NFL Warns Sunday Ticket Litigation Could Raise TV Viewers’ Costs

In a new court filing, the NFL argues that a group of NFL Sunday Ticket subscribers did not establish why their case should be certified as a class action. The league insists the subscribers have proposed “gerrymandered” classes that are “fundamentally inconsistent with their theory of antitrust liability.”

In Re: NFL’s “Sunday Ticket” Antitrust Litigation has been in California federal courts since 2015. The subscribers insist the NFL and DirecTV have unlawfully conspired to prevent individual NFL teams from competing with one another in the sale of broadcasting rights to out-of-town markets.

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In a more competitive market, the subscribers assert, teams would sell broadcast rights to markets where many out-of-town fans live. But NFL rules prevent teams from poaching one another’s broadcast territory. Out-of-town fans eager to watch their favorite team must buy a bundled package, the Sunday Ticket, for $293.94. (The NFL-DirecTV deal will conclude at the end of the 2022 season, which the league argues is why any court-imposed injunction would be moot “by the time this case is resolved.”)

The subscribers have asked Judge Philip Gutierrez to certify two classes. One would include residential subscribers who bought the Sunday Ticket after June 17, 2011; the other would cover commercial establishments that have subscribed during the same period and that cater to fans. Gutierrez will only certify the two classes if they contain claims that are, among other things, typical of subscribers and raise common questions of law and fact.

Beth Wilkinson, whom the league retained in the Washington Commanders investigation, is one of the attorneys representing the NFL. In a Nov. 5 memorandum in opposition to class certification, the league maintains there are several flaws with the proposed classes.

One alleged flaw is that the subscribers “seek to represent only a fraction of Sunday Ticket subscribers.” Another is so-called “conflicts between the classes.” The NFL asserts that while “residential class members may want easier access to out-of-market games, [that access] might harm the commercial class members, both by allowing residential consumers to stay home, and allowing rivals to more easily access games that might draw customers.”

The league also maintains that changing how NFL broadcasts are distributed would pose varying impacts, with some fans better off and others worse off. The league touts its current arrangement. Regular season games for a local team, the league writes, “are available on free broadcast television” due to the league’s licensing agreements with CBS and Fox. (In other words, fans who want to watch games just need a television and an antenna, not a full cable subscription.) The NFL also stresses that “every location in the country is guaranteed to have available access to three or four regular season games for free every Sunday afternoon.”

The NFL warns that adopting one of the distribution models proposed by the plaintiffs could have unwanted consequences. One potential arrangement is to make distribution of NFL games similar to those for college football, where each game is available on one channel. That type of distribution, the league claims, would mean that “several games are not available on free broadcast television anywhere” and some local teams’ games could move to premium cable channels. The league uses these arguments to opine that a class would be ill-suited to address differing consequences for individual subscribers.

A hearing on class certification is scheduled for Jan. 23, 2023. If the classes are certified as proposed, millions of people would be set to join the litigation. The plaintiffs say that the residential class would include no fewer than 2.4 million members and the commercial class would include no fewer than 48,000 members. The NFL could face many millions of dollars in potential liability and may become more inclined to negotiate a settlement. A trial is currently set for Feb. 22, 2024.

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