NFL Sunday Ticket Subscribers Fight Dismissal of Class Action Lawsuits

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Plaintiffs in a NFL Sunday Ticket litigation registered their opposition to the NFL’s motion to dismiss on Thursday, arguing that they have clearly alleged anticompetitive behavior on the part of the NFL and DirecTV that caused real harm for consumers.

In a joint memorandum by the plaintiffs’ interim class counsel, customers of DirecTV argue that they have adequately pled an antitrust case against both DirecTV and the National Football League.

The two entities unlawfully acted to reduce the availability of NFL programming while at the same time causing its price to skyrocket by selling viewing rights to certain games through DirecTV’s NFL Sunday Ticket package, according to the plaintiffs.

The plaintiffs are more than two dozen commercial and private subscribers of DirecTV.

They say that by limiting the number of traditional network broadcasts on a typical Sunday afternoon to only three games, DirecTV and the NFL require individuals and businesses to purchase the Sunday Ticket package if they want to watch any other games.

They also say the defendants agreed that broadcast games not available on local television – so-called “out of market” games – will only be available through DirecTV’s Sunday Ticket package.

“Defendants have expressly agreed to make only a fraction of games available on standard television channels, and have agreed that consumers will only be able to access the other games by purchasing ‘Sunday Ticket’ directly from DirecTV,” the plaintiffs allege.

Plaintiffs argue these restrictions are anticompetitive behavior that violates federal antitrust law.

They say the Sunday Ticket is essentially an agreement among the NFL teams to avoid competing for television viewership by centralizing broadcast rights for sale to a subscription television service.

In opposing the NFL’s arguments for dismissal, plaintiffs say the Sunday Ticket agreement is clearly anticompetitive.

Similar agreements over NFL broadcast rights were held to be anticompetitive in court cases from the 1950s and ‘60s, they argue.

They also claim that the practices complained of unquestionably harm consumers by restricting the availability of game broadcasts while simultaneously driving the price of both rights and programming to “eye-popping” levels.

The NFL’s claim of antitrust immunity under the Sports Broadcasting Act also fails, the plaintiffs argue, because that immunity applies only to free, over-the-air broadcasting – not paid subscription services like DirecTV.

On the same day the NFL moved for dismissal, defendant DirecTV asked the court to divert the plaintiff’s claims to arbitration.

The company seeks to enforce a provision in its subscription agreement requiring both individual and commercial subscribers to arbitrate all disputes on an individual basis.

All the Sunday Ticket class action lawsuits are being overseen in a single court by U.S. District Judge Beverly Reid O’Connell. The federal Judicial Panel on Multidistrict Litigation consolidated these claims into a single multidistrict litigation, or MDL, in December 2015.

The plaintiffs are represented by Marc M. Seltzer, Arun Subramanian, William Christopher Carmody, Seth Ard and Ian M. Gore of Susman Godfrey LLP, Michael D. Hausfeld, Scott Martin, Irving Scher, Michael P. Lehmann, Bonny E. Sweeny and Christopher L. Lebsock of Hausfeld LLP and Howard Langer, Edward Diver and Peter Leckman of Langer Grogan And Diver PC.

The DirecTV Sunday Ticket MDL is In re: National Football League’s “Sunday Ticket” Antitrust Litigation, Case No. 2:15-ml-02668, in the U.S. District Court for the Central District of California.

UPDATE: On Oct. 24, 2016, the National Football League argued the plaintiffs cannot show any antitrust actions.