NFL Gets Allies in Bid to Have SCOTUS Stop Sunday Ticket Suit

The NFL’s bid to have the U.S. Supreme Court shut down an antitrust challenge to its “Sunday Ticket” DirecTV package has found allies in the U.S. Chamber of Commerce and two groups of experts.

The justices could decide as soon as April 24 whether to take up a decision by the U.S. Court of Appeals for the Ninth Circuit, which revived the proposed class action in August. The appeals court paused the case in October pending a Supreme Court petition by the league, its teams, and AT&T subsidiary DirecTV. They filed the petition in February.

The NFL Sunday Ticket subscription package allows customers to watch every out-of-market game, rather than just the two or three broadcast free each Sunday.

The lawsuit challenges the licensing deals that make Sunday Ticket possible: an agreement among the teams to pool their broadcast rights, and the NFL’s sale of those rights to DirecTV. Teams would otherwise market their rights on competitive terms, giving out-of-town viewers better and cheaper options than subscribing to Sunday Ticket on an all-or-nothing basis, the suit says.

A federal judge dismissed those claims in 2017. The deal between the league and DirecTV is exempt from antitrust scrutiny under the Sports Broadcasting Act, she said. The rights-pooling agreement isn’t, but it’s an “upstream” deal shielded by the federal bar on antitrust damages for “indirect purchasers,” the judge found.

A divided Ninth Circuit revived the case, saying the licensing deals fall within the indirect purchaser rule’s “co-conspirator” exception. The suit alleges that both agreements are part of “a single conspiracy to limit the output of NFL telecasts,” the majority noted.

But the dissent got it right, according to the Supreme Court petition filed by the NFL, its teams, and DirecTV. The Ninth Circuit also wrongly treated the teams as pure competitors, rather than participants in a joint venture, they argued.

The decision flouted the high court’s admonition that “football teams that need to cooperate are not trapped by antitrust law,” the petition said.

The Chamber agreed in an amicus brief filed Wednesday, the same day two groups of antitrust experts also asked the court to rule in the league’s favor. Given that football telecasts can’t even exist without coordination, they present “the extreme case” that antitrust law should be “most accommodating” toward, according to the Chamber’s brief.

“If cooperation in a professional sports league to produce and telecast its core product (games) is not entitled to full rule-of-reason review, as the Ninth Circuit holds, then no joint venture will be,” the brief says.

The Chamber is represented by Akin Gump Strauss Hauer & Feld LLP and its own litigation center. The experts by Mayer Brown LLP and White & Case LLP.

The NFL and its teams are represented by Covington & Burling LLP. DirecTV is represented by Kirkland & Ellis LLP. The plaintiffs, which declined to file court papers opposing Supreme Court review, were represented in the lower courts by Susman Godfrey LLP, Langer Grogan & Diver, and Hausfeld LLP.

The case is Nat’l Football League v. Ninth Inning Inc., U.S., No. 19-1098, amicus briefs filed 4/8/20.