The Comesa Competition Commission on Sports Media Rights

Following through with Competition law and sports from my piece last week, this column dissects another decision, a seminal and groundbreaking one in Africa from the Competition legal framework at the Common Market of East and Southern Africa (Comesa) that came out earlier this year.

In 2016, the Confédération Africaine de Football (Caf) got into a deal with Lagardère Sports for the broadcasting and marketing of Caf football competitions on the continent.

Competitions like the Africa Cup of Nations, Caf Champions League, and the Caf Confederation Cup among others. This deal granted Lagardère Sports exclusive rights. Lagardère Sports subsequently sub-contracted these rights to beIN Sports.

This matter was brought to the attention of the Comesa Competition Commission (CCC) which conducted an investigation into whether the said agreements amounted to anti-competitive business practices.

The CCC has jurisdictional purview over anti-competitive undertakings and practices within the Comesa Common Market; it monitors and investigates such matters.

The CCC found that the agreements between Caf, Lagardère Sports and beIN Sports were anti-competitive and fined each of them USD 300,000, for engaging in anti-competitive business practices.

The CCC’s decision is quite monumental in African Competition law as it was the first time that the CCC imposed a financial penalty on parties for anti-competitive business practices.

It is not new for Caf and its exclusive media deals to be contested before the CCC. In 2007, Caf executed a similar agreement with Sportfive for eight years, which was renewed for a further 12 years.

The matter went before the CCC which issued a preliminary findings report impeaching the undertakings between Caf and Sportfive, Caf moved quickly and negotiated a settlement and even went ahead to terminate the agreement with Sportfive.

Among the concessions that Caf made was to not to include clauses providing for the right of first refusal with respect to renewal of such contracts, Caf also undertook to see to it that going forward, such contracts would be awarded through an open and transparent tender process and that exclusive media rights agreements would not go longer that four years. Ironically, it is that same Sportfive that has since transitioned into Lagardère Sports.

It is against that background and this being not the first time that allegations of anti-competitive behaviour were hovering over Caf that perhaps the CCC brought the hammer down hard on the continental football body.

Especially because the same restrictive business practices that Caf committed itself to rein in seem to have reared their ugly head again in this Caf- Lagardère Sports and subsequently beIN deal.

The CCC’s Committee of Initial Determination found that the lack of an open tender process was anti-competitive and the durations of the exclusive Agreements unjustifiably too long and would distort competition

The CCC re-echoed the directions it had given Caf in the Sportfive matter. It ordered Caf to ensure that all future media rights are awarded through an open, transparent, and non-discriminatory tender process; all exclusive media rights be awarded for only four years and only be extended with the CCC’s permission; media rights be offered as separate packages and that no one should be allowed to purchase all of the media rights except under justifiable grounds with the authorization of the CCC.

The CCC finally ordered Caf to ensure that the media rights agreement with beIN is terminated on the 31st of December, 2024.

There are many lessons for the handling of sports media rights especially for local sports governing bodies from this decision, takeaways for the concept sports autonomy and whether it is still a viable one in this day and age, but most importantly as was the title of the column last week, competition law could be the magic wand for sports.

Ojakol is a Sports Lawyer, Partner at Matrix Advocates, and Law Lecturer at IUEA

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