State faces TV row own goal

GOVERNMENT attempts to up-end the €7m Sky TV-FAI deal on Ireland's international soccer matches may prove to be an own goal, a leading lawyer said yesterday.

Dublin solicitor, Deirdre Ní Fhloinn, said the move by Communications Minister Dermot Ahern to designate the soccer internationals as mandatory for non-subscription television channels such as RTÉ and TV3 may be flouting Article 40.3.2 of the Constitution. This obliges the Government to protect and vindicate the property rights of citizens.

Writing in the solicitors' monthly magazine, Law Society Gazette, Ms Ní Fhloinn says there are compelling grounds for both the arguments of the Minister and FAI-Sky. But she warns that the Government must proceed very carefully in its campaign to safeguard the soccer internationals, which include seeking Oireachtas and EU approval.

She says that a crucial issue is whether the Government move to designate the games, after the FAI-Sky deal was struck last July, can stand up to court scrutiny.

"A key question is whether the draft list, once confirmed by the EU Commission, can apply to the pre-existing contract between Sky and the FAI," she says.

Ms Ní Fhloinn notes that EU law states that lists should be drawn up in "a clear and transparent manner and in due and effective time." She suggests that this indicates that retrospective legislation may not work.

The issue is further clouded by two other factors. Firstly, the EU law confers a right rather than an obligation on member states to take such action, and secondly, the matter of deferred broadcast rights to free channels after subscription services have carried live games.

She notes the FAI argument that Irish people are already accustomed to watching games soon after they end in the English Premiership programmes broadcast each week by RTÉ and ITV. The counter-argument is the nationwide popularity of World Cups and European Championships involving the national side.

A spokesman for Minister Ahern yesterday re-iterated that the Government is sure of its legal advice that it is within its rights to set aside the FAI-Sky deal.

"We are happy that we are acting within EU and Irish law as it stands and there will be no change of policy on this," the spokesman said.

However, Mr Ahern has also signalled his intention to change the law to empower stations such as RTÉ and TV3 to acquire broadcast rights even after they have been sold by a sports organisation to stations such as Sky TV.

The FAI has insisted throughout the controversy that its deal with Sky TV stands and they have referred all queries about likely legal challenges to the television company.

Speaking at the launch of extended digital service in Dublin yesterday a Sky TV spokesman again said they have no comment to make on likely legal challenges.