Germany

[DE] Düsseldorf Court of Appeal Dismisses Complaint by the German Football League

IRIS 2009-10:1/7

Christian M. Bron

Institute of European Media Law (EMR), Saarbrücken/Brussels

In a dispute concerning the marketing model for the German football league, the Oberlandesgericht Düsseldorf (Düsseldorf Court of Appeal - OLG) has dismissed on technical grounds the appeal lodged by Deutsche Fußball Liga GmbH (DFL), the company responsible for the operation of the German football league, against a decision by the Bundeskartellamt (Federal Cartel Office - BKartA).

The background to the dispute was the plans drawn up by the DFL in the summer of 2008 for the central marketing of the television rights in Bundesliga matches. From the 2009/2010 season onwards, summaries of the Saturday games were not to be shown on free-to-air television until after 10pm. The Cartel Office subsequently made it clear at a press conference that it considered this model unlawful on competition grounds and announced that it would not allow the plans to go ahead. However, no ban that could be challenged in a court of law was actually imposed since the DFL did not implement the marketing model (see IRIS 2008-9: 6).

In its appeal to the OLG Düsseldorf, the DFL complained that it had been forced to change the marketing model without being able to have a court examine the Cartel Office’s decision. Although the appeal was inadmissible on procedural grounds, the court said the Cartel Office should ensure clarity well ahead of the next rights allocation round (for the 2013/2014 season). Whether a particular exploitation scenario might breach competition law needed to be clarified at least a year before the allocation of rights, which would allow sufficient time to bring about a binding judicial decision.

Leave to appeal against the judgment to the Federal Court of Justice was denied, but the DFL can appeal against this denial.