.
In first instance, we can raise the question whether the public’s
right to information has actually been fortified by this new provision.
In our view, the public’s right to information has rather been eroded.
Although the provision does not allow digital television operators to
schedule sports events on digital-only channels that are not accessible
for the analogue television households, the real practice shows a different
light on this issue. Nevertherless, with the provision, the
Flemish Government has tried to push the uptake of digital television
services, which is expected to reach a penetration of 85 to 90% in
2015. By programming major (sports) events on digital-only channels,
platform operators hope to convince the analogue mass to switch to
digital television services. Until 2015, analogue households can only
fear that they will not be excluded from the coverage of some major
events that are listed.
Secondly, the Flemish Government aimed to create more legal certainly
amongst broadcasters and platform operators. However, as the
Flemish Media Decree and the Explanatory Memorandum do not
provide clear definitions of what is actually meant with ‘basic package’
and ‘different aggregators’, the question rises whether this amendment
is really a step forward. In this article, we have questioned the real
meaning of these two concepts and we have found that although the
new provision aimed to create more legal certainty, the revision has
rather caused even more vagueness and uncertainty than there was
before…
❖
Limits on Foreign Professional Players Competing in
the Russian Federation: Problems and Prospects
by Mikhail Prokopets*
1. Introduction
The topic of limiting the number of foreign players 1 in Russian sport
gains ever greater popularity each sporting season. Unfortunately, this
is to a large degree in response to scandals. Football lovers still have
fresh memories of a situation, surrounding the scandal that flared up
when Zenit FC violated the foreign-player limit in a 2009 Russian
Football Championship match against FC Lokomotiv. Another hot
debate, about the value of introducing a Russian Hockey Federation
limit on foreign goal-minders, only recently died down.
Supporters and opponents of foreign-player limits are well represented,
and both sides can list solid and well-founded arguments,
both in favour of their own viewpoints and to counter the opposing
views. The arguments of those in favour of a limit on foreign players
appeal to the patriotism of football supporters, who want to see and
empathize with a “a guy from the next street”, and not a foreigner,
who “doesn’t even know any Russian”, even on condition of the latter’s
outstanding sporting ability. Globalization has penetrated many
sectors of the economies of the world, covering almost all fields of
human endeavour, and the opponents of limits counter: why should
sport - a mirror of life - be any exception?
* YUST Law Firm, Moscow, and former
Senior Legal Counsel to the Football
Union of Russia.
1 The established [Russian] sporting term
is legioner, meaning a foreign athlete or
player.
We will refrain from judging who is right, or whose arguments are
better grounded. However, considering the fact that the arguments of
supporters of a limit are reflected in the regulations of the Russian
Football Union (RFU), and in the regulations of the Continental
Hockey League (CHL), it appears that this group can now celebrate
victory.
The idea of a limit is not a Russian invention. As regards football,
limits were in place in many European countries until they started to
contravene European legislation. For example, after rulings on lawsuits
by Bosman and Simutenkov, which will be discussed below,
European sporting federations lost the right to independently establish
limits. The reality is now such that migration, labour and social
policy with respect to foreign citizens is the exclusive prerogative of
the state, and not of social organizations - a category which includes
sporting federations.
Nevertheless, despite the non-conformance with European legislation,
the topic of limits is becoming ever more popular in European
football, too. Senior football officials have recently made statements
ever more frequently about the need to introduce a limit, thanks to
the evident advantages for the sport.
In 2008, the FIFA congress approved of a proposal by its president,
Sepp Blatter, to introduce a mandatory limit on foreign players in
clubs, known as the “6+5” system. The following new rule is to be
introduced from 2012: at least six players who have the right to play
A RT I C L E S
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