The trial has gotten started. The final bill could be an amount the NFL would have to dig deep to pay.
Via the Associated Press, opening statements happened Thursday in the massive antitrust class action against the NFL over the Sunday Ticket package.
The plaintiffs contend that the NFL, DirecTV, CBS, and Fox worked together to make Sunday Ticket more expensive than it had to be. The NFL, represented by Beth Wilkinson (whose investigation of the Commanders greased the skids for Dan Snyder’s exit) claims it’s all about consumers having full access to content.
“The case is about choice,” Wilkinson told the jury. “This is a valuable, premium product. Think about all the choices available to fans. We want as many people as possible to watch the free broadcasts.”
That’s the issue, in a nutshell. The NFL wants Sunday Ticket to carry a price point that strikes the balance between generating significant revenue for its “premium product” while not diluting the audiences who would otherwise watch the Sunday afternoon games on their local network affiliates.
During opening statements, attorney Amanda Bonn showed jurors a 2020 term sheet from Fox, in which the company asked the NFL to ensure that Sunday Ticket would be priced above $293.96 (the Sunday Ticket fee in 2020) during the 11-year term that began in 2023.
Steve Bornstein, the former head of NFL Network, testified on Thursday that Sunday Ticket was always intended to not impact the ratings of networks that paid handsomely for over-the-air broadcast rights in the various markets.
The Wall Street Journal recently took a closer look at what this case could mean. With up to $7 billion in damages, and given that the antitrust law requires damages to be tripled, the league could be looking at a $21 billion judgment, or $656.25 million per team.
The case started in 2015, when the San Francisco pub known as the Mucky Duck filed a legal challenge to the league’s out-of-market broadcast arrangements. It has morphed into an ambitious assault on the way business is done, with millions of fans in the class and with the NFL forced to defend its practice of keeping Sunday Ticket priced at a certain level.
The case tests the limits of the NFL’s broadcast antitrust exemption. Ultimately, out-of-market rights could be sold on a team-by-team basis. Which could create a potentially massive revenue disparity, unless the teams agree to share that money.
The evidence in the ongoing trial includes documents showing that the NFL rejected bids that would have made Sunday Ticket available at a lower rate, with the league choosing the company that would agree to the restrictions that boost CBS and Fox ratings.
The NFL, predictably, contends it has done nothing wrong.
But something has always felt wrong about Sunday Ticket. They market it as a way for fans to watch the games of their favorite teams, if their favorite teams don’t play in the local market. The NFL nevertheless requires fans to buy the entire package, forcing them to purchase the ability to see games they don’t care to see, including weeks when their favorite team has a prime-time game.
Why? Because if it was cheaper for, say, Vikings fans in the Pittsburgh market to watch Vikings games at 1:00 p.m. ET and not the Steelers game on the local CBS or Fox affiliate, more would buy that package — and fewer would watch the Steelers game on CBS or Fox.
The NFL loves to point out that it makes all local games available on free TV. Which is fine. The question is whether that “choice” to which Wilkinson referred is available at a reasonable price, or whether it’s artificially inflated to force a Vikings fan in Pittsburgh to watch Steelers game instead.
Fans, frankly, should be on #TeamMuckyDuck. If the NFL loses, Sunday Ticket will become cheaper. And you’ll likely be able to buy it one team at a time, and possibly one week or one game at a time.
If the NFL is truly committed to choice, that’s what the NFL should want. Give all fans the ability to watch any game they want — and only the games they want — without artificially driving up price to ensure that CBS and Fox will get a sufficient return on their investment by forcing fans who can’t afford to watch the game they want to see to watch the one that has been served up to them by their local CBS or Fox affiliates.
Bottom line? The NFL will only change its ways if litigation dramatically affects its bottom line. A $21 billion judgment would be more than enough to do just that.
