"We take note of the Fijian Government’s interpretation of the Law which would require Fiji TV to share the feed of events it has been granted access to pursuant to the existing licence for the HSBC Sevens World Series 2014/2015. We remind the Fiji Government that World Rugby is based outside of the jurisdiction of Fiji and Fijian law does not have extra-territorial effect." World Rugby letter to Aiyaz Khaiyum, A-G, Minister for Justice and Communications, 2 December 2014
Honourable Aiyaz Sayed-Khaiyum
Minister of Communications & Attorney General
7th Floor, Suvavou House
Box 2213, Government Buildings
Honourable Prime Minister of Fiji
Office of the Prime Minister
New Wing Government Buildings
PO Box 2353 Government Buildings
2 December 2014
Dear Mr Sayed-Khaiyum,
Retrospective application of the Television (Cross-Carriage of Designated Events) Decree 2014 which became law on 29 May 2014 to existing licences
We refer to recent correspondence between us in respect of the above subject matter.
Your letters dated 10 October 2014 addressed to the Chairman of the International Rugby Board and Fiji Television Limited (“Fiji TV”) respectively, do not, regrettably, accurately reflect the position we World Rugby (formerly the International Rugby Board) have communicated to you both in writing on 7 October 2014 and in verbal communications in that period with staff members of your Office. For the sake of completeness and to ensure that there is no misunderstanding this letter reflects our current position given the information we have in respect of the Television (Cross-Carriage of Designated Events) Decree 2014 (the “Law”) at this time.
At the outset we wish to make clear that World Rugby is respectful at all times of applicable national laws. However, it has been our experience in the past that the countries which have brought in similar legislation or directives to that of Fiji have engaged in a prior consultation process involving World Rugby. Naturally we are keen to ensure that there is a balance struck between access to events of national importance for citizens of that country and that of the economic impact that World Rugby experiences as a direct and/or indirect consequence of the legislation or directive imposed.
No Prior Consultation
Unfortunately in the case of the Television (Cross-Carriage of Designated Events) Decree 2014 and subsequent list of Designated Events, no prior consultation was sought with World Rugby and indeed no notice of the impending Law was advised to us prior to its enactment or even proximate to its implementation. We would have expected that as a party to whom the Law is specifically directed, and given the volume of World Rugby events affected namely the Rugby World Cup, HSBC Sevens World Series and Rugby World Cup Sevens (the “World Rugby Designated Events”), that there should have been a prior consultation process and/or the opportunity for direct engagement with World Rugby when we and our Licensed Broadcaster in the Fiji territory (Fiji TV) are directly affected.
Specifically, World Rugby (including for these purposes our affiliated companies IB Tournaments Limited and Rugby World Cup Limited) was given no notice by the Fiji Government of the potential application of the Law to the existing licences we have agreed with Fiji TV on an exclusive basis. The first correspondence from the Fijian Government on this subject was an email on 8 October 2014, notwithstanding the activation of the Law some four months earlier.
We take note of the Fijian Government’s interpretation of the Law which would require Fiji TV to share the feed of events it has been granted access to pursuant to the existing licence for the HSBC Sevens World Series 2014/2015. We remind the Fiji Government that World Rugby is based outside of the jurisdiction of Fiji and Fijian law does not have extra-territorial effect.
We further have difficulty understanding the underlying requirement that Fiji TV should share the HSBC Sevens World Series event with other Free to Air (FTA) broadcasters when Fiji TV is itself broadcasting the event on an FTA basis and thus reaching the populace of Fiji – which is surely the underlying objective of the Law? That aim is already achieved without the necessity of further sharing by Fiji TV of the HSBC Sevens World Series Rights with third party competitor broadcasters and thereby interfering with its exclusive contractual rights with all the economic and operational disadvantages that entails.
We have also consulted FIFA who also have an event designated under the Law, and have been made aware by them that they too did not give consent to the sharing of the FIFA World Cup Rights with parties other than their Licensees.
Incorrect Public Statements
We also dispute the assertions which have been made orally by representatives of your Office to Fiji TV and separately in the Fiji press (including but not limited to ‘The Sun’ newspaper dated 11 October) attributed to yourself “that the IRB itself has no objections for the series to be aired on all three free-to-air televisions companies”. For the record, World Rugby (formerly the IRB) never indicated to the Fiji Government our position and specifically we did not indicate or specify that we had no objections to the sharing of the exclusive rights we had already granted to Fiji TV. Our communication with your Office has been to the effect that World Rugby is still reviewing the matter – that does not give or imply consent in any fashion. Therefore the use of our communication in a fashion where it is presented as giving consent when clearly it did not is unacceptable, incorrect and totally misleading to the Fiji public.
For the sake of absolute clarity, World Rugby did not consent to the sharing of the Feed for the HSBC Sevens World Series with anyone other than Fiji TV. It was Fiji TV, following an order from your Department who shared the Feed of the Gold Coast Sevens as they felt compelled to do so. That now means that the provision of the Feed for future HSBC Sevens World Series Tournaments to Fiji TV, as a direct consequence of the Fiji Government intervention, is now at risk. If World Rugby cannot be sure that its contractual terms can be respected without external interference it has no option but to consider the status of the contract with Fiji TV.
The effect of legislated sharing of an otherwise exclusive broadcast is to lessen the value of the broadcast rights. In broadcasting, an exclusive product is worth more than a publicly available one. Licensees are able to charge an “exclusive premium” to sponsors and advertisers of that product. This in turns increases the price that World Rugby can charge for the product and therefore more funds are available for reinvestment in the Game of Rugby and Sevens in particular.
Such financial issues naturally have consequences which affect World Rugby. The Law now prevents World Rugby from marketing its rights on an exclusive basis in Fiji in respect of three Rugby properties. This loss of exclusivity negatively impacts the value of these properties in the Fiji market. If this position continues, World Rugby will have no choice but to act to protect its commercial interests and the value of its properties.
This also affects Fiji TV, our exclusive Licensee. We are informed by Fiji TV that their advertisers are looking for recompense now that the exclusive arrangements in place between them and World Rugby have purportedly been adjusted and there is no specific provision in the Law to address any loss they may incur as a direct consequence of the forced sharing of the Feed with other FTA broadcasters. What will the Fiji Government do to recompense Fiji TV for its enforced sharing of the Feed to HSBC Sevens World Series Gold Coast tournament and what proposals does it have for the remainder of the Series?
Fiji Government Assurances
We welcome the Fijian Government’s stated aims of working in collaboration and partnership with all stakeholders to promote Rugby and Rugby Sevens. However, this is best evidenced by working with the International Federation for World Rugby rather than taking unilateral actions without notice which interfere with pre-existing contractual rights. It is notable that the ultimate recipients of the funds garnered from those exclusive broadcast rights are the national Unions in membership of World Rugby, including the Fiji Rugby Union.
To this end, we share your hope that a satisfactory clarification and conclusion to this situation can be reached in the immediate future which balances the commercial value attributable to the rights licensed by World Rugby which may be adversely affected by the Law, with the desire of the Fijian Government to broadcast international rugby events to as many Fijians as possible.
World Rugby’s Position
At this time, pending the receipt of the requested clarifications from your Office (or other relevant Ministry of the Fiji Government) and further legal advice, World Rugby continues to reserve all our legal rights and position in respect of the application of the Law to the pre-existing licences IB Tournaments Limited and Rugby World Cup Limited have granted to Fiji TV.
Without prejudice to the foregoing, and until this matter has been resolved, World Rugby intends to withhold the Feed for the next tournament of the HSBC Sevens World Series in Dubai (5-6 December 2014) and if necessary in Port Elizabeth (13-14 December 2014) from Fiji TV.
We await your considered response.
Head of Legal & Legislative Affairs
Head of Commercial, Broadcast & Marketing
Copy by email to Fiji Television Limited CEO – firstname.lastname@example.org and email@example.com