The League Association and the DFL Deutsche Fußball Liga GmbH filed a complaint with the Düsseldorf Higher Regional Court, against the effective prevention of media rights marketing as initially envisioned. The move comes in response to last year's course of action by the Federal Cartel Office, which, the League says, stipulates unacceptable conditions for a centralised marketing campaign.
"The stance taken by the Federal Cartel Office has massively restricted the commercial opportunities available to the Bundesliga. Centralised marketing, with its focus on solidarity, not only ensures a level playing field in terms of competition, but also makes a significant contribution towards the financing of the professional game and the fulfilment of its multifaceted functions", League Association President Dr. Reinhard Rauball commented, adding that, "This course of action, which is unparalleled in Europe, threatens to put the League at a considerable competitive disadvantage in international terms."
On July 24th 2008 the Federal Cartel Office held a press conference to announced that it considered the League's proposed marketing model to be unacceptable. The Cartel Office took particular issue with the fact that one of the two packages proposed for tender foresaw a highlights programme for Saturday games on free-to-view TV to be broadcast only after 22:00 hrs ("Scenario 2"). The Office also said it would prohibit any such arrangement should the DFL press ahead with its plans. Subsequent to this however, the Federal Cartel Office did not issue any such interdiction, but announced instead that it could only formally prohibit the marketing model it objected to at such time as and when Scenario 2 had actually been awarded to a bidder.
The upshot of this was that the Federal Cartel Office had in advance effectively denied the League Association and the DFL the possibility of putting Scenario 2 out to tender with any prospect of success. It would have been clear to any potential bidder that the offer tendered would only have provoked an interdiction ruling.
As a result of the Federal Cartel Office assessment, the League Association and the DFL would be in the ongoing position of having to dispense with any marketing scenario which foresaw a first showing of match highlights on free-to-view TV starting any later than 20:00 hrs. On top of this, they would not even have the opportunity to test the legality of the Cartel Office appraisal.
"The League Association and the DFL have thus been denied all rights. The Federal Cartel Office has effectively enforced its desired course of action, but in the absence of a mandate has not created the basis for a legal examination of the case. That is not compatible with the constitutional principle of effective legal protection. We desire and require a level of legal and strategic certainty going forward", League Association President Dr. Reinhard Rauball said: "We are entering judicial terra incognita here insofar as we are having to take recourse to legal action in the absence of any formal ruling. In this instance, however, there is no alternative."
The particulars of the complaint call for an examination of the legitimacy of centralised marketing and also of the 20:00 hrs threshold mandated by the Federal Cartel Office for the broadcasting of Saturday match highlights on free-to-view TV, in the context of restrictive practices legislation.
