Upon Further Review: How NFL Network is Violating the Sherman Act

Posted: 10 Nov 2009

See all articles by Ross C. Paolino

Ross C. Paolino

affiliation not provided to SSRN

Date Written: Spring 2009

Abstract

The National Football League ("NFL") earns more money each year in broadcasting revenue than the entire Gross Domestic Product of roughly fifty-eight countries. In 2003, the NFL sought to expand its broadcasting reach by launching its own channel - NFL Network - a cable and satellite channel offering fans "24 hours a day, 7 days a week, 365 days a year" of football programming. In 2006, as the NFL began to grow its network, the NFL announced it would broadcast live prime-time regular season games on NFL Network. By essentially taking back games that it had originally sold to other networks and placing them on NFL Network, the NFL forced a majority of fans to purchase or subscribe to NFL Network if they wanted to watch the games. Moreover, even if a football fan were willing to pay the extra cost to subscribe to NFL Network, that fan may still be unable to view the games because NFL Network is not available on many of the largest cable carriers in the United States. The NFL's undisputed monopoly over its own football games, the unavailability of NFL Network to millions of consumers, the apparent siphoning of freely accessible televised NFL games, and the deliberate use of its monopoly power to ensure the channel's success collectively suggest that NFL Network may not pass muster under U.S. antitrust laws, specifically the Sherman Act. This article engages in a comprehensive antitrust analysis of NFL Network. After discussing NFL Network's emergence and the development of the Sports Broadcasting Act of 1961, this article sets forth the applicable product market and geographic market and engages in a rule of reason analysis to determine whether NFL Network violates the Sherman Act. Following this analysis and taking into account the NFL's likely counter-arguments, with particular attention to the single entity defense, the article concludes that NFL Network is arguably engaging in anticompetitive conduct and violating the Sherman Act.

Keywords: NFL, National Football League, NFL Network, Sherman, Sherman Act, Copperweld, American Needle, Sports Broadcasting Act, SBA, antitrust, consumer welfare, rule of reason, ESPN, single entity, Chicago Professional Sports

JEL Classification: K2, K21, L11, L12, L4, L83

Suggested Citation

Paolino, Ross C., Upon Further Review: How NFL Network is Violating the Sherman Act (Spring 2009). Sports Lawyers Journal, Vol. 16, No. 1, 2009, Available at SSRN: https://ssrn.com/abstract=1467344

Ross C. Paolino (Contact Author)

affiliation not provided to SSRN ( email )

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