All the questions
Marketing of sports events
i Types of rights and ownership of rights
Broadcast rights are arguably the most valuable and lucrative rights sports organizations have to generate revenue from a sports league. For example, in December 2021, the ARLC signed a five-year broadcast rights agreement (starting in 2023) with Channel 9 (another free-to-air commercial station), Foxtel and Sky NZ (a New Zealand television station by subscription), which is worth around 2 billion Australian dollars.36
Additionally, Australia has enacted “anti-siphoning” laws, which provide a list of events that must be made available to the general public free of charge.37 This means that in practice, subscription TV providers, such as Foxtel, are prohibited from acquiring the rights to these events, unless a free TV channel also has the rights to broadcast them. Rights not acquired by free channels can then be acquired by subscription television providers. Currently, the list of anti-siphoning events that “should be available to the general public” includes the following:38
- every Olympic and Commonwealth Games event;
- every Melbourne Cup race;
- every match of the Australian Open tennis tournament;
- every AFL and NRL game;
- every international rugby union Test match and cricket match involving the Australian team; and
- every FIFA World Cup match, every FIFA qualifying tournament match involving the Australian team and the English Football Association Cup final.
Recent broadcast issues between Cricket Australia and Channel 7 include proceedings in the Federal Court of Australia alleging breaches arising from the quality of the men’s Big Bash League (BBL). In the claim, Channel 7 argues that its media rights deal with Cricket Australia meant the BBL should have been equal to the Indian Premier League in terms of quality and standard, but fell short in a number of key areas. , notably:
- the quality of the players;
- the amount of the salary cap; and
- the absence of auctions for each franchise.
Channel 7 says Cricket Australia should not have scheduled BBL matches in competition with men’s internationals and is seeking compensation in an amount to be determined and the termination of the last two years of its TV rights deal. This case is ongoing.39
Image rights, sponsorship and merchandising are also valuable rights available for exploitation. However, the relatively small size of the Australian market and the fact that many of Australia’s major sports are primarily, if not solely, domestic (e.g. AFL and NRL) or played internationally but among a relatively small number of nations (e.g. cricket and rugby), mean that their value is often limited compared to larger markets in other jurisdictions such as Europe or the United States.
ii Protection of rights
Broadcasting, image rights, sponsorship and merchandising are mainly protected by the contractual provisions in place between the holders and licensees of these rights, but also by legal intellectual property rights. It is mainly the property of:
- trade marks registered under the Trade Marks Act 1995 (Cth), in goods such as club names, logos and mascots; and
- copyright under the Copyright Act 1968 (Cth), in property such as rule books, recorded images and footage of events, and photographs.
Additionally, rights holders can take steps to protect their brand reputation from misrepresentation through unauthorized use, which falls under the tort of passing off. In this context, deception occurs when a person falsely declares that their property (e.g., merchandise) is the official, sanctioned property of the rights holder (usually the sports organization or sports club), or that they or it is affiliated with proprietary rights. Similarly, action may be taken against individuals who engage in misleading or misleading conduct or who make false or misleading statements through the ACL. In addition, ACL can apply to cases of ambush marketing.
Australia also has several other legislative protections, in addition to laws protecting intellectual property rights that can be used to prevent ambush marketing at sporting events. Legislation has been enacted to regulate the commercial use of images associated with the 2015 Asian Cup, 2015 Cricket World Cup and 2018 Commonwealth Games to restrict the ability of entities that are not official sponsors to use event images or to declare that they are associated with the event.40 Similar legislation prohibits the unauthorized use of images and phrases associated with the Olympic Games.41
In 2016, the Australian Olympic Committee (AOC) brought legal action against Telstra over allegations of ambush marketing. Telstra had entered into an agreement with Channel 7 under which Telstra would sponsor Channel 7’s broadcast of the Olympics and create a mobile application called “Olympics on 7”. Telstra’s advertising campaign later promoted viewing of the Olympics on the Olympics on 7 app, despite the fact that it had no direct association with the Olympics. The AOC alleged that Telstra engaged in deceptive and misleading conduct and made false or misleading statements by stating that it was associated with the Olympics, in violation of the ACL, and engaged in a unlawful use of copyrighted Olympic expressions for commercial purposes in violation of the Olympic Badges Protection Act 1987 (Cth).42 However, the Federal Court of Australia ruled against the AOC and ruled that the Telstra advertisements did not suggest to the reasonable person that Telstra was a sponsor of an Olympic body. The Court held that the law had not been breached if the advertisements had simply created uncertainty as to the nature of Telstra’s association with the Olympics.43 The AOC appealed the decision, but in October 2017 the Full Court of the Federal Court of Australia upheld the trial ruling and agreed that the advertisements did not suggest to a reasonable person that Telstra was a sponsor of organizations and teams associated with the Rio Olympics.44