DirecTV Sunday Ticket lawsuit has NFL in a tough spot and facing massive change - The Boston Globe (2024)

The NFL is the subject of a class-action lawsuit that covers approximately 2.4 million DirecTV subscribers and 48,000 businesses, mostly bars and restaurants. The plaintiffs claim the league broke antitrust laws by selling its Sunday Ticket package from 2011-22 at an inflated price with restricted competition. The NFL argues that it has the right to sell Sunday Ticket as one bundle as part of its antitrust exemption, and that Sunday Ticket was only designed as a premium product. The NFL switched Sunday Ticket providers to YouTube TV in 2023.

The lawsuit has been kicking up and down the federal court system for more than a decade and finally went to trial this month. It has brought out some of the biggest players in NFL media, with Roger Goodell, Jerry Jones, and CBS Sports’ Sean McManus among those called to testify, and Robert Kraft sitting for a deposition. For Goodell, the NFL confirmed that this was the first time since he became commissioner in 2006 that he was forced to testify in open court.

“It’s definitely seismic,” said Irwin Kishner, the co-chair of the Sports Law Group at Herrick Feinstein LLP. “You don’t see [the NFL] in court much. It’s very unusual to see it get to this stage. At some point I think the NFL’s strategy is going to be to try to find a way to make this go away.”

The plaintiffs accuse the NFL of working with Fox and CBS, who paid $23 billion from 2011-22 to televise games, to influence Sunday Ticket’s premium price so that Sunday Ticket wouldn’t affect CBS’s and Fox’s TV ratings and advertising revenues. The plaintiffs also accuse the NFL of choosing DirecTV, a satellite provider with only 13 million subscribers, as the exclusive right-holder to purposely limit Sunday Ticket’s reach.

The plaintiffs are asking for $7 billion in damages, with treble damages pushing the NFL’s liability to potentially $21 billion. The lawsuit could also force the NFL to offer more a la carte options for watching out-of-market games.

“I don’t think [a $21 billion judgment] puts them out of business, but the more systemic issue is: Does the court say that media rights revert to the individual teams?” said Kishner. “That would really cause systemic changes to the way the league is run.”

The plaintiffs argue that they should have the ability to purchase a more targeted version of Sunday Ticket, and introduced into court an e-mail from ESPN in 2021 proposing a stripped-down package for $70, which the NFL was against. The plaintiffs also argued that the one time DirecTV dropped the price of Sunday Ticket, in 2012, it immediately saw a 40 percent uptick in subscribers.

“The NFL never let prices drop again,” attorney Amanda Bonn said in court. “This is how an illegal antitrust scheme works.”

The NFL said in court that while Fox’s and CBS’s displeasure with Sunday Ticket was always factored into the negotiations with DirecTV, ultimately DirecTV set the price for the package. And the purpose of Sunday Ticket was never to let fans buy games a la carte, but to be the NFL’s high-end TV package compared with the free broadcasts on CBS and Fox.

“We’re not looking to get lots of people,” Kraft said in his deposition, per courthousenews.com. “We want to keep it as a premium offering.”

The NFL also argues that refusing to let the league sell Sunday Ticket as a package could lead to the NFL not being able to sell its television rights as a bundle, which would upend the league’s competitive balance and its best selling point.

The reason smaller-market teams are able to contend competitively is because TV rights are sold in one bundle and split evenly across the 32 teams.

“I am convinced I would make a lot more money than the Bengals,” Jones said in his testimony. “I’m completely against each team doing TV deals. It is flawed.”

Balsam, who worked for the NFL when the Sunday Ticket package was first brokered in 1994, said the plaintiffs’ position sounds unreasonable.

“Here, we have a group of consumers in the Sunday Ticket case saying, ‘Yeah, we want that product, we just want it our way. We want to determine how it could be structured and how we pay for it and what we pay for it,’ ” Balsam said. “That’s not how markets work. And if it were, you’d have fewer products made available to consumers who want them.”

The trial could be sent to a jury deliberation as soon as this coming week, and it may not be the result the NFL wants. The Los Angeles district court is often not a friendly venue for the NFL.

“It is not a good sign for any antitrust defendant to find yourself in court in front of a jury,” Balsam said. “There are three perspectives here. There’s sort of common sense, there’s antitrust doctrine, and then there’s what’s a jury going to do with it? And that is always a crapshoot.”

Of course, both sides hold appeal rights, and the case is likely still years from being determined. But the NFL does not appear to operate from a position of strength, and a settlement, and changes to the broadcast model, may be on the horizon.

“They’re not going to stop what they’re doing. It’s just too much money,” Balsam said. “But they’re going to adjust. And an outcome that favors the plaintiffs to the tune of $20 billion is going to cast a shadow over sports industry transactions, especially in the television distribution and media setting.”

TALKING A GOOD GAME

Brady’s focus now

on broadcasting

A couple of items from Tom Brady’s 25-minute appearance this past week with Fox Sports Radio’s Colin Cowherd:

▪ While Brady has openly flirted with un-retiring from the NFL, he is now full steam ahead with his broadcasting career, set to call his first game in Week 1 with the Cowboys and Browns. Although plenty of people were skeptical that Brady would follow through with broadcasting, Brady, who has only been out of football for a year, said he needs this job.

“The structure is very different in my life now because you don’t have the routine,” Brady said. “But I actually believe that the broadcasting at Fox this year, for the first time will give me a lot more structure like I’m used to, and I really actually will look forward to that.”

▪ Brady offered praise for the continuity the Patriots had during different portions of their 19-year dynasty, and for the coaching and player development from Bill Belichick and assistants such as Josh McDaniels and Dante Scarnecchia.

“One of the great things I would say in my experience with the Patriots was every player was coached,” Brady said. “Even if you were on the practice squad, even if the scout team offense was out there, Dante Scarnecchia was coaching the scout team offensive line as if it was the starting offensive line. So when people go down, we’re going to fill those guys in and they’re going to step in and play a great role for us.”

ETC.

Father-son duos

not too common

The Athletic had a fun piece this past week about how the Raiders have three players trying to make the team that their fathers played for.

Offensive tackle Andrus Peat, whose father, Todd Peat, was an offensive lineman for the Raiders from 1990-93, called signing with the Raiders “a dream come true.”

“Every baby picture there is of me, I am wearing Raiders gear,” said Andrus Peat, who spent his first nine seasons with the Saints.

Second-year offensive tackle Jalen McKenzie, who was part of the Raiders’ practice squad last year, is the son of Reggie McKenzie, a Raiders linebacker from 1985-88 and the team’s general manager from 2012-18. And undrafted rookie defensive end Ron Stone Jr. is the son of the former offensive line star at West Roxbury High and Boston College by the same name, who played 13 seasons in the NFL, including his final two with the Raiders in 2004-05.

“It was pretty exciting when we all sat there and realized that the place where his career ended is where mine is starting. It’s a full-circle moment,” Stone Jr. said.

This got me wondering about father-son duos across NFL coaching staffs (why didn’t I think of this for last week’s column on Father’s Day?), and after combing through all 32 teams, I found that it’s not as common as I thought, especially now that the Belichicks have dispersed and Andy Reid no longer works with his son.

The Raiders take the saying, “Football is Family,” to heart. Coach Antonio Pierce employs his son, offensive assistant De’Andre Pierce. And assistant head coach Marvin Lewis gets to work with his son, assistant linebackers coach Marcus Lewis. The Raiders also still employ strength coach Deuce Gruden, son of Jon Gruden.

Giants coach Brian Daboll works with his son, offensive assistant Christian Daboll, who joined the team last year. And the Titans have a unique setup, with Brian Callahan the first head coach to hire his father, offensive line coach Bill Callahan.

There appear to be only two other familial connections across the NFL. Patriots coach Jerod Mayo employs his brother, Deron Mayo, as the head strength coach. And Jaguars coach Doug Pederson coaches his son, tight end Josh Pederson, who appeared in three games last year as a rookie.

Spelling it out for voters

The Associated Press sent an e-mail to its award voters Tuesday:

“The spirit of the AP Comeback Player of the Year award is to honor a player who has demonstrated resilience in the face of adversity by overcoming illness, physical injury, or other circ*mstances that led him to miss playing time the previous season,” reads the criteria.

This e-mail didn’t arrive in a vacuum, of course. It seems many people aren’t happy that Joe Flacco, not Damar Hamlin, won the Comeback award for the 2023 season. With voting done on a 5-3-1 basis, Flacco won with 151 points to Hamlin’s 140, even though Hamlin had 21 first-place votes to Flacco’s 13.

It’s good that the AP is trying to better define the award, because there’s no question that the lack of criteria left it open to interpretation. And there’s no question that Hamlin’s “comeback” from near-death far surpassed Flacco’s comeback from, well, nobody wanting him until November.

But as a voter, I don’t regret giving my first-place vote to Flacco, either. I prioritized the “player” part of Comeback Player. Hamlin’s return was remarkable, but he played just five of 17 games in the regular season, with just 17 defensive snaps and 94 special teams snaps all year (he did appear in both postseason games, as well). Flacco literally was signed off his couch, learned the Browns’ offense on the fly, and went 4-1 as an emergency starter to lead them to the playoffs.

If the AP prefers the award go to injured players, so be it. But the organization should come up with another award to honor the Flaccos and Geno Smiths of the NFL who come out of nowhere to resurrect their careers.

Extra points

The tradition of going away for training camp continues to dwindle. Just six teams are doing it this year, plus the Browns doing the first 10 days at The Greenbrier in West Virginia. Only the Bills, Chiefs, and Steelers still do training camp at a college campus. The Cowboys will spend camp in Oxnard, Calif., again, the Raiders are practicing in Southern California over the Las Vegas heat, and the Saints are going to Irvine, Calif., because their training facility is being renovated. Otherwise, the other 25 teams are practicing at home . . . Kansas and Missouri are supposed to have a “border truce” over not luring businesses across state lines, but Kansas is making a play for the Chiefs (and Royals). On Friday, Kansas’s governor, Laura Kelly, signed legislation that expands a state bond program that could enable the state to fund up to 70 percent of a new stadium for the Chiefs. This came in light of Jackson County (Mo.) voters rejecting a sales tax measure that would have paid for renovations to Arrowhead Stadium. Of course, not everyone believes Kansas is serious. “I think the Chiefs and the Royals are using us,” said state representative Susan Ruiz, a Kansas City-area Democrat . . . Boy, is the NFL milking “Hard Knocks” for all it’s worth. Starting July 2, we can watch “Hard Knocks Offseason with the New York Giants.” Starting Aug. 6, we can watch “Hard Knocks Training Camp with the Chicago Bears.” And in December and January, we can watch “Hard Knocks In Season with the AFC North.” The show has been horribly diluted over the years, and apparently now mostly serves as hours of filler between games . . . The Chiefs appear to be serious about letting safety Justin Reid, a former soccer star, do kickoffs this year, under the theory that kickers will be significantly more involved in making tackles under the league’s new rules. “Although I know [kicker Harrison Butker] can make some tackles, I think he’s excited to preserve himself, and we can use him where we really need him, which is those fourth-quarter situations to go nail a 60-yard field goal and win the game,” coach Reid said. “It would be devastating to try and trot a guy out there who’s still nicked up from trying to make a tackle in the second quarter.” . . . The NFL’s use of artificial turf is now doubly unpopular after Thursday’s Argentina-Canada soccer match at Atlanta’s Mercedes-Benz Stadium. Not only do NFL players hate playing on the turf, but the stadiums apparently struggle to install the natural grass surfaces correctly for soccer. Argentina goalkeeper Emiliano Martínez called it a “disaster,” and Canada defender Kamal Miller said, “It felt like walking on a stage, as if it was hollow.” The NFL stadiums that use artificial turf, such as Gillette Stadium, will be installing natural grass for the 2026 World Cup . . . Speaking of Atlanta, the Falcons announced they are inducting owner Arthur Blank into the team’s Ring of Honor this fall. He must know a guy.

Ben Volin can be reached at ben.volin@globe.com.