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Notes: NFL seeks Supreme Court hearing on Sunday Ticket

Upon further review, will the court agree with the league and AT&T?

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DIRECTV CELEBRATES 25th Season of NFL SUNDAY TICKET Photo by Stefanie Keenan/Getty Images for NFL SUNDAY TICKET on DIRECTV

Currently, each NFL regular season game has only one televised presentation, whether it is on FOX, NBC, ESPN, CBS, or the NFL Network. For anyone outside of the free broadcast area for whichever network has the rights to show the game, the only legal option for accessing the Sunday afternoon games on CBS and Fox is to buy the Sunday Ticket package. For example, in the Washington DC area, the only way I would be able to legally watch the Detroit Lions live—unless they were in a special time slot like Thanksgiving, actually made the playoffs (lolz), or play locally against Baltimore or Washington—is if I purchase Sunday Ticket.

A class action lawsuit filed in 2015 against the NFL and AT&T alleged that the interlocking agreements for Sunday Ticket illegally suppressed the availability to consumers of choices in consuming league games. In 2017, the current DirecTV case was dismissed by the District Court, but on appeal the Ninth Circuit reversed the dismissal in 2019, allowing the original lawsuit to proceed.

In response to the 2019 reversal, the NFL and AT&T asked for a stay (which was granted) until they could go higher up the chain to try and get the Supreme Court to override the Ninth Circuit. Coming some time in the next week is the decision by the Supreme Court on whether to hear that appeal by the NFL and AT&T to continue protecting Sunday Ticket.

MLive’s Ben Raven has an article on the pending DirecTV case certiorari application. What we are watching for is whether or not the Supreme Court decides to hear the case at all; if they do not, the Ninth Circuit reversal will stand and the case will go back to the original District Court and proceed.

From the Court of Appeals Ninth Circuit in 2019:

Specifically, the complaint alleges that absent the anti-competitive Teams-NFL and NFLDirecTV Agreements, the telecasts broadcast solely on Sunday Ticket would be available through other distributors. Additionally, each NFL team could make its own arrangements for telecasts of its games, and could contract with competing distribution channels or media, including other cable, satellite or internet carriers or competing networks. As a result of competition, the complaint alleges, a greater number of telecasts of NFL games would be created, and those telecasts would be more accessible to more viewers at lower prices.

Normally, the league would be protected in its monopolistic control over televised presentation of its games by an explicit exemption to the Sherman Antitrust Act built into the Sports Broadcasting Act of 1961 (which the NFL lobbied for). However, the SBA has been ruled in the past to only apply to over-the-air broadcast television specifically supported by advertising and otherwise provided free to the general public. Thus, DirecTV’s Sunday Ticket does not fall under that SBA umbrella, and the Ninth Circuit noted the league and AT&T were not even attempting to argue that it should (p. 18).

The most interesting argument made by the league, which was rejected by the Ninth Circuit, was the NFL’s attempt to define the relevant economic market as the number of games for which a televised broadcast exists (p. 29) . Since “every regular season NFL game is broadcast over free television in some geographic area, and therefore, the entire potential supply of NFL game broadcasts is produced and distributed to the public.“ In other words, as long as at least some people (the local markets) get to see it for free, that’s good enough.

The reply by the Ninth Circuit in its decision hit close to home for me (p. 28):

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.

DirecTV and anything else like it that bundles everything into a package for all games requires a consumer to pay for everything whether they want to or not. Suppose there are fans like myself who do not care to watch any games unless the Lions are playing in it. If I could buy a package straight from the Lions to stream only those games the Lions are playing in for an a la carte price presumably less than the Sunday Ticket price, would that be more appealing to me as a consumer? Sure! While nobody can prove the counterfactual and know with certainty how many such purchases would be made, it is at least plausible that the games might be watched by more viewers if they had more ways to buy the rights to watch them.

The other thing that is interesting to me is the implied notion that the single broadcast could be the only one worth watching; that as long as one telecast of the game exists, there is no reason anyone else would bother to make another one. The league even tries to argue that no such substitute could even be produced (p. 26) I am reminded of the experience listening to the radio streams live online for the Lions because NFL Game Pass only allows me to watch the broadcast in my out-of-market zone after the fact. Listening to the Lions radio team and the opposing team’s radio crew make for vastly different experiences.

Just think about how much more or less enjoyable watching games could be with a different production team and broadcast crew (e.g. Booger McFarland every game)? To extend this to other parts of the NFL fan experience, consider the difference between watching draft coverage on the NFL Network as opposed to ESPN: some people are glad they can watch the draft without Mel Kiper while others love him.

It makes me wonder what it would be like to simply take live NFL on Fox video and play the Dan Miller radio audio over it. Even if the two are not synced up, how much better would that be than say, Joe Buck and Troy Aikman?

And now, on to the rest of today’s Notes:

  • Justin Rogers at the Detroit News offers a ranked list (warning: it is a photo gallery with a ton of pictures to load - but thankfully they are all on one page and not a slideshow, so big ups to him for that) of the top 50 free agents for the 2020 NFL offseason.

  • The Philadelphia Eagles, who have former Lions head coach Jim Schwartz as their defensive coordinator, added another former Lions head coach to their staff:

  • Very cool article by the Detroit Free Press’ Dave Birkett on former NFL running back Justin Forsett’s presentation to players and their spouses at the University of Michigan’s Ross School of Business as part of the league’s annual Business Academy program.

  • PFF also had an interesting draft article (also unfortunately behind the paywall), comparing the draft capital value ex ante to the ex post four-year Wins Above Replacement value actually produced by the players drafted by each team. While the result for the Lions is in the premium content, in the article preview you can see they had the fourth highest draft capital for the 10 years covered (ending in 2016, which is the last year for which drafted players could have four years’ worth of WAR calculated).

  • For entertainment purposes only:

  • Our own Kent Lee Platte went on SB Nation site Cincy Jungle’s podcast to talk about RAS.

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