The NFL’s hope that the U.S. Supreme Court would review and reject a case brought by Sunday Ticket subscribers was dashed on Monday by Justice Brent Kavanaugh. Writing for the Court, the 55-year-old jurist—and Washington Team fan—denied a petition for certiorari by league attorneys in Ninth Inning v. NFL and DirecTV (also known as In re NFL’s Sunday Ticket Antitrust Litigation). The case, which could eventually become a class action, centers on the league’s longstanding practice of teams selling their broadcasting rights in bundled TV packages.
NFL attorneys sought review of a 2019 ruling by the U.S. Court of Appeals for the Ninth Circuit. In an opinion authored by Judge Sandra Segal Ikuta, the Ninth Circuit reversed a trial court’s dismissal of the case. As a practical matter, Kavanaugh’s order means that Ninth Inning persists as a threat to the league and its broadcasting partners.
While the NFL has increased access to local games via broadcast and streaming, live out-of-market game telecasts remain tied to DirecTV’s Sunday Ticket package, as they have since the plan was created in the 1990s. In 2014, the two sides extended their partnership at a cost of $1.5 billion per year.
Notably, other leagues have made their out-of-market packages available through multiple distributors, often including league-owned streaming platforms. This year, the NFL and DirecTV allowed those without satellite to buy the digital package, though at roughly $300, it still costs more than the NBA, NHL or MLB’s equivalent. A license is more expensive for bars and restaurants, costing as much as $120,000, depending on the size of the establishment.
The NFL is unique among major leagues in that regular season broadcast rights are exclusively sold to networks on a national basis.
The potential legal problem with this framework lies in Section I of the Sherman Antitrust Act. Competing businesses—including NFL teams—must refrain from anticompetitive collaborations that harm consumers, such as through higher prices or diminished choice.
The plaintiffs, who include out-of-town fans, contend that the NFL’s relationship with DirecTV is blatantly anticompetitive. They argue that if the 32 NFL franchises individually sold their broadcasting rights, there would be much more local competition by TV networks. There would be more games for fans to watch freely, too.
Judge Ikuta reasoned that the plaintiffs have “plausibly” made a case. In a more competitive situation where individual teams sold their broadcasting rights, each could sell at “whatever price it could get.” Prices for these games, Judge Ikuta observed from the plaintiffs’ arguments, would vary based on the prominence of the teams and other factors.
NFL teams have long refused to poach each other’s viewers. Not only do teams pool their broadcasting rights in exclusive packages, but Article X of the NFL bylaws expressly disallows teams from broadcasting games into other teams’ “home territories” (generally defined as 75 miles around a team, with exceptions made for cities with multiple franchises).
This legal controversy isn’t new to the NFL. In 1953, a federal judge held that the NFL denying team-to-team competition in broadcasting violated antitrust law. The league later lobbied for the passage of the Sports Broadcasting Act of 1961, which exempts football, basketball, baseball and hockey leagues from Section 1 of the Sherman Act when they sign national TV deals. But there’s a catch: The SBA applies to “sponsored broadcasting” of games, an expression that concerns free, over-the-air games. Games broadcast on DirecTV or cable thus fall outside the SBA’s scope and are vulnerable to antitrust scrutiny.
The Court’s denial of certiorari is hardly surprising. In the typical term, cert is granted at a low rate of 1% to 2%. It also requires at least four justices to vote in favor. Further, as Kavanaugh stressed, the NFL’s petition arrived in an “interlocutory posture.” This expression captures the underdeveloped nature of the litigation, as the pretrial summary judgment stage (where additional legal analysis would take place) hasn’t yet arrived.
Kavanaugh’s statement nonetheless gives hope to NFL attorneys. He underscored that the Court does “not necessarily” agree with the Ninth Circuit that teams empowering the league to sell rights to a single buyer (DirecTV) is problematic. Kavanaugh insisted that “antitrust principles and precedents” for joint venture leagues—where independently owned franchises agree on procedures to advance the league as a whole—appear to support the NFL. To that end, Kavanaugh posited that “antitrust law likely does not require that the NFL and its member teams compete against each other with respect to television rights.” Kavanaugh’s choice of words reinforces arguments by the NFL, which maintains that joint venture leagues are entitled to wide discretion under antitrust law. Kavanaugh also questioned whether the plaintiffs have standing to sue the NFL since they purchased the Sunday Ticket from DirecTV, not the NFL.
The latest twist in the case comes at a crucial time for the NFL, as it negotiates new long-term deals with TV partners. The league is expected to renew many of its agreements with its current partners, though new tech players could also end up with game inventory. Sunday Ticket has been discussed as a potential target for tech giants like Google, Amazon and Apple, who themselves are also facing antitrust allegations.
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