Supreme Court denies the NFL’s writ of certiorari. But, has the Supreme Court already ruled on the matter?

Source: DirecTV/https://www.att.com/directv/nfl-sunday-ticket/

The Supreme Court denied the NFL’s writ of certiorari regarding DirecTV NFL Sunday Ticket antitrust concerns.

Plaintiffs Ninth Inning, Inc., et al., filed an antitrust lawsuit against the NFL, the member teams, and DirecTV. Traditionally, NFL teams cannot compete for viewers outside of their home region during the same time slot. If the Buffalo Bills and the New England Patriots are playing at 1 PM on a Sunday, the Bills cannot broadcast in Boston, and vice versa. However, what happens if a Bills fan living in Boston wants to watch the Bills game? Usually, this fan is barred. NFL Sunday Ticket is the remedy to this situation.

Sports leagues do not receive the same antitrust scrutiny as other companies. Instead, they receive the “rule of reason” analysis. The plaintiff must prove that (1) there is an agreement between the parties, (2) the agreement intends to harm or unreasonably restraint trade, and (3) the agreement causes injury. If the plaintiff proves these elements, then the defendants have the burden of proving that the conduct in question is essential to the service they offer. Lastly, the court will balance the positive and negative effects of the conduct in question in determining the solution.

NFL Sunday Ticket allows NFL fans to watch the team of their choice, regardless of where they live. However, the plaintiffs filed a lawsuit against the NFL, the member teams, and DirecTV, alleging teams would create individual broadcasts of games through multiple outlets if they were not restrained by NFL Sunday Ticket. The defendants’ motion to dismiss was granted by the U.S. District Court for the Central District of California, while the Ninth Circuit reversed the ruling. The NFL attempted to appeal the motion to dismiss through the writ of certiorari, which the Supreme Court denied.

This ruling is not a formal conclusion; instead, it allows the matter to proceed past the motion to dismiss stage in the trial. Usually, the Supreme Court does not grant certiorari to interlocutory matters. In other words, the Supreme Court wants to hear matters on the final decisions, not issues in the process. Justice Kavanaugh expressed this point, stating that “. . . the interlocutory posture is a factor counseling against this Court’s review at this time.”

However, the Court states that “the denial of certiorari should not necessarily be viewed as agreement with the legal analysis of the Court of Appeals.” Justice Kavanaugh writes that if issues remain after summary judgment and trial, the NFL is welcome to petition to the Supreme Court again. Actually, it seems like he is encouraging it.

Justice Kavanaugh continues to write that the NFL and its teams have the freedom to operate as a joint venture and not negotiate against each other for television rights. Additionally, the Court also states that the plaintiffs’ grounds for the suit are disputable. Only “direct” purchasers may file a suit in antitrust matters, and the plaintiffs are not direct purchasers of a product from the NFL and the member teams. These short arguments in a two-page statement detail the Court’s favor toward the NFL and DirecTV.

NFL Sunday Ticket is available for customers non-DirecTV through streaming — albeit the streaming package is sold online by DirecTV. DirecTV’s exclusive Sunday Ticket distributing contract expires after the 2022 season. Regardless of which outlet distributes NFL Sunday Ticket, the Supreme Court’s tone on the facts points toward the NFL keeping total control of broadcasts.

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'21 J.D. Candidate at the University at Buffalo School of Law.​

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