It’s a point we made last March. With the NFL taking two Christmas games from over-the-air broadcast networks and sending them to a new streaming partner, it’s worth mentioning again.
At some point, as the NFL pivots from broadcast to streaming — and as fans need more and more services to watch all games — it’s going to face a potential antitrust issue.
The problem traces to the Sports Broadcasting Act of 1961. That’s the federal law that allows the NFL to sell its TV rights as a group, even though the NFL consists of unique businesses that should be selling their TV rights separately.
Three years ago, an item in the University of Iowa’s Journal of Corporation Law looked at the league’s looming legal challenges in an era of streaming. An argument could be made that the antitrust exemption in the Sports Broadcasting Act of 1961 doesn’t apply to games available on streaming platforms.
Of course, someone would first have to raise the issue. If any of the traditional broadcast networks ever filed an antitrust lawsuit against the NFL over streaming deals not being done on a team-by-team basis, that network would never have to worry about ever having a contract with the NFL again. A class action on behalf of consumers would potentially be possible, under the argument that the league is misusing its exemption to sell league-wide packages to streaming companies and keeping them off of free, over-the-air TV. (The argument would be that, if the NFL’s individual teams had to do their own streaming deals, the league would be far more likely to keep all packages on traditional TV networks.)
The league surely is sensitive to the possibility of a legal challenge. Whenever the league adds a new package that isn’t on a broadcast network, the league ensures that the game will be available on over-the-air TV in the markets of the teams playing in those games. Indeed, during the recent conference call regarding this year’s schedule, the league specifically made the point that 100 percent of all games will be available in the local markets of the teams playing in those games.
We’re not saying what should happen. We’re just pointing out what could happen. The Sports Broadcasting Act of 1961 has potential limits, especially since it was passed more than a half-century before streaming even existed.
The NFL will need to address the issue at some point, either by getting from Congress an expanded exemption that covers streaming — or by waiting for a lawsuit and trying to make the case that the law should cover streaming, especially since 100 percent of all games are always available in the local markets of the teams playing in those games.
