TV blackouts case against MLB at critical point

Bud Selig is loving this September. For somebody as hopelessly old-school as he wants people to believe he is, Selig adores this new playoff format that has more than half the teams harboring postseason dreams. Engaged fans, meaningful games, great debates, money-money-money – baseball at its Seligian finest.

If only everyone could watch it.

One of Selig's great tenets as commissioner for two decades now has been inclusion and equality. Why that same ethos doesn't apply to Major League Baseball's rules that black out the most important games this year from millions of televisions around the country remains a slice of hypocrisy he is unwilling to remedy.

Soon, thankfully, he may have no choice.

The May 9 antitrust suit filed by four fans against MLB and the National Hockey League is nearing a critical moment, when federal Judge Shira Scheindlin, of New York's Southern District, could decide whether she'll hear the trial. Sometime Friday, baseball will file a brief in Garber et al v. MLB that tries to convince Scheindlin to dismiss the case.

Sports law experts versed in Garber et al v. MLB don't see that outcome as likely – and do believe the plaintiffs' case is strong enough to at least force MLB to reconsider the antiquated policy that leaves some areas with as many as six games a night blacked out because the league refuses to rid itself of the absurd territorial rights that govern its broadcasting schedule.

"I don't think they're going to agree to radically change things," said Michael McCann, director of the Vermont School of Law's Sports Law Institute and a legal analyst for Sports Illustrated. "I don't think they're going to be intimidated by this – yet. But that's one benefit of filing a lawsuit. It sometimes encourages 'voluntary' responses."

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This is not a normal antitrust case, in which the division of a market happens in secret and the question is whether parties have conspired to set prices. Sports leagues are unique businesses in which teams that compete against one another pool everything from corporate advertising to broadcasting revenues to their greatest product – the postseason.

Consequently, the plaintiffs' goal is to show that by packaging its out-of-market games via Extra Innings on TV or MLB.tv on the Web, and continuing to black out places as disparate as Iowa, Las Vegas, Buffalo and Hawaii, baseball has unfairly restrained trade. Case law supports their contention, according to experts, with the American Needle v. NFL decision by the Supreme Court ensuring the league can't band together as one business instead of 30 separate companies.

One of MLB's chief arguments – blackout rules do not equal restraint of trade – could have trouble holding up in court, as could the idea that it's competing against the NFL, NBA, movies and other forms of entertainment, not with each other.

"Their argument is they're not trying to do this to hurt fans," said Gabe Feldman, a law professor and director of Tulane Sports Law Program. "They're not doing this to hurt individual teams. They're doing this for the better of the sport and fans."

The truth is much simpler: Baseball is doing this because the obscene amounts of money networks will pay for exclusive broadcasting rights. We saw this in action recently, with Fox, Turner and ESPN combining to spend $12 billion for the next eight years of national broadcasts. Live sports prints TV money, and local blackouts reinforce the idea of exclusivity: either buy the cable/satellite package that includes the channel on which the games are broadcast or run the risk of not seeing them.

Fans' hopes lie in the hands of Scheindlin, whom Bill Clinton appointed to the bench nearly two decades ago to replace Louis Freeh, author of the scathing report against Joe Paterno. Scheindlin is no stranger to big sports cases. She ruled in favor of Maurice Clarett's challenge to the NFL's early-entry rule, saying it was an antitrust violation and he should be able to enter the draft before his junior year; the ruling later was overturned on appeal.

If Scheindlin agrees to take on the case, MLB could pursue a summary judgment – a quick end to the case without a trial. The likely denial of that would lead MLB to a place where it prefers not to go: discovery. The long, arduous, potentially damaging process leaves baseball prone and its internal discussions privy to the public. The embarrassing documents released this week about an NCAA official urging the abolition of the phrase "student-athlete" and EA Sports assigning names to video-game players before erasing them came from O'Bannon v NCAA, a landmark suit the NCAA decided to fight.

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"Depending on the cases, the leagues aren't afraid to litigate," Feldman said. "The problem with litigating antitrust cases is it's wildly unpredictable. It's not a foregone conclusion they settle.

"It's action like this that often causes the rules to change or causes leagues to soften them."

That is the likely route, much more than MLB unleashing its antitrust exemption. While powerful in name, the exemption does not extend to broadcasting, according to case law, and playing such a trump card could render it null with a loss in the case.

Either way, anything short of Scheindlin tossing the suit is bad for MLB. Antitrust litigation takes years and is wildly expensive. Settling means potentially disrupting the massive bull market for local TV deals, the sort that bumped the Los Angeles Dodgers' selling price to more than $2 billion.

"MLB could modify its TV and Internet broadcasting arrangements in a way where they don't violate their existing contracts but ensure there's more fan access," McCann said.

And that's all baseball fans want. One executive once relaxed in an airplane, watching a game that was blacked out locally. When asked why he wasn't blacked out, he chuckled. He didn't own a magic iPad. The league gave him a workaround code to nullify the blackouts.

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Garber et al v. MLB is the workaround code for the working person. It is the suit behind which every baseball fan should stand. It's 2012, where everything is available everywhere, and pure greed is keeping baseball off our TVs, our tablets, our laptops and our phones. If baseball refuses to budge on an issue so archaic, so absurd and so blatant in its indifference toward people who want to buy one of their products, the league should suffer through the embarrassment of getting clowned by the fans whom it clowns with black TV screens. It may move slowly – most antitrust lawsuits do – but if this succeeds, it will be a decades-forward leap in one fell swoop.

With it the charade would end and people everywhere would partake of the races – the games that start in April and climax in September and all the great ones in between. Everyone could watch baseball.

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