You Rights of Transmission node Soccer and the Measure Provisional 984/2020

1. PARADIGM SHIFT

On June 18, 2020, Provisional Measure No. 984/2020 was published, amending article 42 of Law No. 9,615/1998 (Pelé Law), which dealt with the broadcasting rights of sports entities.

Article 42 of the Pelé Law, prior to MP 984/2020, established that sports practice entities have the right to negotiate, prohibit and authorize the fixing, transmission or retransmission of images of shows or sporting events in which they participate (BRAZIL, 2020)

In practice, under the old Pelé Law, to broadcast a soccer match, both clubs had to authorize the broadcast by a given broadcaster. If both clubs didn't agree, the match couldn't be broadcast. A formal and specific contract between the clubs and the broadcasting entity would be required.

For example, in 2016, some clubs signed with Turner for the rights to broadcast the Brazilian Championship on pay TV between 2019 and 2024. Thus, matches between teams from different networks could not be broadcast, according to the previous wording of the Pelé Law.

In this sense, unless there was an agreement between all parties involved, a team that signed with Globo could not have its game broadcast when facing a team that signed with Turner, on pay TV.

With Provisional Measure 984/2020, the host of the match now holds the arena rights, no longer requiring the consent of all parties involved in the broadcast of the match. In this regard, the new wording states:

“Art. 42. The right of arena over the sports spectacle belongs to the hosting sports entity, consisting of the exclusive prerogative to negotiate, authorize or prohibit the capture, fixation, broadcast, transmission, retransmission or reproduction of images, by any means or process, of the sports spectacle (BRAZIL, 2020).”

Guilherme Bellintani, president of Bahia, defended the importance of the changes brought about by the MP on social media:

"Without the ideal union of 20 clubs (who knows, maybe one day), the MP introduces a model that greatly encourages the formation of partial blocs, club consortiums, etc. It could be the beginning of a culture of unity, which until now had not been strengthened.

Before the Provisional Measure, if ten clubs joined forces, they could sell 90 Brasileirão matches (out of a total of 380). Even though they hold 501 T3T of the clubs, they only hold less than 251 T3T of the matches. The remaining matches from these clubs disappear from the market and become dust. The club earns less, and the fans suffer.

With the provisional measure, these ten clubs would sell 190 games, more than doubling the number of games to be sold. The product will therefore be worth more, and fans will directly benefit from this (ARAGÃO, 2020).

On the other hand, Avancini (2020) states that if the MP is approved by Congress and is not changed by several amendments, it could harm medium and small-sized teams, as they have less financial power, smaller fan bases, and consequently a smaller consumer market.

Power has migrated to the hands of the consumer, something already noticed by both players, by fans and the market in general, where this will determine the headings of the transfer market. This new dynamic allows the production of institutional content by clubs, which can generate enormous capital gains for entities that know how to take advantage of it (AVANCINI, 2020).

It is important to highlight that these changes do not apply to contracts in force prior to the enactment of Provisional Measure 984/2020, constituted as perfect legal acts, since they were signed under the aegis of the previous wording of the Pelé Law (9,615/1998).

According to Ongaratto (2010), the perfect legal act enshrines the principle of legal certainty, as it preserves the situations duly established under the previous law, because the new law only projects its effects into the future, as a rule.

Teams that seize current opportunities can get a head start, potentially reaping promising results in the near future. However, we can only definitively assess the effects of Provisional Measure 984/2020 if it is enacted into law by the National Congress, which will depend on political coordination. Even so, the enactment of the Provisional Measure already raises a fundamental debate in the market and could cement a new business model in the sports sector.

REFERENCES

ARAGÃO, Leandro. After MP, Bellintani plans creation of club blocs to negotiate game broadcasting. Bahia Notícias, [S. l.], p. 1, June 19, 2020. Available at: https://www.bahianoticias.com.br/esportes/bahia/23914-apos-mp-bellintani-projeta-criacao-de-blocos-de-clubes-para-negociar-transmissao-de-jogos.html. Accessed on: July 6, 2020.

AVANCINI, Jorge. MP 984/2020: I was happy and didn't know it. Mktesportivo, [sl], July 1, 2020. Available at: https://www.mktesportivo.com/2020/07/mp-984-2020-eu-era-feliz-e-nao-sabia/. Accessed on: July 6, 2020.

BRAZIL. Provisional Measure 984 of June 18, 2020. Official Gazette of the Union. Available at http://www.planalto.gov.br/ccivil_03/_ato2019-2022/2020/mpv/mpv984.htm. Accessed on July 6, 2020.

OHATA, Eduardo. Clubs signed with Globo until 2020 extend their contracts for another four years. Uol Esportes, [S. l.], p. 1, June 1, 2016. Available at: https://blogdoohata.blogosfera.uol.com.br/2016/06/01/clubes-fechados-com-a-globo-ate-2020-estendem-vinculo-por-mais-quatro-anos/. Accessed on: July 6, 2020.

ONGARATTO, Vinicius. Perfect legal act, res judicata and acquired right. Âmbito Jurídico, [S. l.], p. 1, October 1, 2010. Available at: https://ambitojuridico.com.br/cadernos/direito-processual-civil/ato-juridico-perfeito-coisa-julgada-e-direito-adquirido/. Accessed on: July 6, 2020.