There’s a lot of uncertainty about what’s ahead for NFL Sunday Ticket, which has its current DirecTV deal expiring after the 2022-23 NFL season. Apple, Google, Amazon, Disney and more have been mentioned in that discussion, and a winner is set to be revealed this fall. But there’s also long-running litigation around the Sunday Ticket service, which started with lawsuits filed against DirecTV and the NFL in 2015.
One of those lawsuits was a class-action lawsuit filed by Thomas Abrahamian, a New England Patriots fan living in California. That was actually the first lawsuit filed on this, filed in June of 2015. In July 2015, Ninth Inning Inc. (owners of San Francisco pub The Mucky Duck) filed a different lawsuit on this, focusing on the implications for commercial outlets rather than individuals. In May 2016, 27 different lawsuits on Sunday Ticket, including the aforementioned two, were consolidated into one case. A California court tossed that case in 2017, but the US Court of Appeals for the 9th Circuit overturned that ruling in 2019. The NFL then tried to appeal that to the Supreme Court in 2020, but did not get it heard there.
So this is now back at a lower level of court (federal district court in Los Angeles this time, before judge Philip Gutierrez). And as per Michael McCann and Daniel Libit of Sportico, there are some notable recent motions in that case, including a petition for certification of two classes, with one being residential subscribers and the other being commercial subscribers. Here’s more from that Sportico piece on what’s been filed and what’s ahead:
On Aug. 19, attorneys for the plaintiffs petitioned the presiding judge, Philip Gutierrez of Los Angeles’ federal district court, to certify two classes. One would include residential subscribers to DirecTV who bought the Sunday Ticket after June 17, 2011; the other would cover commercial subscribers during the same period.
…The federal rules of civil procedure make class certification a multifaceted process: Judge Gutierrez will only certify the proposed classes if he finds, among other factors, there are questions of law or fact common to the classes and the accompanying claims are representative. A hearing on class certification is scheduled for Dec. 16.
Although the case has been in litigation since the mid-2010s, it could remain on the docket well into the 2020s, barring a settlement. A jury trial is currently scheduled for Feb. 22, 2024, but any verdict would be subject to appeal.
Even with the DirecTV Sunday Ticket contract expiring soon, this is still very relevant litigation. It seems unlikely we’ll see a straight DirecTV/Sunday Ticket renewal, although there have been some talks that the eventual streaming winner might strike a deal with DirecTV for commercial outlets (as we’re seeing with Amazon and DirecTV for Thursday Night Football this year), but any eventual award in favor of the plaintiffs could carry costs for DirecTV for those affected over the 2011-2022 period when this was an exclusively DirecTV product. The NFL is a co-defendant here, too, and they’d obviously be impacted by an eventual ruling in the plaintiffs’ favor.
The other important facet of discussion here is about the model. The key complaint from the plaintiffs are that they haven’t been presented with the opportunity to buy individual teams’ out-of-market games, instead being forced to purchase the total out-of-market package. This is brought up under antitrust areas of law because the argument hinges on the NFL preventing its teams from selling their out-of-market rights individually in favor of Sunday Ticket, which also means that they don’t seek deals to distribute their broadcasts in other teams’ home markets outside of Sunday Ticket.
As Libit and McCann note, though, an NFL defense raised here so far is that the current model may come with a hefty price point ($293.94 per season for individuals, outside of promotions, more for commercial establishments), but an alternative wouldn’t necessarily be better for all consumers. A strict “every club for themselves in every area” policy might make broadcasts for popular teams like the Dallas Cowboys and Green Bay Packers more accessible in some areas well outside their home markets, and that would benefit those fans. But if every club has to make its own deals for each area, and if those deals are focused around conventional TV, that could lead to fans not being able to access particular games at all if there aren’t enough fans of their team in their area to make a deal worthwhile for that club.
One thing to note with this is that the TV market has changed dramatically since the initial 2015 filings, though. We’re in an age where streaming services have become far more ubiquitous, and it certainly looks like a streaming service is likely to land the main Sunday Ticket rights. And that won’t necessarily come with only the existing “pay one fee for all out-of-market games” option. There have been rumblings for some time about a new Sunday Ticket offering single-team or even single-game options, similar to the greater recent flexibility we’ve seen from the NBA and MLB. And it’s notable that litigation led to the NHL (in 2015) offering single-team out of market packages. So litigation, or even the threat of litigation, has led to increased flexibility in the past from some leagues, and that might be the case here as well.
It’s also notable that streaming services carry greater flexibility in general, as they’re not limited by linear channel availability. And the NFL has taken their own dive in there with the NFL+ streaming service launched last month. That service currently focuses on the previous Game Pass offerings, such as All-22 footage, combined with the mobile-only local streaming packages previously owned by Verizon, plus out-of-market preseason games. And it’s not likely to be the sole destination for Sunday Ticket at this point, especially with so many big-ticket tech companies reportedly interested. But those tech companies may envision offering Sunday Ticket as team packages as well as the whole all-teams package. And if they don’t, there might be an opportunity for a single-team offering inside NFL+, either now or a few years down the road.
At any rate, the ongoing litigation is certainly of note to DirecTV and the NFL. It may also be of note to whoever winds up with the Sunday Ticket rights. While this lawsuit isn’t currently against them, it’s a notable piece of litigation out there, especially with a trial not likely to start before 2024. And it may have an impact on what the next Sunday Ticket offering looks like.
[Sportico]