• Sherman Act Claims Of Two Classes Of DirecTV NFL Sunday Ticket Subscribers Will Head To Trial
Antitrust Litigation
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  • Sherman Act Claims Of Two Classes Of DirecTV NFL Sunday Ticket Subscribers Will Head To Trial


    On January 11, 2024, Judge Philip S. Gutierrez of the United States District Court for the Central District of California denied defendants’ motion for summary judgment in a case alleging that the National Football League (“NFL”) and its member clubs conspired and entered into unlawful agreements with each other and their broadcast partners to suppress the output of certain kinds of telecasts of professional football games in violation of Sections 1 and 2 of the Sherman Act.  In re Nat’l Football League’s Sunday Ticket Antitrust Litig., No. ML 15-02668 PSG (SK), 2024 WL 168298 (C.D. Cal. Jan. 11, 2024).

    Plaintiffs, two classes of DirecTV subscribers, allege three agreements to suppress output of some categories of professional football game telecasts, thereby raising the price of other game telecasts sold exclusively by DirecTV.  Specifically, plaintiffs allege:  (1) an agreement by the NFL’s member clubs not to compete with each other for televising their games by conveying their telecasting rights exclusively to the NFL; (2) an agreement between the NFL, CBS, and Fox to create a single telecast for every Sunday afternoon NFL game, giving the two networks in turn the exclusive right to broadcast a select number of games through free, over-the-air television in local markets; and (3) an agreement to exclusively license the telecasts of the Sunday games to DirecTV, who then bundles them into a subscription package called the “NFL Sunday Ticket.”  According to plaintiffs, anyone who wants to watch a game that is not broadcast locally on either Fox or CBS must purchase the NFL Sunday Ticket subscription, giving DirecTV—as the exclusive seller of these “out-of-market” game broadcasts—the ability to charge supracompetitive prices.  Plaintiffs contend that, absent these three agreements, the Sunday afternoon NFL games would be available through other means and accessible to more fans at lower prices.

    Defendants moved for summary judgment, arguing that:  (1) plaintiffs lack standing under Illinois Brick because they were not direct purchasers from the NFL or its member clubs and could not prove a conspiracy involving DirecTV, (2) the NFL’s agreements with CBS and Fox are protected from antitrust scrutiny under the Sports Broadcasting Act (the “SBA”), (3) plaintiffs cannot demonstrate that defendants took concerted action or that such action either unreasonably restrained trade or resulted in monopolization, and (4) plaintiffs cannot show that the agreement between the NFL and DirecTV is anticompetitive.

    The Court disagreed, concluding that plaintiffs provided sufficient evidence to raise disputes of fact over DirecTV’s commitment to the alleged conspiracy and whether the three alleged agreements resulted in DirecTV’s alleged monopoly of out-of-market broadcasts of Sunday games, among other things.  The Court also found that the alleged agreements between CBS, Fox, and the NFL are not exempt from antitrust scrutiny under the SBA, holding that the antitrust exemption under the SBA must be narrowly applied to conduct covered by the SBA.  As to the standing issue, the Court determined that the analysis depended on a predicate issue of material fact that should be decided at trial.

    Therefore, the Court declined to grant summary judgment for defendants and plaintiffs’ Section 1 and Section 2 claims will proceed to trial.

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