Los Angeles might finally have a professional football team, but not everyone is a Rams fan. Is it fair that those fans have to pay a premium to watch their favorite teams?
That’s the question at the heart of dozens of consumer antitrust class actions that brought out an all-star defensive line Monday in Los Angeles federal court.
The suits take issue with the National Football League’s Sunday Ticket package, an exclusive arrangement with DirecTV. The offering allows fans to watch games broadcast outside their local television market for a price that, according to a consolidated complaint, ranges from $2,314 to $120,000 a year.
The NFL, which describes the Sunday Ticket in court papers as “an innovative product” that provides fans access to “even more live NFL football entertainment,” has turned to longtime league counsel Covington & Burling and ace litigator Beth Wilkinson, founding partner of Wilkinson Walsh + Eskovitz. Kirkland & Ellis represents DirecTV.
Lawyers for the NFL argued Monday that the cases should be dismissed, while DirectTV is trying to push the dispute into arbitration.
On the other side was a familiar foe to Wilkinson: Howard Langer of Philadelphia’s Langer, Grogan & Diver. The antitrust lawyer is behind several consumer suits challenging the exclusive broadcast deals struck by sports leagues.
Just before leaving Paul, Weiss, Rifkind, Wharton & Garrison to start her own firm in 2016, Wilkinson settled a similar case in New York filed by Langer against Major League Baseball.
This time, the dispute was on California turf. At a hearing on Monday, U.S. District Judge Beverly Reid O’Connell in Los Angeles wanted to know whether the exclusive deal between the NFL and DirecTV reduced the output—or total number of available broadcast games—in violation of antitrust laws.
“Output is a critical component of this,” she said, referencing the U.S. Supreme Court’s 1984 decision in National Collegiate Athletic Association v. Board of Regents, which held that the NCAA had violated antitrust laws by restricting the output of its broadcast games.
At the hearing, Wilkinson sat on the sidelines, while Covington’s Gregg Levy argued for the NFL. Levy, a Washington, D.C.-based partner, asserted that the NFL, as the holder of the intellectual property behind the broadcasts, “has the right to license it to DirecTV alone or not at all.”
Plaintiffs lawyer Marc Seltzer, Los Angeles partner at Susman Godfrey, countered that the “web of interlocking agreements” has restricted overall output of games. Unlike in other sports, customers have no other options to watch out-of-market NFL games without paying for the Sunday Ticket package,
“You can’t see every game everywhere,” he said. “It would be a different world if these restrictions didn’t exist.”
Also on Monday, DirecTV Holdings LLC, a unit of DirecTV Inc., moved to arbitrate the claims against it in the Sunday Ticket package litigation. At one point, DirecTV attorney Michael Baumann, a partner at Kirkland & Ellis in Los Angeles, asked O’Connell if she was a football fan—to which the judge replied that she was quite familiar with the sport.
“Don’t let my gender fool you,” she said.