Some call her a consumer champion; others say she has opened a Pandora's box that could ruin the economic model that has made Premier League clubs among the richest in world football.
The Premier League tried to prevent Karen Murphy showing illegal foreign feeds of matches in her Portsmouth pub. She took her case to the highest court in Europe and today a European Commission advocate general threatened to undermine the League's forthcoming multibillion-pound television rights auction. In the latest twist to a long-running legal saga, Juliane Kokott – one of eight EC advocate generals – advised the European court of justice to find in Murphy's favour in a judgment that was headed with the words "territorial exclusivity agreements relating to the transmission of football matches are contrary to European Union law".
At the Premier League's Gloucester Place headquarters, where every move is calibrated to oil the wheels of the most successfully marketed league in the world, they are not used to surprises. But the small core of executives, lawyers and advisers who have masterminded English football's boom in TV revenue were shocked by the strength of Kokott's language. What particularly disturbed them was her view that the Premier League's existing territory-by-territory rights model – which, the UK deal included, yielded £3.5bn for member clubs under the current three-year deal – was "tantamount to profiting from the elimination of the internal market".
Kokott's advice is not binding but lawyers said today that the opinion of the advocate general was followed in around 70% of cases. She argued that separating the European market on a country by country basis and selling the rights exclusively to a single operator was "something which constitutes serious a impairment to the freedom to provide services".
In plain English, that means that the regulars at the Red, White and Blue who today raised a glass to their plucky landlady will be able to continue watching Premier League matches on Saturday afternoons, through a Greek broadcaster. And if the opinion of Kokott is carried by the ECJ, it will mean that consumers will be able to follow their lead and watch more live football for less (380 matches are broadcast in Europe, compared to 138 in the UK). It remains to be seen how many will vault through the practical hoops required to do so – purchasing a new decoder, subscribing to a European provider and pointing a satellite dish in the right direction.
"If followed by the full court, this opinion has serious implications for the Premier League and Sky," said Becket McGrath, a partner in EU and competition law at Edwards Angell Palmer & Dodge. "In the short term, Sky will face more defections from subscribers to foreign sources of Premier League football. In the longer term, the Premier League is likely to receive less money when it next auctions off its TV rights, as no bidder will be prepared to offer as much for UK rights. It may ultimately be forced to abandon territorial licensing all together."
That course of action is seen as the most likely by rights experts, if the opinion of Kokott is adopted by the ECJ and survives the appeals process. If the Premier League was forced to sell its rights on a pan-European basis, to avoid a doomsday scenario in which consumers scoured Europe for the cheapest deals, it could still hurt its bottom line, as it would be less able to extract maximum value out of each market. Such a scenario would also force the Premier League to decide whether to turn its back on the 3pm-5pm blackout agreement and sell all 380 live matches on a pan-European basis.
The battle between the media giants who could compete in such a scenario – perhaps News Corporation, MediaSet, Canal Plus and Disney, which owns ESPN – would still drive substantial value. Also, the major growth markets are Asia and the US. Paradoxically, though, such an arrangement might result in concerns over competition at European Union level. If the Premier League was ultimately forced to abandon pan-European deals but also agree that each national broadcaster could sell its rights across the continent, that really would spell trouble.
Premier League lawyers will fight the judgment. But lawyers today warned that they were in uncharted territory. Alex Haffner, a senior associate and EC competition law expert at SNR Denton, said: "It's a clash between commercial justifications and the law. It's one of those things that has challenged the whole principle of how rights are sold."
The Premier League will be fighting on a number of fronts in the coming months and years to protect the model that has served it so well for 20 years. The ever-worsening problem of online piracy and the possibility that regulators will once again open up the question of the way it sells its rights will remain live threats and figure prominently in the in-tray of the incoming general secretary, Nic Coward.
In the meantime, Murphy's law will continue to breed unease and uncertainty at a time when the Premier League is gearing up for its next lucrative rights auction.
Could 3pm Saturday games be shown live?
Since the first live matches were shown on British television, long before they became the driver of a pay TV industry that would pay £1.7bn for domestic rights alone, there was collective agreement that a "blackout" from 3-5pm on Saturdays was desirable to protect lower-league attendances and participation.
But today's intervention by the EC's Juliane Kokott in the case brought against Karen Murphy will revive the debate about whether it has become an anachronism that does more harm than good. Kokott suggests it "cannot be ruled out" that the agreement is based on maintaining rights value rather than protecting small clubs.
She said: "It is, in fact, doubtful whether closed periods are capable of encouraging attendance at matches and participation in matches. Both activities have a completely different quality to the following of a live transmission on television". It has not been adequately shown to the court that the closed periods actually encourage attendance at and participation in matches."
The voluntary agreement – backed by the English football authorities, the government and Uefa – has held. But as the number of live matches has mushroomed so has the number of fixtures rescheduled as a result, in many cases angering fans.
If the Premier League was forced to start selling on a pan-European basis, it might have to take the decision to scrap the blackout to make the same number of games available across Europe. That could open up for the first time the possibility of selling club-by-club "season tickets" to watch every match on television or online – which might even increase revenue for clubs at all levels.