Earlier this month, the NFL sent out an email blast communicating to NFL.com users an update to the Terms of Service.
Said the email: “We have made important updates to our Terms of Service that govern your use of the websites, mobile applications, and other online and mobile services operated by NFL Enterprises LLC. The updates include changes to ‘Section 16. Limitation of Liability’ and the terms governing how disputes are handled, which are set forth in ‘Section 18. Choice of Law, Class Action Waiver, Small Claims, and Arbitration’ and “Section 19. Mandatory Pre-dispute Resolution Process.”
We wrote something about it. We also asked the league why the change was made. The specific questions were this: (1) “Can I get a comment/explanation/anything on the reasons for the TOS update and the timing of its release via email to users?"; and (2) “Basically, what is the purpose of it, and why now?”
Here’s the response: “The league has made periodic updates to the terms. The changes bring them in line with those of the other major sports leagues which have made similar changes to their terms. You mentioned the class action waiver provision and a relation to the Sunday Ticket case. The class action waiver had been in the terms since 2016 or 2017.”
Because the new Terms of Service don’t reveal the actual revisions to the old Terms of Service, it’s impossible to know how the section that includes the class action waiver. But the section including the class action waiver has definitely changed, per the plain terms of the email.
It’s unclear whether the new Terms of Service would apply to NFL.com users who purchase Sunday Ticket through YouTube. Nothing stops the league from trying.
The new Terms of Service more clearly apply to products sold directly by the league to NFL.com users, such as NFL+. Which could potentially create an antitrust issue for the league.
If, for example, a fan wants to watch recorded versions of past games from only one team but the fan must buy access to all past games of all teams, that could be an issue.
Regardless, the league has changed the Terms of Service. And the NFL basically says it’s just keeping up with other leagues.
The timing remains curious, to say the least. It happened after, not before, the NFL absorbed a $4.7 billion antitrust verdict in the Sunday Ticket case. And even though the presiding judge threw out the verdict because he decided the expert testimony on financial damages wasn’t good enough (after he decided it was), the league has lingering exposure under the out-of-market package. The Terms of Service might be aimed at trying to plug potential holes that could lead to more lawsuits.
Whether a judge gives any credence to the laundry list of fine-print provisions that no one will ever read remains to be seen. Still, it’s there for a reason.
Disney, for example, recently argued that a wrongful-death lawsuit brought by the estate of a woman who died after eating at a Disney World restaurant should be sent to arbitration because she had agreed to the Disney+ Terms of Service. Although Disney has backpedaled after the tactic generated bad publicity, it’s an example of why and how such terms are foisted upon consumers.
Big companies want to avoid juries at all costs. And so they do what they can to stack the deck against anyone who might ever sue them in court. Regardless of whether the NFL will try to use the new Terms of Service in response to future Sunday Ticket antitrust cases, the changes were made for a reason. And the NFL’s decision to send an email to all NFL.com users alerting them of the changes is just another box to check on the way to laying the foundation to unleashing courtroom checkmate on any customer who dares to file suit.
So, yeah, Football is Family. Also, Terms and Conditions apply.
