The US Supreme Court signaled interest in the NFL’s bid to shut down an antitrust challenge to its “Sunday Ticket” DirecTV package, asking the plaintiffs to respond to the league’s petition after they initially declined the opportunity, reported Bloomberg.
The justices had been set to discuss whether to review the case at their April 24 conference. The request Monday, April 13, gave the sports bars leading the lawsuit a May 15 deadline to respond.
It came about a week after the US Chamber of Commerce and two groups of experts urged the high court to reverse the US Court of Appeals decision.
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 claims.
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.
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