NFL Fails to Intercept Game Pass Lawsuit Over Super Bowl LIV

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A New York federal judge has refused to dismiss a lawsuit brought by an Australian-based “long-time fan of Andy Reid,” over a substandard stream of Super Bowl LIV.

In July 2019, New South Wales resident Sietel Singh Gill paid the Australian dollar equivalent of $200 for an NFL Game Pass subscription, which would allow Gill to stream games during the 2019 regular season and postseason. Gill had been a Game Pass subscriber since 2013. His 2019 payment came by way of automatic renewal.

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In early 2020, Gill looked forward to watching Reid’s Kansas City Chiefs play the San Francisco 49ers in Super Bowl LIV. Instead, he says he suffered through a miserable viewing experience, with poor streaming and repeated crashes. Gill aims for his federal complaint to be certified as a class action, potentially on behalf of as many as 700,000 international consumers from roughly 180 countries who might have been similarly let down by Game Pass.

Gill and others, his attorneys write in the complaint, “were unable to livestream crucial portions of the game, including the final three minutes, when the teams were locked in a one-score game.” As Gill sees it, Game Pass dropped the ball when it mattered most: providing an uninterrupted live stream of the Super Bowl.

“Live viewing of the Super Bowl,” the complaint adds, “is a non-substitutable good.” Gill’s attorneys insist that “even uninterrupted viewing of the game later is [not] an adequate substitute for live viewing.” This is “because the publicity and social media commentary on the game inevitably means that a person viewing the game later will have already learned of the outcome of the game.”

As reported by Yahoo! right after Super Bowl LIV, fans took to Twitter to express outrage over Game Pass. One wrote: “NFL Game Pass crashing for millions of people one single minute into the BIGGEST game of the year is the height of professional negligence. #disgrace”

Another bemoaned, “@NFL What’s happening with NFL game pass in Sydney, Australia? Pretty unfortunate to pay for the service but not have it work on the Super Bowl #nflgamepass.”

Gill also blames Game Pass’ customer service for failing to make amends. He says that only those subscribers who complained were offered a $10 “partial refund,” an amount which Gill blasts as woefully inadequate given that he missed the opportunity to watch Reid coach his team to a 31-20 victory as it happened live.

Gills’ complaint, which asserts his Game Pass subscription lacked any provision that would compel arbitration, contains claims for breach of contract and breach of the implied warranty of merchantability. The warranty refers to an implied assurance that a good meets a reasonable buyer’s expectations.

The NFL hoped to persuade Southern District of New York Judge Paul Engelmayer, a former federal prosecutor and Wall Street Journal reporter, to dismiss Gill’s complaint. The league insists that it was not in contract with Gill. It stresses that under the terms and conditions of Gill’s 2019 renewal, his business was conducted with two foreign companies. At some point between 2013 and 2019, the NFL apparently partnered with the Cayman Islands-based Overtier Operations and the Italy-based Deltatre S.p.A. to provide Game Pass.

Gill, for his part, maintains the NFL is trying to circumvent responsibility by directing blame onto its vendors and agents. Gill further insists he never consented to his rights being assigned to companies in the Cayman Islands and Italy.

In his Nov. 2 order, Judge Engelmayer wasn’t persuaded by the NFL’s defense, at least at the motion-to-dismiss stage.

The judge emphasized that when Gill originally purchased Game Pass in 2013, it’s unclear to what degree he did so with the NFL. But he added that the 2013 terms and conditions “refer to the NFL in a manner consistent with Gill’s allegation that the NFL was a party to the agreement with him at the time, albeit not the entity that operated the product.” Also, since Gill’s subscription was automatically renewed each year thereafter, it’s unknown if he was notified of any changes in rights.

Judge Engelmayer’s order doesn’t mean the NFL will lose. The case could be dismissed at a later stage, end in a settlement or go to a jury trial with the NFL prevailing. Also, whether the case will be certified as a class action, which would be far more financially threatening to the league, will necessitate separate pleadings and hearings.

But the immediate outcome favors Gill. His case proceeds to the discovery stage. Gill’s legal team, which includes attorney Karl Kronenberger and several attorneys from Pollock Cohen, can soon demand sworn testimony from league officials and seek emails and other records that are relevant to the case. The parameters and timing of discovery requests will be set by Judge Engelmayer in forthcoming proceedings.

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