Do NFL team that impose restrictions on how they compete in licensing broadcast violate antitrust laws, a group of NFL Sunday Ticket members sued the group nine years ago over a issue that has sparked competitive dispute since the 1950s?
A jury trial for that crucial legal issue is set to take place in U.S. District Judge Philip Gutierrez ‘ Los Angeles courtroom on Wednesday. Last month Gutierrez certified In Re: NFL’s” Sunday Ticket” Antitrust Litigation as a class action on behalf of more than 2.4 million residential clients and more than 48, 000 cafes, restaurants and other industrial establishments that purchased Sunday Ticket from June 17, 2011 to Feb. 7, 2023 ( these times reflect appropriate statute of limitations ).

Sunday Ticket is available through YouTube TV for$ 349/year, though various discounts, promotions and add- ons can change the price. It was previously accessible through DirecTV.
On Wednesday, both sides presented to Gutierrez a proposed joint statement of the case, in which they summarized the dispute. The courtroom could produce fascinating and revealing witness testimony with several bold-named professional football players if a last-minute settlement does not prevent the trial from proceeding. The defendants ‘ attorneys have previously indicated that they can call Robert Kraft, the owner of the Dallas Cowboys, and Jerry Jones, the owner of the New England Patriots, to the stand. The defendants, meanwhile, plan to call NFL commissioner Roger Goodell to the stand for 45 minutes of live testimony.
Goodell, conceivably, would like to avoid a situation where he is cross- examined by opposing counsel, especially considering recent developments. A different court earlier this year unveiled transcripts of a 2022 deposition Goodell gave in a class-action lawsuit against the NFL, alleging the league was responsible for the long-term brain damage they suffered while playing. Goodell made a number of comments in his testimony that attracted criticism and appeared to cast doubt on the scientific consensus regarding the relationship between concussions and specific brain disorders.
This latest class- action suit, no doubt, pales in terms of gravity.
The league and teams are breaking antitrust laws, in the eyes of the plaintiffs, by limiting access to certain out-of-market broadcasts through Sunday Ticket, and raising fans ‘ costs. NFL teams work together to respect other teams ‘ exclusive broadcasting rights and thereby agree to respect them. For instance, the Detroit Lions do n’t have to worry about other NFL teams pumping game broadcasts into Detroit because of this arrangement.
But NFL teams could operate differently. The Patriots could negotiate with a television network to broadcast their games in Lions ‘ country instead of having New England Patriots fans who live in Detroit having to purchase Sunday Ticket to watch their favorite team. Patriots fans might be able to watch New England’s games for free or at least for less than what they paid for the Sunday Ticket in an alternate world where teams invade other teams ‘ broadcast territories.

The plaintiffs will rely heavily on economist Daniel Rascher, who previously served as a plaintiffs ‘ expert in numerous antitrust lawsuits brought by athletes against the NCAA, including House v. NCAA. In the meantime, the NFL will primarily rely on the expert testimony of Douglas Bernheim, a Stanford economist who previously testified for the plaintiffs in the infamous vitamin C price-fixing controversy and the most recent Epic Games v. Google lawsuit.
If the plaintiffs for” Sunday Ticket” win and the victory is upheld on appeal to the U.S. Supreme Court and the Ninth Circuit, it could result in more than$ 6 billion in damages and require the NFL to change its broadcasting laws.
The issues presented by In Re: NFL’s” Sunday Ticket” Antitrust Litigation stem from the unique business structure of pro leagues, especially the NFL. The NFL oversees 32 individually owned franchises, which, of course, compete on the field and off- the- field, but they also collaborate, sometimes necessarily, to operate a functional pro sports league.
To that end, NFL teams must agree on game rules. Teams would n’t be able to compete in competitive games if they could n’t agree that a touchdown count as six points or that a fumble occurs when a player has possession of the football but loses it before he’s downed. But as the U. S. Supreme Court held in American Needle v. NFL ( 2009 ), teams do n’t have to collaborate on licensing of intellectual property for apparel. Instead, they could compete against one another, with one team signing a contract with Nike, another with Reebok, yet another with New Balance, and so on.
The NFL’s involvement in broadcasting sparked legal issues as far back as the 1950s. The NFL was sued by the U.S. Department of Justice on antitrust grounds, challenging how teams agreed to stay away from other teams ‘ home turf (typically 75 miles in every direction from the city’s outer limits of the city where they play ) in the league constitution and bylaws. Out-of-town TV stations were unable to compete to acquire game broadcasts that could be aired to fans because of this restriction. In a 1953 decision, a federal judge ruled that NFL fans should not be denied the benefits of increased broadcasting competition.
The Sports Broadcasting Act was signed into law by President John F. Kennedy in 1961, which marked a significant legislative breakthrough for the NFL. The SBA provides a limited antitrust exemption to professional football, basketball, baseball and hockey leagues when they negotiate a national TV contract with a network that provides” sponsored telecasting” ( meaning free and over- the- air ) of games.
The SBA captures a seemingly antiquated broadcasting world where Americans watched a small number of TV channels that an antenna on their TV or roof picked up. The broadcasts were “free” in the sense that Americans did n’t pay to watch them, but because networks sold airtime for commercials, the arrangement still made economic sense. Because they are not over-the-air and free, the SBA does not apply to cable TV, streaming, or paid satellite TV.
Case closed? Not so fast.
The NFL has a bevy of counter arguments that could persuade a jury or, if necessary, an appellate court.
For one, the league maintains that the plaintiffs ‘ case could unravel an arrangement that fans—consumers—seem to like. Last year, the NFL accounted for 93 of the year’s 100 most- watched TV broadcasts in the U. S. No other league, sport, politician, TV show—really anything—credibly competed with NFL broadcasts. In court filings, the league has warned that if teams ca n’t collaborate in broadcast arrangements, the economics of NFL broadcasting would change and there would be unwanted consequences. Some games might not be available on free TV options. Some teams might switch their games from their free TV to their premium cable.
In stark contrast to other leagues, where local fans frequently have to pay to watch regular season games on television, the league asserts that its TV arrangement “is one of the most consumer-friendly entertainment products in the world.”
The ostensibly antiquated SBA may also be applicable in the trial. For one, consumers can still use antennas to pick up local and even out- of- town broadcasts. Some reasonably inexpensive antennas are available for purchase that claim to record broadcasts from far away. For one thing, the SBA is involved if, as the NFL claims, the league’s ability to air free games locally would suffer if the litigation necessitates changes to the distribution of broadcast rights.
While the NFL may have persuasive legal arguments, it is arguably taking a chance by going to trial. Some of the NFL’s most coveted insiders could be subject to difficult questions under the oath and be forced to disclose business details they prefer to keep private. If the case settles before jury selection begins on Wednesday, do n’t be surprised.