All too often, facts can get in the way of a good argument. That dynamic plays out frequently in court.
Trials often become more about messaging than truth. And if the adversary isn’t ready to counter the effort of one side to paint a picture that doesn’t mesh with reality, the false impression can take root.
In the Sunday Ticket case, for example, a skirmish emerged on a couple of occasions regarding the question of whether the NFL allowed DirecTV to make the streaming version of Sunday Ticket available to the military, their spouses, and veterans. Both sides recognized the power of pandering to jurors who might have strong feelings about the men and women who protect us at home and abroad, so both sides pushed their predictable positions on whether the league did, or didn’t, facilitate Sunday Ticket for those who serve.
The end result is that, yes, games are available to active military members via the Armed Forces Network. However, the NFL (based on its own internal documents) did indeed refuse in 2017 to permit DirecTV to expand eligibility for Sunday Ticket streaming to members of the military, their spouses, and veterans.
Another side issue that could have emerged didn’t. With the NFL constantly harping on the obsession with making all games of all teams available in their local markets on free TV, the plaintiffs failed to pounce on a very important point. For the first four years of the 11 seasons covered by the class action (2011-22), the NFL had a blackout rule that threatened to take home games off the air in local markets if the games weren’t sold out.
The blackout rule — which at one point applied even if the games were sold out (President Richard Nixon helped end that practice) — came under political assault in the early years of the last decade, with the FCC voting to dump the blackout rule and Senator John McCain proposing legislation that would have ended it for all stadiums that received taxpayer funding.
In 2014, the NFL hired Hall of Fame receiver Lynn Swann to make a clunky, awkward case for keeping the blackout rule in order to protect free football on TV. Even though the the blackout rule kept games off of free TV.
Here’s an article from August 2, 2014 on the NFL’s owned-and-operated website regarding an appearance by Swann on the NFL’s owned-and-operated TV network. Good luck making sense of anything Swann said in trying to justify the blackout rule as a boost for football on free TV. (And do not click the link to the NFL’s “Protect Football on Free TV” website at the bottom. If you did, we tried to warn you.)
Here’s another article from July 17, 2014, full of self-serving arguments aimed at justifying the decision to keep games off of free TV in the local market if the local stadium isn’t sold out. (The same warning about clicking the link to the NFL-created blackout rule propaganda website applies.)
With the NFL trying to justify the antitrust violations inherent to the Sunday Ticket product by wrapping themselves in the flag of “free TV,” the plaintiffs blew an opportunity to point out that the league didn’t suspend the blackout rule until 2015. Which kept games off of free TV when local residents failed to stuff sufficient money into the box office. Which tends to apply a massive asterisk to the league’s attempt to distract the jury from Sunday Ticket’s legal deficiencies by proclaiming as often as possible, “We put every game on free TV in the markets where the teams play.”
They do now. For the first four years of the 11-year period covered by the class action, they didn’t. And if the FCC and John McCain hadn’t been poised to make them get rid of the blackout rule, there’s a good chance the blackout rule would still be in place today.
It’s not as if the missed opportunity hurt the plaintiffs. They still won a $4.7 billion verdict, which will be multiplied by three if/when it becomes an official judgment. But maybe the number would have been closer to the $7 billion the plaintiffs requested, if they had managed to hoist pro football on its own “free TV’ petard.