Fijileaks Editor: The letter that Attorney-General Aiyaz Khaiyum did not want anyone to see. Khaiyum had internationally released to everyone Word Rugby's first letter of 3rd December 2014. This 2nd letter (below) from World Rugby clearly showed up his incompetency & lack of basic legal knowledge of law which a first year law student could have easily picked up. When Khaiyum received this letter from World Rugby, he never did and could never respond to World Rugby. He then ran to NZRU begging and pleading for their help to facilitate this impasse - they could not help after learning the truth. His local public outcry in the Fiji Sun and FBC against the "Big Boys" in World Rugby was monitored by World Rugby. The World Rugby letter clearly states "yet again" that no consent was given for the Gold Coast 7s and also confirmation that no consent was given by FIFA for the sharing of the Football World Cup 2014. A key to World Rugby's letter is that any sharing of their products or other sporting bodies products, consultation was made with World Rugby and other sporting bodies. This letter was emailed to all Fiji TV board members, PM's Office, Ministry of Communications & AG's Chambers AND not forgetting Nouzab Fareed himself emailing the letter to South Pacific Stock Exchange. This letter has to be seen to be leaked by Fareed.
To:
Honourable Aiyaz Sayed-Khaiyum
Minister of Communications & Attorney General
7th Floor, Suvavou House
Box 2213, Government Buildings
Suva, Fiji
Copy to:
Honourable Prime Minister of Fiji
Office of the Prime Minister
New Wing Government Buildings
PO Box 2353 Government Buildings
Suva, Fiji
4 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 your letter of 3 December 2014 in respect of the above subject matter. While we appreciate the swift response we note that the letter does not address our expressed concerns but rather sought to reiterate the content of you[r] earlier communication which was insufficient and not conducive to an immediate positive outcome.
To recap, we World Rugby, believe that the failure of the Fiji Government to consult with the sports event owners whose events were Designated under the Television (Cross-Carriage of Designated Events) Decree 2014 (the “Law”) and your insistence that this Law has retrospective effect has resulted in Fiji TV being placed in breach of its exclusive contract with World Rugby.
Our efforts in communicating have been to establish a dialogue with the Fiji Government to address both the retrospective position and its impact and assess the future ramifications for the World Rugby events. We are conscious that it is the Fijian population who will be disadvantaged if the dialogue does not commence – but that is entirely within the hands of your Department. We note public statements in the Fiji press that the Fiji Government is hopeful of a positive outcome from discussions with World Rugby – to date there have been no direct discussion. We are asking for you to engage with World Rugby on these aspects, is the Fiji Government prepared to do so and if so can you identify the individual and means of doing so please?
Out of respect to you we have addressed the points raised in your letter of 3 December in numerical order for ease – we would ask that you also respond to our queries raised in both our letter of 2 December and below in the same vein.
2. Please identify specifically the “erroneous facts and assumptions” you say World Rugby has made and why you consider them to be “erroneous”.
3. Your 10 October 2014 letter does not address the impact of the new Law on existing contractual arrangements with parties (like World Rugby) who are not based in Fiji and 141204 World Rugby Letter to the Fiji govt re Decree (3) Page 2 of 5 whose events are taking place in territories outside Fiji nor indeed the future impact on competition in the marketplace in Fiji for such Designated Events.
Specifically there was no prior consultation with the Event Owners whose events were Designated (certainly not with World Rugby). We would be interested for example to understand how matches not involving the Fiji Sevens National Team could be of national importance in Fiji?
4. Designated Event Legislation is in existence in other territories, that is correct and some territories include Rugby as a designated event which may be required to be provided on a free-to-air requirements basis (live or delayed). However, such legislation is not as broad and all-encompassing as the Law which applies to all matches in the Rugby World Cup, the Sevens Rugby World Cup and the HSBC Sevens World Series. Quadrennial events such as an Olympic Games or World Cup have a rarity value, annual events less so. It is particularly noted that the HSBC Sevens World Series has been included which is in effect an annual league (or series of events) and no other sport has been affected in the same way – what is the rational for this?
In Australia, legislation is limited to Australia’s games and the quarter-finals, semi-finals and the final of the Rugby World Cup Finals and Australia’s international test matches. In the United Kingdom, legislation is limited to live coverage of the final match of the Rugby World Cup and deferred coverage or highlights of the other games in the Rugby World Cup Finals and Six Nations Rugby matches involving England, Scotland and Wales. Similarly in Ireland, the legislation covers live coverage of Ireland’s games in the Rugby World Cup Finals and deferred coverage Six Nations Rugby matches involving Ireland. In the USA the NFL have an anti-siphoning policy whereby they prevent one network from getting rights to all or a majority of matches – however Rugby is not a designated event in that territory.
World Rugby has engaged in recent times in the UK and Ireland Government processes for Listed/Designated Events which are regularly reviewed to assess their continuing relevance including meeting the threshold test of ‘national importance’. The economic impact of designation by national territories is a recognised consideration in their assessments of the ultimate Designated Events and the scope of such designation (which should at all times be reasonable and proportionate). World Rugby has yet to see evidence of any consultation efforts by the Fiji Government in relation to the Law and we are asking that you do so now and engage with Event Owners. Please confirm if you are prepared to engage in discussions with World Rugby in relation to the scope of the Designation under the Law?
5. We would appreciate viewing the footprint to which you refer with regard to Fiji TV and Fiji BC and specifically to review the overlap of that footprint as between these two FTA entities. We would also ask that the footprint of any other broadcaster in Fiji be included for completeness. The letter World Rugby received from Fiji TV dated 3 December is at odds with prior consultations we have had with them and therefore we would prefer to have a statistical / geographic representation presented in support of your assertions on this point. Can you please provide same?
6. To be clear, it is the actions of the Fiji Government through its interference with the HSBC Sevens World Series (the “Series”) Feed from the Gold Coast Sevens which has precipitated the present position and which will be directly responsible for the deprivation of access to the Feed of the Series to members of the Fiji public – it is not the fault of Fiji TV or World Rugby.
We appreciate that the Law leaves little or no margin of appreciation for Fiji TV to resist an order from the Government to share the Feed. Indeed we note that your office wrote to Fiji TV on 10 October and in that communication specifically stated that “Fiji TV should take note that any non-compliance with the Law is an offence which attracts heavy penalites [sic]”. World Rugby takes the view that there has been contractual interference and we are within our rights (and indeed our obligation to the whole of the global rugby family and supporters) to withhold the provision of the Feed to the Series from Fiji TV pending satisfactory engagement and clarifications from the Fiji Government – none of which have been provided to date.
If the Fiji Government is prepared to engage in immediate and constructive discussions with World Rugby, and to respect the exclusive nature of the Series Broadcast Rights while discussions are ongoing (i.e. ensure that the Feed is exclusive to Fiji TV) then we can consider making the Feed available to Fiji TV (only). Please advise if you are willing to accept this position pending the clarification of the matter?
7. The Law was introduced on 19 May 2014 and the Designated Events followed. World Rugby’s first communication from the Office of the Attorney General – which was to demand access to the Feed to the Series was on 8 October 2014. Communications with our broker in August were on a post facto basis after the Law was enacted – the communications cannot be considered to be anything other than a demand for access to the Series Feed. They do not constitute notice of a potential application of the Law or an effort to engage with the Event Owners but rather relate to the enforcement of that Law against unknowing and innocent parties.
Designated Events legislation is by its nature special as it seeks to interfere with the commercial freedom of the Event Owner whose event is Designated and hence must be exercised in a reasonable and proportionate manner with due regard for the interests of the Event Owner taking into account the special public interest and the national importance of the relevant Event which should be significant. Further the underlying rational of such legislation is to enable access on a Free to Air basis – that is already being achieved in Fiji for our Designated Events.
For example look at the analysis brought to bear on the Listed/Designated Events in the UK which was supported by research, the establishment of a review panel, and public consultation (including with affected sports) prior to the Department for Culture Media and Sport making a final determination:
“the criterion used in the review of the UK Designated Events was that an event had a special national resonance, not just significant to those who ordinarily follow the sport concerned; further, the event should serve to unite the nation and be a shared point on the national calendar. Events which met this criterion were viewed as likely to fall into one or both of the following categories:
• it is a pre-eminent national or international event in the sport;
• it involves the national team or national representatives in the sport concerned.
Satisfying the essential criterion meant that events would be considered for listing, however, the listing of such events was not to be automatic. An event was more likely to be listed if it exhibited particular characteristics making listing an apt response, such as:
• it was likely to command a large television audience;
• it had a history of being broadcast live on free-to-air services.”1 (1 Extract from: Free to Air Events, Summary report on Qualitative Phase of work undertaken for DCMS. Prepared for the Department for Culture Media and Sport (June 2009)).
We would therefore be interested in seeing the threshold test which was applied to both the listed Designated Events under the Law and also the scope of the Events so designated. Please can you provide this to World Rugby?
Can you also provide us with the rationale for requiring that Designated Events which are already available on a Free to Air basis should be shared with other broadcasters?
8. At no time has World Rugby communicated to your Office or Fiji TV that we are willing to share the Feed for the Series Event – our communications of 9 and 10 October to Fiji TV have been misinterpreted by you. The decision to share the Feed was taken by Fiji TV not World Rugby and was on foot of a demand from your office to do so. Further, as stated previously, no such confirmation was given verbally to Ms Baravilala, you are mistaken in that regard. You refer to various correspondences, to the extent that you are referring to other correspondences (from World Rugby) than those of 9 and 10 October to Fiji TV and 10 October to yourself please identify same.
9. We note your reference to obtaining co-operation from the FIFA Agent in the Pacific Islands. We have had confirmation from FIFA HQ in Switzerland that they did not give approval to share the Feed for the World Cup with anyone other than their Licensee. To the extent that you have written authorisation from FIFA to the opposite effect we will stand to be corrected – please provide a copy of same.
10. In relation to the sponsorship point raised, how will the Fiji Government guarantee that Fiji TV will not lose sponsors under the new Law, noting that this relates not just to existing contracts but also to all future rights that may be offered in respect of the World Rugby Designated Events in Fiji?
11. We are keen to understand how the revenue for World Rugby will be protected under the new Law. In the letter from your office to World Rugby of 10 October your representative states that “We [Fiji Government] can also confirm that cross-carriage of the Event would not in any way, deprive IB Tournaments Limited of any revenue, as the cost for the rights of the Event would be shared amongst all free to air broadcasters. Indeed there is the opportunity to increase revenue for IRB/IB Tournaments Limited”. Please elaborate on how revenue could be increased?
Please also indicate how the Fiji Government will guarantee a competitive market for World Rugby to ensure that the value of its Designated Events do not fall below their current position and augment in accordance with the increasing values of the Designated Events and general economic factors (such as inflation)?
If the Fiji Government really does value Rugby and Rugby Sevens it will also be committed to valuing and giving respect to the position of the governing body for World Rugby and thereby engage properly in meaningful discussions in relation to the events designated under the Law which are owned by World Rugby.
We trust therefore that you will want to engage in direct dialogue with us on the matters we have raised and which are affecting directly the transmission of the Dubai tournament in the Series. In the interim we will respond separately to Fiji TV’s letter to World Rugby of 3 December which regrettably brings the contract between them and us more acutely into focus, in particular given the representations made therein are entirely contrary to communications to date between us.
We await your considered response.
Yours sincerely,
______________________
Susan Ahern
Head of Legal & Legislative Affairs
_____________________
Murray Barnett
Head of Commercial, Broadcast & Marketing
Honourable Aiyaz Sayed-Khaiyum
Minister of Communications & Attorney General
7th Floor, Suvavou House
Box 2213, Government Buildings
Suva, Fiji
Copy to:
Honourable Prime Minister of Fiji
Office of the Prime Minister
New Wing Government Buildings
PO Box 2353 Government Buildings
Suva, Fiji
4 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 your letter of 3 December 2014 in respect of the above subject matter. While we appreciate the swift response we note that the letter does not address our expressed concerns but rather sought to reiterate the content of you[r] earlier communication which was insufficient and not conducive to an immediate positive outcome.
To recap, we World Rugby, believe that the failure of the Fiji Government to consult with the sports event owners whose events were Designated under the Television (Cross-Carriage of Designated Events) Decree 2014 (the “Law”) and your insistence that this Law has retrospective effect has resulted in Fiji TV being placed in breach of its exclusive contract with World Rugby.
Our efforts in communicating have been to establish a dialogue with the Fiji Government to address both the retrospective position and its impact and assess the future ramifications for the World Rugby events. We are conscious that it is the Fijian population who will be disadvantaged if the dialogue does not commence – but that is entirely within the hands of your Department. We note public statements in the Fiji press that the Fiji Government is hopeful of a positive outcome from discussions with World Rugby – to date there have been no direct discussion. We are asking for you to engage with World Rugby on these aspects, is the Fiji Government prepared to do so and if so can you identify the individual and means of doing so please?
Out of respect to you we have addressed the points raised in your letter of 3 December in numerical order for ease – we would ask that you also respond to our queries raised in both our letter of 2 December and below in the same vein.
2. Please identify specifically the “erroneous facts and assumptions” you say World Rugby has made and why you consider them to be “erroneous”.
3. Your 10 October 2014 letter does not address the impact of the new Law on existing contractual arrangements with parties (like World Rugby) who are not based in Fiji and 141204 World Rugby Letter to the Fiji govt re Decree (3) Page 2 of 5 whose events are taking place in territories outside Fiji nor indeed the future impact on competition in the marketplace in Fiji for such Designated Events.
Specifically there was no prior consultation with the Event Owners whose events were Designated (certainly not with World Rugby). We would be interested for example to understand how matches not involving the Fiji Sevens National Team could be of national importance in Fiji?
4. Designated Event Legislation is in existence in other territories, that is correct and some territories include Rugby as a designated event which may be required to be provided on a free-to-air requirements basis (live or delayed). However, such legislation is not as broad and all-encompassing as the Law which applies to all matches in the Rugby World Cup, the Sevens Rugby World Cup and the HSBC Sevens World Series. Quadrennial events such as an Olympic Games or World Cup have a rarity value, annual events less so. It is particularly noted that the HSBC Sevens World Series has been included which is in effect an annual league (or series of events) and no other sport has been affected in the same way – what is the rational for this?
In Australia, legislation is limited to Australia’s games and the quarter-finals, semi-finals and the final of the Rugby World Cup Finals and Australia’s international test matches. In the United Kingdom, legislation is limited to live coverage of the final match of the Rugby World Cup and deferred coverage or highlights of the other games in the Rugby World Cup Finals and Six Nations Rugby matches involving England, Scotland and Wales. Similarly in Ireland, the legislation covers live coverage of Ireland’s games in the Rugby World Cup Finals and deferred coverage Six Nations Rugby matches involving Ireland. In the USA the NFL have an anti-siphoning policy whereby they prevent one network from getting rights to all or a majority of matches – however Rugby is not a designated event in that territory.
World Rugby has engaged in recent times in the UK and Ireland Government processes for Listed/Designated Events which are regularly reviewed to assess their continuing relevance including meeting the threshold test of ‘national importance’. The economic impact of designation by national territories is a recognised consideration in their assessments of the ultimate Designated Events and the scope of such designation (which should at all times be reasonable and proportionate). World Rugby has yet to see evidence of any consultation efforts by the Fiji Government in relation to the Law and we are asking that you do so now and engage with Event Owners. Please confirm if you are prepared to engage in discussions with World Rugby in relation to the scope of the Designation under the Law?
5. We would appreciate viewing the footprint to which you refer with regard to Fiji TV and Fiji BC and specifically to review the overlap of that footprint as between these two FTA entities. We would also ask that the footprint of any other broadcaster in Fiji be included for completeness. The letter World Rugby received from Fiji TV dated 3 December is at odds with prior consultations we have had with them and therefore we would prefer to have a statistical / geographic representation presented in support of your assertions on this point. Can you please provide same?
6. To be clear, it is the actions of the Fiji Government through its interference with the HSBC Sevens World Series (the “Series”) Feed from the Gold Coast Sevens which has precipitated the present position and which will be directly responsible for the deprivation of access to the Feed of the Series to members of the Fiji public – it is not the fault of Fiji TV or World Rugby.
We appreciate that the Law leaves little or no margin of appreciation for Fiji TV to resist an order from the Government to share the Feed. Indeed we note that your office wrote to Fiji TV on 10 October and in that communication specifically stated that “Fiji TV should take note that any non-compliance with the Law is an offence which attracts heavy penalites [sic]”. World Rugby takes the view that there has been contractual interference and we are within our rights (and indeed our obligation to the whole of the global rugby family and supporters) to withhold the provision of the Feed to the Series from Fiji TV pending satisfactory engagement and clarifications from the Fiji Government – none of which have been provided to date.
If the Fiji Government is prepared to engage in immediate and constructive discussions with World Rugby, and to respect the exclusive nature of the Series Broadcast Rights while discussions are ongoing (i.e. ensure that the Feed is exclusive to Fiji TV) then we can consider making the Feed available to Fiji TV (only). Please advise if you are willing to accept this position pending the clarification of the matter?
7. The Law was introduced on 19 May 2014 and the Designated Events followed. World Rugby’s first communication from the Office of the Attorney General – which was to demand access to the Feed to the Series was on 8 October 2014. Communications with our broker in August were on a post facto basis after the Law was enacted – the communications cannot be considered to be anything other than a demand for access to the Series Feed. They do not constitute notice of a potential application of the Law or an effort to engage with the Event Owners but rather relate to the enforcement of that Law against unknowing and innocent parties.
Designated Events legislation is by its nature special as it seeks to interfere with the commercial freedom of the Event Owner whose event is Designated and hence must be exercised in a reasonable and proportionate manner with due regard for the interests of the Event Owner taking into account the special public interest and the national importance of the relevant Event which should be significant. Further the underlying rational of such legislation is to enable access on a Free to Air basis – that is already being achieved in Fiji for our Designated Events.
For example look at the analysis brought to bear on the Listed/Designated Events in the UK which was supported by research, the establishment of a review panel, and public consultation (including with affected sports) prior to the Department for Culture Media and Sport making a final determination:
“the criterion used in the review of the UK Designated Events was that an event had a special national resonance, not just significant to those who ordinarily follow the sport concerned; further, the event should serve to unite the nation and be a shared point on the national calendar. Events which met this criterion were viewed as likely to fall into one or both of the following categories:
• it is a pre-eminent national or international event in the sport;
• it involves the national team or national representatives in the sport concerned.
Satisfying the essential criterion meant that events would be considered for listing, however, the listing of such events was not to be automatic. An event was more likely to be listed if it exhibited particular characteristics making listing an apt response, such as:
• it was likely to command a large television audience;
• it had a history of being broadcast live on free-to-air services.”1 (1 Extract from: Free to Air Events, Summary report on Qualitative Phase of work undertaken for DCMS. Prepared for the Department for Culture Media and Sport (June 2009)).
We would therefore be interested in seeing the threshold test which was applied to both the listed Designated Events under the Law and also the scope of the Events so designated. Please can you provide this to World Rugby?
Can you also provide us with the rationale for requiring that Designated Events which are already available on a Free to Air basis should be shared with other broadcasters?
8. At no time has World Rugby communicated to your Office or Fiji TV that we are willing to share the Feed for the Series Event – our communications of 9 and 10 October to Fiji TV have been misinterpreted by you. The decision to share the Feed was taken by Fiji TV not World Rugby and was on foot of a demand from your office to do so. Further, as stated previously, no such confirmation was given verbally to Ms Baravilala, you are mistaken in that regard. You refer to various correspondences, to the extent that you are referring to other correspondences (from World Rugby) than those of 9 and 10 October to Fiji TV and 10 October to yourself please identify same.
9. We note your reference to obtaining co-operation from the FIFA Agent in the Pacific Islands. We have had confirmation from FIFA HQ in Switzerland that they did not give approval to share the Feed for the World Cup with anyone other than their Licensee. To the extent that you have written authorisation from FIFA to the opposite effect we will stand to be corrected – please provide a copy of same.
10. In relation to the sponsorship point raised, how will the Fiji Government guarantee that Fiji TV will not lose sponsors under the new Law, noting that this relates not just to existing contracts but also to all future rights that may be offered in respect of the World Rugby Designated Events in Fiji?
11. We are keen to understand how the revenue for World Rugby will be protected under the new Law. In the letter from your office to World Rugby of 10 October your representative states that “We [Fiji Government] can also confirm that cross-carriage of the Event would not in any way, deprive IB Tournaments Limited of any revenue, as the cost for the rights of the Event would be shared amongst all free to air broadcasters. Indeed there is the opportunity to increase revenue for IRB/IB Tournaments Limited”. Please elaborate on how revenue could be increased?
Please also indicate how the Fiji Government will guarantee a competitive market for World Rugby to ensure that the value of its Designated Events do not fall below their current position and augment in accordance with the increasing values of the Designated Events and general economic factors (such as inflation)?
If the Fiji Government really does value Rugby and Rugby Sevens it will also be committed to valuing and giving respect to the position of the governing body for World Rugby and thereby engage properly in meaningful discussions in relation to the events designated under the Law which are owned by World Rugby.
We trust therefore that you will want to engage in direct dialogue with us on the matters we have raised and which are affecting directly the transmission of the Dubai tournament in the Series. In the interim we will respond separately to Fiji TV’s letter to World Rugby of 3 December which regrettably brings the contract between them and us more acutely into focus, in particular given the representations made therein are entirely contrary to communications to date between us.
We await your considered response.
Yours sincerely,
______________________
Susan Ahern
Head of Legal & Legislative Affairs
_____________________
Murray Barnett
Head of Commercial, Broadcast & Marketing
