By Seth Corwin, UNH Law Student and Legal Intern
Earlier this week, Amazon announced that it would broadcast an NFL game on Black Friday this year through its popular streaming service Prime Video. According to the online shopping retailer, the game will be free to stream for all viewers, regardless of whether they have an Amazon Prime membership, and will start at 3 p.m. Eastern. Notably, the game will mark the first time the NFL has played a game on Black Friday since the league began broadcasting games on television.
Tellingly, the addition of a Friday game to the NFL’s dominating television schedule, highlights the Sports Broadcasting Act (SBA) of 1961’s fading legal authority. In 1961, Congress enacted the SBA to provide the NFL, NHL, NBA, and MLB with an antitrust exemption that allows each league to merge their teams’ broadcasting rights without fear of being sued under antitrust law. In essence, the act allows the four major leagues to enter into league-wide television contracts with television networks like CBS, ABC, NBC, and FOX on behalf of the teams within their respective league. Notably, Congress was concerned that the NFL’s newfound ability to enter into large television contracts would harm high school and college football viewership and attendance. Subsequently, Congress included language within the SBA stating that the law did not protect any agreement from antitrust law that permitted the broadcasting of “all or a substantial part” of any professional football game on any Friday after 6 p.m. EST or on any Saturday between the second Friday in September to the second Saturday in December from any television station within seventy-five miles of the game site of any college or high school football game.
This exception to the SBA antitrust exemption would seemingly leave the NFL vulnerable to a lawsuit under antitrust laws, despite the Black Friday game beginning at 3 p.m. Eastern. The average length of an NFL game is three hours and twelve minutes. Therefore, while most of the game would be played prior to 6 p.m. Eastern, the game’s conclusion, a “substantial part” of the game and arguably the most exciting portion, will likely be played after 6 p.m. Eastern. Consequently, this leaves the NFL exposed to possible antitrust lawsuits. Amazingly though, the NFL seems unconcerned with the prospects of being sued under antitrust law.
This lack of concern from the NFL regarding the SBA highlights the deterioration of the law’s authority, as the NFL pushes into restricted windows for its television broadcasts and as the four major sports leagues enter into an increasing amount of television contracts with cable networks that do not provide free over-the-air programming (which many argue is what the SBA was supposed to exempt from antitrust laws). As these trends from the four major sports leagues continue, it will be worth monitoring the SBA’s legal authority, or lack thereof.