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August 9, 2013updated 12 Aug 2013 1:03pm

English cricket governing body ‘unlawful’ in trying to freeze out sofa-based Test commentary team

By PA Media Lawyer

The England and Wales Cricket Board has been accused of abusing its dominant market position after becoming involved in a legal row with a sports magazine over Test match coverage and an internet cricket commentary site.

Andrew Miller, editor of The Cricketer, was banned for a time from the Test matches at Trent Bridge, Lords and for the first two days of play at Old Trafford after using a Twitter message on the first day of the Trent Bridge Test match to encourage his followers to tune into Test Match Sofa, an internet broadcast of ball-by-ball commentary which was started by a group of cricket enthusiasts in 2009 and bought by the magazine last year.

That tweet led to the ECB withdrawing his accreditation.

Test Match Sofa, which operates from a house in London, uses Sky Sports coverage of test matches as the basis for its own minute-by-minute/ball-by-ball coverage of the matches, done as radio broadcasts across the internet.

The website, which makes no pretence to be at the match on which its enthusiasts commentate, has a commercial subscription with Sky Sports, and says it is acting with Sky's full knowledge.

When the ECB subsequently agreed to allow the journalist back, it imposed conditions which included a ban on mentioning Test Match Sofa – and then imposed a complete ban on tweeting during play

Miller's accreditation to attend and report on the last four days of the Trent Bridge Test and  the whole of the second Test, at Lord's, was withdrawn by the ECB after he refused to agree to a ban on any tweeting during play.

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This condition was subsequently withdrawn after two days of the Old Trafford Test match, with the ECB's lawyers explaining that it was the result of a misunderstanding, meaning that a journalist from The Cricketer magazine was able to attend the last three days of the Test match  at Old Trafford and again for the Fourth Test match at Chester-le-Street which started today.

But the other conditions, prohibiting mentions of Test Match Sofa, are still in place.

Nick Goldstone, a partner at law firm Davenport Lyons, which is representing The Cricketer, said the ECB appeared to be trying to freeze Test Match Sofa out of the market, although Test Match Sofa was not infringing anyone's rights by basing internet radio coverage on Sky's broadcasts.

"We consider the ECB's conduct to be unlawful and an abuse of a dominant position in the market place," he said.

"They have clearly attempted to  impose wholly unreasonable restrictions on The Cricketer."

Test Match Sofa – its website describes it as "The alternative cricket conversation" – has reportedly upset the team at the BBC's Test Match Special (TMS), which pays for rights to cover the Ashes ball by ball on BBC Radio.

But Goldstone said the web-based service was aimed at a younger and different demographic, and had tens of thousands of listeners, and presented no threat to Test Match Special, which had an audience of millions.

Asked about the dispute, an ECB spokesman said: "Our repeated view is simple.

"More than 750 journalists have signed our terms and conditions to attend cricket played under the ECB auspices this year which The Cricketer also signed.

"The Cricketer are attending the fourth Investec Ashes Test match at Durham as they did at Trent Bridge and Old Trafford. They chose not to attend the Lord's Test."

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