COMESA Competition Commission

Confederation of African Football and beIN Media Group fined for Breach of Competition Regulations

All media rights awarded to beIN under the agreements will cease within the Common Market by December 31, 2024”, the Commission’s Committee Responsible for Initial Determinations (CID) decided.

The COMESA Competition Commission has recently taken action against the Confederation of African Football (CAF) and beIN Media Group for allegedly violating competition regulations, resulting in fines amounting to USD 300,000 each. This move underscores the Commission’s commitment to ensuring fair competition within the Common Market.

The investigation, initiated in 2017, focused on agreements between CAF and third parties regarding the commercialization of football competition rights. Subsequently, in 2019, the Commission extended its scrutiny to include beIN Media Group and Lagardère Sports S.A.S, specifically examining memoranda of understanding between Lagardère Sports and beIN related to media rights for CAF football competitions.

After thorough examination, the Commission’s Committee Responsible for Initial Determinations (CID) found certain provisions of the beIN agreements to be in violation of Article 16 of the COMESA Competition Regulations. The key findings highlighted significant concerns:

Lack of Transparency in Tender Process: The absence of an open tender process for awarding pay-TV broadcast rights for CAF competitions was deemed detrimental to competition within the Common Market.

Excessive Duration of Agreements: The excessively long duration of exclusive agreements with beIN increased the risk of market foreclosure, particularly considering the frequency of CAF competitions.

Scope of Media Rights: The broad scope of media rights, combined with the lack of transparency and lengthy agreements, was likely to distort competition in relevant markets.

In response to these findings, the CID issued several orders aimed at rectifying the situation:

• All media rights awarded to beIN under the agreements will cease within the Common Market by December 31, 2024.
• CAF must adopt an open, transparent, and non-discriminatory tender process for future media rights, based on objective criteria approved by the Commission.
• New exclusive agreements for media rights must not exceed a duration of four years, with exceptions subject to Commission approval.
• Media rights should be offered as separate, commercially viable packages on a platform-neutral basis, preventing a single entity from monopolizing all packages.

Additionally, parties aggrieved by the CID’s decision have the option to appeal to the Appeals Board within 60 working days.

Background 

On 13 February 2017, the COMESA Competition Commission commenced an investigation into a possible violation of Part 3 of the Regulations by the Confédération Africaine de Football (“CAF”), pursuant to Article 22 of the COMESA Competition Regulations. On 16 April 2019, the Commission issued notices of investigation against Lagardère Sports S.A.S and beIN Media Group LLC. CAF and beIN are together referred to as the “Respondents.

The investigation was concerned with the two Memoranda of Understanding entered into between Lagardère Sports and beIN Group for the commercialisation of media rights of football competitions organised by CAF. Specifically, the concerned MOUs are:

• . MOU dated 22 October 2014 between Sportfive and beIN Group (the “2014 Agreement”); and

1. MOU dated 16 February 2016 between Lagardère Sports and beIN Group (the “2016 Agreement”).

The aim of the investigation was to allow the Commission to determine whether or not certain provisions contained in the Agreements are in violation of the Regulations. The alleged competition infringements assessed concern:

1. the award of media rights of CAF competitions in the absence of an open and competitive tender process;
2. the long-term duration of contract for the award of media rights of CAF competitions to beIN; and
3. the bundling of media rights across platforms, transmission mode and competitions.

The Commission’s investigation established that the duration of the 2016 Agreement, coupled with the lack of competitive tender processes and the extensive scope of exclusivity granted to beIN was likely to lead to a significant restriction of competition in the relevant markets in the Common Market. Hence, the Commission concluded that certain provisions contained in the Agreements contravened Article 16(1) of the Regulations as they affected trade between Member States and had as their object and effect the restriction of competition in the Common Market. In view of addressing the competition concerns identified, the Commission recommended undertakings pertaining to the award of future media rights and the termination of the 2016 Agreement by 31 December 2024.

CAF 

CAF is the governing body of football in Africa and has fifty-four (54) Member Associations, which are the national football associations of the African countries, and two Associate Members (Reunion Island and Zanzibar). CAF is an international non-governmental organisation with its own legal persona, founded in 1957 in Khartoum, Sudan. The headquarters of CAF are located in Cairo, Egypt.

At the time of the investigation, CAF had exclusive rights to organise eleven (11) competitions, namely:

For national teams

1. Africa Cup of Nations (“AFCON”);

• . African Nations Championship “(CHAN”);
• . U-20 AFCON;
• . U-17 AFCON;
• . U-23 AFCON;
• . Women’s AFCON;
• . Futsal AFCON;
• . Beach Soccer AFCON;
• . CAF Champions League;

1. CAF Confederation Cup; and

• . CAF Super Cup

Further, CAF had the exclusive right to organise any other continental or intercontinental football competitions.

The executive body of CAF is the Executive Committee and consists of the President, thirteen (13) members and one female member. The Executive Committee is responsible for implementing the policies and decisions of the General Assembly, and the management and the administration of CAF. It is the supreme authority for all matters concerning CAF competitions.

According to Article 59 of the CAF Statutes, CAF and the national football associations of African countries are the legal owners of all rights arising from competitions and other events which fall under their respective areas of responsibility. These rights include, among others, all kinds of pecuniary rights, audio-visual recording rights, reproduction and broadcasting rights, multimedia rights and marketing and promotional rights, copyright as well as intellectual property rights; for example, covering emblems. The Executive Committee is responsible for determining how and to what extent these rights are exploited. Under the CAF Statutes, it is provided that the Executive Committee is sovereign in relation to the exploitation of these rights and that it can exploit them either directly, or with third parties, or delegate their exploitation totally or partially. The Commission submitted that CAF is thus entitled to make decisions pertaining to the exploitation of the media and marketing rights, and in so doing, it may choose to delegate these powers to any third party, such as Lagardère Sports.

beIN 

beIN is a global entertainment group headquartered in Qatar, which broadcasts sixty (60) channels across five continents within forty-three (43) countries and in seven different languages. beIN has submitted that it has major operations in the Middle East and Northern Africa region, as well as in France, Asia, Australia, and the USA. beIN has been active in acquiring broadcasting rights for various sports events held globally, including premium content across football, tennis, motorsports, cycling, athletics and various other sports.

beIN submitted that the broadcasting rights in respect of sports content in the Middle East and North Africa (MENA) region are dealt with by beIN Sports MENA, which was established in 2003 as Al Jazeera Sports, and was subsequently rebranded in January 2014. On 1 November 2015, beIN Sports MENA expanded its portfolio to include movies, general entertainment, factual and kid’s content on its platform and beIN Media now offers blockbuster movies, entertainment and sports, all through a technologically advanced platform across the MENA region in full HD. beIN Sports MENA broadcasts continuously in the MENA region in four languages (Arabic, English, French, and Spanish).  On the African continent in particular, beIN Sports MENA offers a direct-to-home satellite service and its channels (including sport and entertainment) are available in Algeria, Egypt, Libya, Morocco, Tunisia, Somalia, South Sudan, and Sudan, as well as Mauritius and Madagascar. According to its website, beIN brings unrivalled sport action and major international events, to dozens of millions of viewers around the world.

Agreement subject to the investigation

The 2014 Agreement was concluded between Lagardère Sports (then operating as Sportfive) and beIN Group on 22 October 2014. Recital B of the 2014 Agreement states that on 10 October 2008 and 5 February 2009, Sportfive granted to Arab Radio and Television and International Sports Events a license to exploit certain media rights for editions of CAF competitions [AFCON, CAF Champions League, CAF Super Cup, CAF Confederation Cup, and CHAN and AFCON U-20] held from 2009 to 2016. These rights were subsequently transferred to Al Jazeera Media Network, a company owned by beIN, on 17 November 2009. The 2014 Agreement also makes reference to a priority right granted by CAF to Sportfive for the renewal of the agreements regarding the editions of the CAF competitions to be held from 2017 and 2024, and the preliminary tournaments of the AFCON 2017, 2019, 2021, and 2023; and which Sportfive intended to exercise.

The 2016 Agreement was concluded between Lagardère Sports and beIN on 16 November 2016. Section C of the Recital of the 2016 beIN Agreement provides that pursuant to new agreements concluded with CAF and pursuant to other agreements concluded with the company IFAP Sports, Lagardère Sports is entitled, with complete exclusivity, to commercialise, throughout the world, the media rights regarding the following CAF’s competitions:

• .The Competitions [AFCON, CAF Champions League, CAF Super Cup, CAF Confederation Cup, and CHAN and AFCON U-20] to be held from 2025 to 2028;
• The Preliminary Tournaments of the AFCON 2025 and 2027;
• The editions 2019, 2023, and 2027 of the U-23 AFCON;
• The editions 2017, 2019, 2021, 2023, 2025 and 2027 of the U-17 AFCON;
• The editions 2016, 2018, 2020, 2022, 2024, 2026, and 2028 of the Women AFCON; and
• The editions 2016, 2018, 2020, 2022, 2024, 2026, and 2028 of the Futsal AFCON.

Under Clause 2, Lagardère Sports granted beIN a license related to the media rights for the above competitions on an exclusive basis to the following territories in the Common Market: Djibouti, Egypt, Libya, and Sudan. Mauritius and Madagascar are part of the licensed territories on a non-exclusive basis in any languages but on an exclusive basis in French. The licensed media rights included the right to “broadcast, exhibit, or transmit on a live, near-live, delayed basis, the Additional Competitions on an unlimited number of times in any languages on a platform neutral basis… for reception on any devices, whether live or delayed coverage, in full or by way of highlights or clips, for any purposes… .” Under Clause 3 of the 2016 Agreement, in consideration for such an exclusive license, beIN agreed to pay Lagardère Sports a net aggregate license fee.