Facts can often get in the way of a compelling argument, and this dynamic plays out frequently in courtrooms.
Trials are often about conveying a message rather than the truth, and if an opponent is not prepared to counter efforts by one side to paint a picture that doesn’t match reality, false impressions can take hold.
For example, the Sunday Ticket litigation saw several skirmishes over the issue of whether the NFL allowed DirecTV to offer a streaming version of Sunday Ticket to military members, spouses, and veterans. Both sides recognized the power of pleasing juries who may have strong feelings about the men and women who protect us at home and abroad, and so both sides took predictable positions on whether the league offered Sunday Ticket for military members.
Finally, yes, active duty military members can watch games through the Armed Forces Network, but the NFL (based on the NFL’s own internal documents) denied DirecTV in 2017 a request to expand streaming of Sunday Ticket to military members, spouses and veterans.
Another side issue never came up: While the NFL continues to insist on making every game of every team available on free-to-air television in local markets, the plaintiffs failed to make a crucial point: For the first four years (2011-22) of the 11 seasons covered by the class action lawsuit, the NFL had blackout rules, threatening to stop broadcasting home games in local markets if the games were not sold out.
Blackout rules were, at one point, in place even when tickets were sold out (President Richard Nixon It helped me to end the habit) came under political attack at the start of the last decade. FCC votes to repeal blackout rules and Senator John McCain introduced the bill That would mean the demise of all taxpayer-funded stadiums.
In 2014, the NFL hired Hall of Fame receiver Lynn Swann to make the awkward, contrived case for keeping the blackout rules in place to protect free football on television, even though the blackout rules prevented games from being shown on free TV.
Here is the article Article posted on an NFL-owned and operated website on August 2, 2014 about Swann’s appearance on an NFL-owned and operated television network. It’s hard to make sense of Swann’s comments, in which he tries to justify the blackout rule as a way to promote football on free TV. (Please do not click on the link to the NFL’s “Protecting Football on Free TV” website at the bottom; we tried to warn you if you did.)
Here’s another article It’s full of self-serving arguments aimed at justifying the decision not to broadcast games on free-to-air television in local markets unless local stadiums are full, effective July 17, 2014. (The same warning about clicking on links to websites created by the NFL promoting the blackout rules applies.)
As the NFL attempts to justify the antitrust violations inherent in its Sunday Ticket product under the banner of “free TV,” plaintiffs missed the opportunity to point out that the league did not suspend its blackout rules until 2015, which prevented games from being shown on free TV if locals failed to put enough money into the box office. This tends to put a big question mark over the league’s attempt to distract jurors from the legal flaws of Sunday Ticket by declaring as often as possible that “we will show all games on free TV in the markets where our teams play.”
They do now, they didn’t for the first four of the 11 years that the class action lawsuit covered, and it’s likely that the blackout rules would still be in place today if the FCC and John McCain hadn’t tried to get rid of them.
The missed opportunity didn’t hurt the plaintiffs: They still won a $4.7 billion judgment — an amount that will triple if a formal judgment is entered — but if the plaintiffs had been able to lure professional football into the “free TV” trap, the amount might have been closer to the $7 billion they sought.
