Kavanaugh Says NFL-DirecTV Spat Isn’t Ready for Prime Time

Lambeau Field in Green Bay, Wis., home of the NFL’s Green Bay Packers. (Courthouse News photo/Kevin Lessmiller)

WASHINGTON (CN) — The Supreme Court refused Monday to wade into a contract dispute over television rights to out-of-market NFL games, but Justice Brett Kavanaugh cast doubt on the antitrust battle’s chances.

“Ordinarily, a decision of such legal and economic significance might warrant this Court’s review,” Kavanaugh wrote. “But the case comes to us at the motion-to-dismiss stage, and the interlocutory posture is a factor counseling against this Court’s review at this time.”

The case began in California where sports bars and other commercial entities that subscribe to DirecTV for the NFL Sunday Ticket package claimed that the 26-year broadcasting partnership unfairly blocks competition.

Initially a federal judge dismissed the case, but the Ninth Circuit reversed last year, saying the putative class had so far stated a cause of action.

Customarily the high court does not comment on cases where it is denying a writ of certiorari, but Kavanaugh wrote specially Monday to note that the denial “should not necessarily be viewed as agreement with the legal analysis of the Court of Appeals.”

Last year’s ruling cited a 1984 Supreme Court case that demolished NCAA limits on college football game broadcasts, holding that the NFL-DirecTV contract may be illegal under antitrust laws. For Kavanaugh, however, the precedent points another way.

“The NFL and its member teams operate as a joint venture,” he wrote. “And antitrust law likely does not require that the NFL and its member teams compete against each other with respect to television rights.”

“Moreover, the plaintiffs may not have antitrust standing to sue the NFL and the individual teams.”

Kavanaugh also questions whether the business owners in the case, led here by an entity called Ninth Inning, can show that the broadcast arrangement caused them injury.

In their petition, the NFL and DirecTV note that the business owners purchased their “Sunday Ticket” package from a middleman. 

This technicality could kill the case, Kavanaugh noted. 

“This Court’s case law ‘authorizes suits by direct purchasers but bars suits by indirect purchasers.’ The plaintiffs here did not purchase a product from the NFL or any team, and may therefore be barred from bringing suit against the NFL and its teams,” he wrote. “In sum, the defendants — the NFL, its teams, and DirecTV—have substantial arguments on the law.” 

He encouraged the NFL and DirecTV to seek a new petition if they are unsuccessful as the case proceeds anew in District Court.

Gregg Levy, an attorney for the NFL with Covington & Burlington, did not immediately respond to request for comment Monday, nor did DirecTV attorney Paul Clement of Kirkland & Ellis. Arun Subramanian of Susman Godfrey, who represents the business owners, also did not immediately return a request for comment.

Justice Amy Coney Barrett, who was sworn in last week, did not participate in this decision.

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