NBA and English Premier League discuss commercial cooperation

The Premier League, the English soccer competition, and the NBA, the American national basketball association, are discussing a commercial cooperation. Both competitions are generally considered to be the most popular sports competitions in het world. Together they want to learn from each other’s strategies and expand to the emerging market of Asia.

According to the Financial Times, representatives of both competitions have conducted negotiations with respect to this cooperation. David Stern, commissioner of the NBA, admits that the Premier League runs ahead with regard to attracting foreign investors and refers to the Russian, American and Middle East investors in English clubs.

Stern furthermore reveals plans of an expansion of the NBA to Europe and seems strongly convinced that the financial sound NBA-competition will appeal to potential franchise owners outside the United States. From a legal point of view, such expansion raises interesting questions. Marc Edelman, guest contributor on this site, recently published an excellent article on this topic, in which the differences in operation structure and competition law (and the consequences thereof) are explained. In this article he furthermore focuses on age and education requirements together with the drafts and reserve system.

Considering an expansion of the NBA to Europe, among others, the following issues must be dealt with:

• Specific regulation on broadcasting rights in the EU: the European Commission has set forth the main principles in relation to broadcasting rights in some recent decisions. The Commission accepted the joint selling of sport media rights by football associations on behalf of football clubs (as opposed to the sale of these rights by the individual clubs themselves), provided that certain conditions were satisfied. These include among others the sale of sport media rights through open and transparent tender procedures, a limitation of the rights' duration and the breaking down of the rights into different packages to allow several competitors to acquire rights.
  
• The White Paper on sports: a key document of the European Commission dealing with the strategic orientation of the role of sports in the future EU. This document states several examples of organizational sporting rules that are not likely to offend EU Competition Law, provided that their anti-competitive effects are inherent and proportionate to the legitimate objectives pursued: rules fixing the length of matches or the number of players on the field of play; rules concerning the selection criteria for sporting competitions; rules on 'at home' and 'away from home' matches; rules preventing multiple ownership in club competitions and rules concerning transfer periods.
  
• Differences in doping regulation: the WADA code has recently been introduced for all European professional sportsmen. It is being discussed whether the whereabouts imply a breach of the European privacy laws, namely, the right to privacy and family life under the provisions of article 8 of the European Convention on Human Rights of 1950. Legal challenges under Data Protections Laws and the EU Working Time Directive are being considered.

At the moment, professional sports are considered to fall within the scope of the EU Treaty. Discussions on the specific nature of sports, however, are likely to be held in the next months or years. The Commission has agreed, together with the International Olympic Committee and the major international sports bodies, to discuss the specificity of sports on the principle of theme-by-theme discussions. Topics to be addressed include anti-doping, mobility and nationality, volunteering, professional-amateur sport relations and funding. Rumors have spread that the Commission is considering to agree on the very specific nature and to put sports outside of the scope of European regulation. Obviously such specificity would facilitate (the legal problems of) a possible expansion of the NBA.