The National Football League has agreed that a blockbuster antitrust case examining the way its games get televised will commence on Feb. 20, 2024. Although that date (pending a federal judge’s approval) is more than three years away, it may loom over the league’s coming negotiations with TV networks and streamers for new rights packages.
The lawsuit comes from bars, restaurants and other retail establishments who say that they are paying supracompetitive prices for DirecTV’s “Sunday Ticket.” But for alleged collusion and other restrictions, these plaintiffs believe that the NFL’s 32 teams might compete with each other by streaming out-of-market games to fans. More competition, they argue, would result in greater output (multiple versions of a telecast) and lower prices.
The NFL responds that cooperation among teams is necessary for everything from kickoff time to the rules of the game. They defend the system of pooling rights for games as pro-competitive.
In Aug. 2019, the 9th Circuit Court of Appeals overturned dismissal of the lawsuit. The appellate panel ruled that the plaintiffs had plausibly alleged injury to competition via the league’s interlocking agreements with broadcasters, and that there wasn’t binding precedent requiring the teams and the NFL to cooperate in order to produce the telecasts. “In the absence of a legal requirement that the NFL teams, NFL, and broadcasters coordinate in filming and broadcasting live games, the Los Angeles Rams (for instance) could contract for their own telecast of Rams games and then register the telecasts for those games with the Rams (and perhaps the team against whom they are playing). Only the agreements that are the subject of plaintiffs’ antitrust action prevent such independent actions. … Indeed, the history of the NFL, as well as the practice in other professional sports leagues, supports our conclusion.”
The NFL then attempted to get the Supreme Court to tackle the case, but last November, the high court rejected any instant replay. (Justice Brett Kavanaugh was inclined to accept the NFL’s joint venture argument but he was apparently outvoted by colleagues.)
The case has now traveled back to a Los Angeles federal court where on Tuesday upon the judge’s direction, the sides agreed on the timing for trial.
Three years is certainly a long time away, but court schedules have been rocked by the COVID-19 pandemic, and additionally, the parties will likely engage in a discovery process that could entail handovers of contracts and depositions for league and broadcast executives.
Meanwhile, the NFL’s deal with ESPN is up after the 2021 season and the NFL’s deals with other networks is up after the 2022 season. The league has already made moves to bring more games online (for example, allowing Amazon Prime to have exclusive rights to a few games) and it’ll have to engage in negotiations knowing some are looking to force a revolution in sports telecasting. Of course, it’s also possible that a settlement avoids the need for trial. In the last few years, baseball fans and hockey fans each brought their own class actions and scored modest pricing discounts.
