Antitrust In the News This Week
Senators Threaten NFL Antitrust Exemption
This week, the Federal Communications Commission unanimously voted to end its sports blackout rule. For the moment, this vote may not have much practical effect, as the NFL has contracts with its network partners that will allow the league to keep games blacked out if a sufficient number of tickets are not sold.
In the wake of the FCC vote however, Senators Richard Blumenthal (D-CT) and John McCain (R-AZ) have sent a letter to the league urging them to voluntarily end their blackout policy. If not, the letter states that Congress “will be forced to act” by eliminating the NFL’s antitrust exemption. The exemption, granted by the Sports Broadcasting Act of 1961, was first put in place to shield the NFL from antitrust liability which they would otherwise have been subject to for pooling rights to broadcast games. This allows the NFL and the other major sports leagues to sell “packages” of games to broadcast networks.
Elsewhere, Senator Blumenthal has argued that at the very least, the exemption should not be permanent.
[Blumnethal] would revoke the permanent status of the antitrust exception and instead make it renewable every five years. A commission comprised of members of the sports world and other industries would create benchmarks and metrics for success in areas including health care, domestic violence and drug abuse that the league would have to meet in order to get the status renewed.
While such changes could strike quite a blow against the NFL’s dominant position, this is hardly the first time the idea has been floated. In 2007, Senators Patrick Leahy of Vermont and Arlen Specter of Pennsylvania threatened to reconsider the NFL’s exemption if progress was not made in making games televised on NFL Network available to more viewers. In 2011, the leading Democrat on the House Judiciary Committee, John Conyers, introduced a bill to end the exemption following the NFL lockout. The Committee’s Republican chairman showed little interest in the bill, not wanting to get involved in a “private dispute,’ and it is likely that current efforts will meet similar resistance. Even so, the situation bears watching moving forward.