The Litigator

THE LITIGATOR

Commentary on Law Affecting Business

The Litigator
AGM :: Affleck Greene McMurtry LLP

THE LITIGATOR

Affleck Greene McMurtry LLP
365 Bay Street, Suite 200  ·  Toronto, Canada
416 360 2800  ·  info@agmlawyers.com  ·  www.thelitigator.ca

Rogers-NHL Broadcasting Agreement Not Off-Side

The exclusive national between Communications Inc. () and the National Hockey League () raises no competition concerns at this time, the Competition Bureau has announced.

The 12-year, $5.2 billion deal reached by Rogers and the NHL in advance of the 2014-2015 season upset the long-standing status quo of national hockey broadcasting rights previously shared by TSN and CBC. Exclusive broadcasting rights to all national NHL games is now held by Rogers, along with the right to produce and retain the broadcasting revenue of Hockey Night in Canada.

Canada’s competition law referee considered whether the agreement gave Rogers enhanced market power that would result in a substantial lessening or prevention of competition in one or more relevant markets.

In particular, the Bureau was concerned with Rogers’ ability to raise the wholesale price paid by television distributors for Roger’s Sportsnet beyond a competitive level. However, given that distributors viewed Sportsnet as a “must-have” channel before the agreement, the Bureau found that the agreement is unlikely to impact the bargaining dynamic between Rogers and distributors. Moreover, CRTC dispute resolution mechanisms continue to be available to remedy future carriage fee disputes with Rogers.

Additional concerns that advertising rates during NHL games would be negatively affected were allayed by the Bureau’s determination that advertising rates are not driven by the price of the broadcasting contract, but by viewership. Even after the agreement came into effect, advertisers continue to be satisfied with their ability to negotiate acceptable rates with Rogers and the availability of effective alternative advertising strategies.

Finally, the Bureau’s analysis revealed that national NHL broadcasting rights were not essential to the ability of competitors such as TSN to compete in the sports programming market, particularly in light of the fact that when Sportsnet first entered the market, it did not have any national NHL broadcasting rights, yet was able to compete as a significant specialty sports programming channel.

The Bureau was therefore satisfied that the agreement would not result in a substantial lessening or prevention of competition in the sports programming market. Unless and until new and compelling evidence comes to light that the arrangement has harmed competition, Rogers will continue to have exclusive rights to air all national NHL games, including the Stanley Cup Playoffs, until the close of the 2025-2026 season.

Daphne Hooper
Affleck Greene McMurtry LLP

Daphne Hooper

Daphne is a former associate of Affleck Greene McMurtry LLP

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