Rugby’s governing body makes it clear that it believes the SABC should have put the needs of its viewers ahead of its dissatisfaction with the sub-licensing terms offered up by SuperSport, for the broadcast of the upcoming Lions series.
As it stands, South African rugby fans without a DStv decoder will not be able to watch the Springboks in action in the comfort of their own homes for the foreseeable future – not just this year’s British and Irish Lions series, but Bok games for the next three years.
That’s following the spat that has seen primary rights-holder MultiChoice and its subsidiary SuperSport fail to agree terms with the SABC, which has accused the pay-TV broadcaster of a range of transgressions, including acting in bad faith, anti-competitive behaviour, bully tactics, flouting the South Africa’s broadcast regulations, and acting as the country’s sole gate-keeper, with regards the distribution of sports rights in the country.
Let’s just sketch the background, for starters.
SuperSport currently owns the rights to broadcast Springbok games, but according to regulator the Independent Communications Authority of South Africa (ICASA), it is obliged to “sub-license” these rights to free-to-air broadcasters, due to fixtures involving the Boks constituting “sport of national interest”, of which there is a list put together by ICASA.
This, after two years of hearings into sports broadcasting regulations, which wrapped up earlier this year, with ICASA ultimately conceding that it did not have the authority to dictate the terms of any sub-licensing agreement, including determining price.
Nonetheless, SuperSport seemingly followed protocol in offering the SABC access – at a substantial fee, according to the public broadcaster – to the upcoming Lions series, with the stipulation that the matches not be broadcast live and that they be limited to the games being shown on SABC 1, 2 or 3, only.
That last stipulation is the clause that has so incensed the SABC, as it prevents the public broadcaster from showing the Springbok games on its other platforms, such as Openview and via mobile and OTT services, including the SABC’s online sports offering.
“We feel there is no justification for this clause, it goes against the spirit of the regulations that aim to ensure free-to-air content from the national broadcaster is available to all South Africans everywhere, and is blatantly anti-competitive in that it restricts us from fully exploiting our content by all means at our disposal,” said Gary Rathbone, SABC Sport’s General Manager.
According to SuperSport, it “has no interest in playing this out in the media,” and instead referenced the original response statement put out by MultiChoice, when asked for comment.
“MultiChoice does not believe that a term of the offer precluding SABC making the content available to third parties, with whom the SABC has concluded commercial agreements, is anti-competitive,” it said. “It would undermine the value of MultiChoice’s investment in acquiring the rights.”
The latter statement would seem to reference the SABC’s signal distribution channel carriage and content agreement with eMedia Investments (e.tv, eNCA and Openview), which was unveiled in March, with MultiChoice clearly not happy at the prospect of seeing its premium rugby content on additional platforms outside of the SABC’s three main channels, having shelled out a significant amount of money for the primary rights to this sports content in the first place.
The SABC’s agreement with eMedia Investments sees the “free-to-view direct broadcast satellite TV provider” Openview carrying SABC 1, 2 and 3, as well as three additional TV channels, including the newly-launched standalone SABC sports channel.
In this way, SuperSport is probably of the view that it has fulfilled its ICASA-stipulated mandate to offer the content to a free-to-air platform, but is not obligated to go further than that, effectively adopting a “take it or leave it” stance and challenging the SABC to make the call that ensures the Springboks are not seen anywhere on the public broadcaster’s platforms.
And SuperSport appears to have the backing of the other major player in this story.
“As the SABC acknowledged in their statement, the matches of the British & Irish Lions series were available for free-to-air viewers on any of SABC 1, 2 or 3,” said a SA Rugby spokesperson. “They chose not to sub-licence those games. That was the SABC’s decision and one trusts they considered their licence holders when they made it.”
But, not a major surprise that SA Rugby is seemingly taking SuperSport’s side on this issue, even though logic dictates that it would surely like to see its ‘product’ in front of as many South African eyeballs as possible, particularly as it attempts to grow the game of rugby in the country.
That’s because, whilst it would obviously love to see the Springboks watched by millions more South Africans, it has a long-standing and lucrative broadcast partner in MultiChoice/SuperSport, and it’s a relationship that it clearly needs to protect.
SA Rugby CEO Jurie Roux effectively said as much at the ICASA hearings in January, when he pointed out that broadcasting rights made up 58% of the organisation’s current income.
“SA Rugby needs to produce compelling content that is commercially viable, so we can develop the game from grassroots level to winning national teams,” he said. “We are 99.7% self-funded – we get only 0.3% of our income from the government – and broadcast rights bring in R752-million.”
That’s why SA Rugby is willing to grant SuperSport exclusivity to the broadcast of Springbok games, and why Roux cautioned ICASA against over-regulating the sports rights market.
“Exclusivity is the main source of our revenue and with less money it means there will be less rugby, until we have to close our doors and only have club rugby,” said Roux. “And then nobody will be interested in the game.”
Rathbone, though, is having none of it, and refuses to have the blame laid at his door.
“It was the SABC’s decision not to be saddled with a contract from SuperSport that was unnecessarily restrictive,” he says. “It was SuperSport’s decision to include that clause in the contract, and one trusts they considered the millions of South African rugby fans who can’t afford to pay for a DStv subscription when they made it. By supporting SuperSport’s decision to include that clause in the terms offered to us, it is clear that SA Rugby has very little regard for ordinary South African rugby fans.”
For Rathbone, though, beyond this disagreement with SuperSport, there are some broader issues that he believes ICASA needs to address.
“This is why we keep calling on ICASA to regulate for the unbundling of sports rights and stop going on about ‘exclusivity’, which was a red herring introduced by SuperSport ages ago,” he says. “The real issue is allowing a dominant player in the local market to acquire all rights to all content and thus become a gatekeeper on terms that only suit themselves.”
But, haven’t SuperSport done what ICASA have asked and offered the content in question to a free-to-air broadcaster? Yes, according to Rathbone, but his issue is with what happens when that offer comes with prohibitive restrictions, what recourse there is for the aggrieved party, and ICASA’s role in any potential dispute thereafter.
“Firstly, they (SuperSport) are not doing us a favour, but fulfilling a mandate to make sport in the national interest available to the SABC,” continues Rathbone. “Secondly, they should never have been allowed to pay to secure free-to-air rights, as they’re not a free-to-air broadcaster. We should have been allowed to negotiate those separately with the rights owners. Thirdly, in sub-licensing these rights, they should not be moving to add anti-competitive clauses that restrict how the SABC can distribute this content on their free-to-air channels. We are entitled to broadcast content we acquire on all SABC channels and by any platform, so long as it is free-to-air and is a live simulcast of an existing channel.”
Rathbone is also of the view that the situation would be different, should there be no sub-licensing fee involved.
“If they wanted to give us these rights for free, that would be a different issue,” he says. “But, they are charging us a massive premium for them.”
According to Rathbone, unless the SABC is permitted to fully exploit the rights it may acquire from SuperSport, it won’t be accepting the deal offered, and, due to this being part of a potential three-year deal, the ramifications extend beyond the upcoming Lions tour.
But, he says he wants the public informed and for it to understand the background to these ramifications.
“We are tired of always being blamed for under-delivering, as we will do when people start complaining that they can’t get these games on the sport channel, SABC 2 on Openview, or on TelkomONE,” he says.
As it stands, there will be no Springbok games on any SABC platform for some time to come, with the South African rugby fan – specifically those without access to a MultiChoice decoder – the biggest loser.