In short
Sports law and politics—why sports are central on Capitol Hill and in courts; likely changes in college athletics; and the NFL’s Sports Broadcasting Act and Sunday Ticket antitrust litigation.
Guests
Eric Gardner, legal analyst at Puck; described as a “legal ace” and “plugged in” sports-law expert. Host John Arand (sports correspondent; Varsity podcast host).
Key claims
High ticket prices don’t meaningfully reduce fandom; Congress involvement often reflects grandstanding plus sports’ big-money stakes. College sports is the biggest near-term change area due to repeated NCAA losses and unstable rules. NCAA restraints crumbled after antitrust defeats, especially NCAA v. Alston, leading to more athlete compensation, NIL, and transfer flexibility. For the NFL, the Sports Broadcasting Act is about antitrust exemption for “sponsored telecasts” (traditionally broadcast), not blanket immunity for streamer deals.
Notable examples
NCAA v. Alston; upcoming House Judiciary hearing (Jim Jordan) with Roger Goodell declining; NFL Sunday Ticket case in the Ninth Circuit (jury for consumers, judge threw out damages; possible Supreme Court path).
Written by AI. May contain mistakes. Listen to the episode to check what was said.
Chapters
Tap a time to open that second in VOTicket Pricing and Fandom
0:30 to 0:54
Discussion about the high ticket prices for major sports events and their impact on fandom.
“Hey, it's Bill from the Bill Simmons podcast.”
Ticket Pricing and Fandom
1:28 to 3:02
Discussion about the high ticket prices for major sports events and their impact on fandom.
“But before we get to Eric, today is Sunday, June 7th, and here's what I'm watching.”
Sports Legal Landscape
3:02 to 4:54
Eric Gardner discusses the legal issues surrounding sports and their popularity in Congress.
“The complaint that floor seats are all bought by corporations has been around forever.”
The Evolution of College Sports
4:54 to 7:41
Exploration of the changes and challenges facing college sports today.
“So it doesn't surprise me that sports has come up more and more.”
The Alston Case and Its Implications
7:41 to 14:00
Analysis of the Alston case and its impact on NCAA regulations and athlete rights.
“sports and the way college sports kind of feeds into the amateur thing.”
Navigating NCAA Regulations and Future Predictions
14:00 to 16:24
Discussion on NCAA regulations, athlete rights, and potential future changes.
“And then like, you know, in the future, it's, you know, what do you mean I can't transfer in the middle of the season?”
Predictions on Legislative Changes in College Sports
16:25 to 18:57
Insights on potential legislative developments affecting college sports.
“Now, the great thing about Eric Gardner is when I started working with him, we're going to talk about the Sunday ticket case coming up.”
Impact of NCAA Changes on High School Sports
20:01 to 21:47
Exploring how NCAA changes could influence high school sports and NIL rights.
“Some stars that do actually have some value to their brand image.”
The NFL and the Future of Broadcasting Rights
21:47 to 24:48
A look at the NFL's broadcasting rights and implications of potential changes.
“They invited Roger Goodell, who, as the NFL told me, quote unquote, was going to politely decline.”
Debate Over the Sports Broadcasting Act
24:48 to 28:00
Analysis of the implications of the Sports Broadcasting Act on sports broadcasting.
“Yeah, I mean, it goes even more than that.”
Show all 15 chapters
The Future of Sports Broadcasting
28:00 to 31:34
Discussing the implications of sports leagues shifting to streaming services.
“But it's interesting to me that you don't really hear streamers talking about the SBA as much.”
Antitrust and the SBA
31:34 to 36:20
Exploring the complexities of antitrust laws in relation to sports broadcasting deals.
“much from Comcast for the right to pick up all the local stations.”
The Sunday Ticket Case
36:20 to 39:21
Analyzing the ongoing legal battle surrounding the NFL's Sunday Ticket broadcasting rights.
“We don't need to show up on Congress to, you know, be reminded of that.”
NFL's Legal Stance and Future
40:38 to 42:00
Discussing why the NFL has not settled in the legal battle regarding streaming packages.
“Turns out, it was more of a thinking about run club era.”
NFL Streaming Lawsuits and Potential Scenarios
42:00 to 45:57
Explore the implications of ongoing lawsuits against the NFL regarding streaming rights and the potential outcomes for the league.
“the NFL actually wasn't the only league to be sued over streaming packages and out-of-market packages.”
Transcript
Automatic transcript. May contain errors.0:00Eriq Gardner:We are live from Fetty's house. Guests are gathering around the TV, even with a big storm outside. Are we worried about the feet? Nope, they have Xfinity Wi-Fi. Get reliable fiber-powered gig Wi-Fi with Peacock included to stream the beautiful game this summer. Xfinity, imagine that. Restrictions apply. New gig internet customers only. Actual speeds vary. Offer for Peacock Premium with ads currently at$10.99 a month value and limited to Xfinity internet members with newer upgraded gig speed or faster service. Activation required to access content. Peacock must be activated within first 90 days.
0:24Eriq Gardner:Management of existing subscriptions may be required to avoid multiple subscriptions and duplicate charges. Third-party built subscriptions continue until canceled. Hey, it's Bill from the Bill Simmons podcast.
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0:39Eriq Gardner:of FIFA World Cup 26 tickets and prizes. Enter now at MichelobUltra.com slash superior access slash FIFA World Cup 26.
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0:52Eriq Gardner:ends on July 31st, 2026, multiple entry periods. Visit www.micelobUltra.com slash superior access slash FIFA World Cup 26 for free entry, entry deadlines, prizes, and details.
1:05Eriq Gardner:congratulations you made the varsity the podcast my name is john arand and i'm a sports correspondent and the host of this pod and today i'm happy to have eric garden join the varsity i work with eric at puck and he is one of the most plugged in legal minds that i know so we're going to talk a lot about why sports and the nfl in particular have been so popular in the courts and on capitol hill this year. But before we get to Eric, today is Sunday, June 7th, and here's what I'm watching. Have you seen the get-in prices for the NBA Finals games in New York this week? If you want a seat in the rafters, it's going to cost you close to$8 ,000, and those prices have been rising.
1:46Eriq Gardner:It's the same story for other big events. The cost of the cheapest tickets for the World Cup Final or the Super Bowl, they're all around the same level. Now, just last week, a reporter for Business Insider called me to ask about those prices. Having prices so high and, frankly, unaffordable has to have a negative effect on fandom. If regular fans can't afford to go to games, won't that keep them from being fans? It does seem like a logical question to ask, but my response went down a different path. First, team owners and leagues have long been frustrated at ticket resellers. The teams put one price on their tickets and then watch those prices double or triple by scalpers or ticket resellers.
2:28Eriq Gardner:That, to them, suggests that they should have been charging more than they have in the past. Then there's the issue of attendance. If the Knicks charge$8 ,000 to get into the game and Madison's Gordon Garden is half full, then they would have misjudged the demand. But they know, and I know, and you know, that that place is going to be packed regardless of how much tickets go for. Really, all evidence suggests that the high price of tickets, especially for the really big events, is not having any effect on fandom. That's not to say that owners and league executives aren't concerned. The complaint that floor seats are all bought by corporations has been around forever.
3:10Eriq Gardner:But the sports business is conscious of that and monitoring price points. But the reality is that$8 ,000 tickets for this Knicks team in these NBA finals is affordable enough for enough fans. So now let's get to Pucks legal ace, Eric Gardner. Eric Gardner, really appreciate you coming on the pod to talk about all of the, I can't believe that I'm writing so much about the legal process and about Capitol Hill and sports on Capitol Hill. It used to be a safe haven for us, but sports has really taken over in these areas. Before we start talking about specific things like Sunday ticket and college and everything along those lines, why is that?
4:02Eriq Gardner:Is there like a 50 ,000-foot view for why sports right now is – there's so much popularity on Capitol Hill and in the legal system with issues involving sports leagues and teams?
4:16John Ourand:I mean sports has become more central to society and I think that politicians recognize that. It's an easy way to do constituency service. And it's also become, you know, extremely big money. And it's a big tax on your checkbook, you know, everything that you're paying for. So in this, you know, obsession over affordability, I mean, I'm sure that, you know, these congressmen are interested in doing something to help their constituents and to do something that connects to them. So it doesn't surprise me that sports has come up more and more. um yeah it's as simple as that again i want to stay sort of at a big picture level here but
5:04Eriq Gardner:you know when i think about congress getting involved with anything that seems like a decade long process it seems like something that's that doesn't happen uh quickly and so uh in the past when sports issues sort of came came before you know various committees or became the pet projects of various politicians, I sort of ignored them because I just felt like that, you know, if anything happened, it would still be so long down the line. Does that still hold true today?
5:39John Ourand:Yeah, I mean, I think that a lot of it is grandstanding and posturing. I mean, we'll get into it in a second. But, you know, the coming hearing in a few days, I wonder, you know, is there really anything to come from this? Or is it just, you know, a bunch of, you know, talk and discussion and posturing? And, you know, I think that a lot of it really just doesn't do much. But it's a, you know, way to frame interesting conversations and, you know, get stuff, you know, talked about.
6:12Eriq Gardner:What in your mind is, of all the things going through, and we have college, you know, working its way through. they're trying to set up guidelines and rules around the transfer portal and nil we have uh you know a bunch of uh of cases nfl involving the nfl going through the courts um we have the sports broadcasting act of 1961 what is that 60 years ago 65 years ago and it's still sort of governing uh what we're doing but that's uh that's uh getting a lot more attention uh right now on Capitol Hill. In your mind, what's the most likely change agent that you see out there? What topic is most likely to be affected by what's going on right now in the courts and on Capitol Hill?
7:08John Ourand:I definitely think college sports is what's in the midst of a revolution and there's changes coming. It's in a very unstable place right now. There's been, you know, lots of legal action. There's, you know, policy proposals. And I think that, you know, the college sports that we see today is going to be nothing like what we see in 10 years. There's just a lot of happenings there. It also touches a lot of people. A lot more people play college sports than play professional sports and the way college sports kind of feeds into the amateur thing. I mean, it touches everything. It touches high school sports and all that.
7:56John Ourand:So I definitely think that that's the biggest area where there is real action and with real stakes and really intriguing kind of legal issues as well that, you know, kind of bedevils everyone. You know, when, you know, the president of the United States is talking about, you know, saving college sports. I mean, this is like one issue where, you know, I think whether you're a Democrat or a Republican, people are thinking that, you know, this is something that actually does need some saving because, you know, a lot of it does seem to be kind of on the cliff here.
8:32Eriq Gardner:You know, you said it, and that's what always strikes me. These are bipartisan issues. There isn't like, when it comes to the Sports Broadcasting Act, when it comes to college sports when it comes to the nfl it doesn't feel to me like there's a a divide uh across the the political aisles it's very it's a very populist message about we want we want to make things a lot more affordable and we and for for um for fans or we want to make you know the the situation a lot more easier for fans to watch uh it seems you know again it's a very populist issue right
9:08John Ourand:Well, I think that, you know, everyone agrees that, you know, the issue is important and that there needs to be changes. I definitely do sense that there are partisan lines on some of the proposals. I'll give you an example. You know, are athletes, student athletes, employees, and should they be unionized? I think that's an issue that, you know, cuts very deeply among Republicans and Democrats with different kind of views about the worth of unions and unionization. I think that the role of antitrust and whether or not the market should be let on their own, whether the college sports academia needs to be protected or whether it's the athletes who need to be protected.
10:03John Ourand:I mean, these are things that, you know, you can sense a little bit of divide. But overall, you're certainly right that it is bipartisan where everyone agrees that something needs to change.
10:17Eriq Gardner:All right. Let's start with college sports because that's the one that's sort of most ripe for change. And, you know, as you said, President Trump came out and said in support of saving college sports. There have been a lot of hearings on the matter. All of college sports, including the biggest conferences, have gone to Congress. You never see this in business. They go to Congress and say, we need your help to set up some guidelines, although the Big Ten and the SEC did not particularly like the current bill that's sort of making its way. So they're trying to affect changes on that. Where do things stand?
10:58Eriq Gardner:How do you see this parsing out?
11:04John Ourand:Yeah, I mean, well, first of all, to take a step back, I think that, you know, the NCAA and, you know, the conferences and schools have been, you know, suffering some huge defeats in courts over the last decade. And the biggest being, of course, the Alston case that happened at the Supreme Court where, you know, it was basically unanimous. And, you know, as such, there's been a real, you know, problem in getting any sort of legal foothold to, you know, come up with rules that can't be challenged, to exert authority, to, you know, have something stable enough so you could say, okay, this is how it's going to be.
11:50John Ourand:and then we can have some expectations and to, you know, do everything around it. As soon as, you know, the NCAA tries to do something like that, you know, they're hit by a lawsuit and they have to, in their defensive posture, and then the courts are telling them that, you know, that they have to change. And so, yeah, it's not surprising to me that they've gone running to politicians for help on that. I mean, there is a—
12:21Eriq Gardner:Let me interrupt you for a quick second because you referenced the Austin case. Take us through what that case did, what that case said, and why that was important.
12:30John Ourand:Yeah, I mean, basically it was about the restraints that the NCAA had set up to limit, you know, compensation for student athletes. Not only compensation, but, you know, benefits in any way in terms of, you know, tuition aid, extra tuition aid, like the housing and living costs. You know, basically when you became an athlete who participated in the NCAA, you agreed to certain things, agreed to limit yourself, and those restraints were challenged on antitrust grounds. And the athletes were ultimately successful. The schools tried to argue that it was all pro-competitive, that they needed to preserve the amateur system.
13:23John Ourand:But, you know, the judge said, you know, you don't need to go this far. You can do lesser limits. And that basically started crumbling down the system where, you know, after each successive case, you know, the restraints kind of went away. You know, oh, yeah, we have to give, you know, student aid. And next it was, okay, well, there shouldn't be any limits on housing costs and tuition and all that. The next was, you know, well, you're limiting my ability to license my name and image rights. And then like, you know, in the future, it's, you know, what do you mean I can't transfer in the middle of the season?
14:08John Ourand:You're limiting my opportunities to, you know, be gainfully employed or to compete in what I want to compete in. And so, you know, one after another, these restraints kind of went by the wayside. And, you know, the NCAA, which is a huge big business, was finding it very hard to, you know, collect money from all of this, to come up with rules that, you know, let everything continue. And so, you know, they've come to settlements with some of the athletes in the house case. Um, they've, uh, you know, tried different, different ways, but I think there is, uh, kind of a consensus that something more needs to be done, whether it's, uh, you know, federal legislation or whether it's negotiation with the union, there's disagreement about that, but we're, we're still at a place that's kind of middle innings.
15:08John Ourand:And ultimately what we have today is not going to be the solution that we see a few years from now.
15:15Eriq Gardner:Middle innings. What is the timetable that you see for this?
15:22John Ourand:Yeah, I mean, right now we're still, I guess, waiting to see the resolution of a few different things, you know, the resolution of whether student athletes are deemed employees and whether they can unionize. We're waiting to see a decision that's coming in an important hearing coming up about whether the college organization that enforces the house settlements can come up with these hard transfer rules. You know, we're waiting to see whether federal lawmakers are able to, you know, get legislation passed. And so all of these different things are happening right now. And I don't know how long that's going to take.
16:13John Ourand:It could take one year. It could take five to 10 years. But I do know that there's something that's going to be happening. Definitely big changes in store. All right.
16:25Eriq Gardner:Now, the great thing about Eric Gardner is when I started working with him, we're going to talk about the Sunday ticket case coming up. But Sunday ticket case in particular, at every step of the way, you have correctly predicted what's going to happen within the courts. Spooloo, remember Disney and Fox and Warner, they set up a venue, a streaming service, and you correctly predicted exactly what was going to happen almost with the timing of that. So I'm building you up here, Eric, because I want to ask your predictions. How do you see this shaking out with regards to college? What's the most likely scenario that we're going to have sort of moving forward here.
17:15Eriq Gardner:The Sunday ticket or college sports? With regards to college sports. And again, I built you up, so don't mess this one up, Eric.
17:26John Ourand:I mean, predicting college sports, that's a definite challenge. I definitely think that there will be some legislative changes. I mean, it's really hard to count on federal politicians shouldn't do much of anything. And so I don't know whether it's going to be this election cycle, but there definitely seems to be some bipartisan consensus forming around the notion that certain things need to happen. I think that there'll be some tightening up. The one thing that I really find it hard to predict is this unionization issue right now. I think it makes so much sense that there would be a union because once there's a union, you could collectively bargain a lot of these issues and that leads to an antitrust exemption.
18:19John Ourand:But for the most part, colleges and the NCAA have been resistant to that. Now, I did see a couple of weeks ago that I think it was the commissioner of the SEC started talking about maybe collective bargaining as something that could be enticing. So we'll see. But yeah, I think that we're going to see some small changes and then some big ones down the bend.
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20:00Eriq Gardner:the other part of this college thing that that i keep thinking about and i is um a college is going to figure itself out we we don't know if it's going to be five years ten years but it's going to figure itself out but does that trickle down to high school like because because these these same issues like would affect high school players and then potentially you know even grade school players in aau and things along those lines is there any sort of legal basis for high school kids to start to you know collect on nil or or do things along those lines
20:34John Ourand:oh yeah it's it's definitely uh it has influence on it now i i don't think the high school is as big business as as college sports i i you know i don't know if if there's any high school
Read the full transcript
20:46Eriq Gardner:association you know signing here in these here in dc we have like gonzaga and the mafa and good
20:52John Ourand:counsel and paul the six like come on i mean but i guess with the rise of fast tv and and you know always on uh tv stations i i suppose that they're these rights are worth something and i think what you see maybe less so in high school when it comes to the big sports like basketball and football, but more so in kind of Olympic sports because there you do get stars a little bit earlier. Some stars that do actually have some value to their brand image. um yeah there are rules in place that are just as you know uh imperiled as as the ones in in college sports and uh yeah they'll take their lead from what's happening in college sports i definitely think that there's some big changes ahead for for high school as well
21:52Eriq Gardner:you reference uh let's get get on the the nfl and the sports broadcasting act you reference And just this week on Wednesday, there's going to be a hearing in front of the House Judiciary Committee with Jim Jordan. They invited Roger Goodell, who, as the NFL told me, quote unquote, was going to politely decline. He politely declined the invitation. Clay Travis is supposed to be one of the witnesses. The head of the National Association of Broadcasters is also going to be there. And it appears to me to be a real fight to keep the NFL in particular from taking its games and selling them to streaming services.
22:42Eriq Gardner:And they want to protect not necessarily like Fox or CBS, but they want to protect the affiliates, you know, that small system in Walla Walla, Washington that depends on, you know, Fox's NFL programming or CBS's NFL programming.
22:59John Ourand:You know, it's interesting to me that you put it that way, because I wonder how much of that actually has to do with the Sports Broadcasting Act. I mean, if you took away the Sports Broadcasting Act, to me, that wouldn't necessarily change where the leagues are selling their rights packages to. In fact, it is the case that it would make it easier to sell it to streamers rather than broadcasters. So it's interesting to me that it's built as an analysis of the Sports Broadcasting Act, when really this is an opportunity for politicians and some witnesses to get up and say how bad it is for the leagues to even be considering putting these games behind the paywall.
23:52Yeah.
23:53Eriq Gardner:And in fact, I think that you have anti-NFL forces and you have real big supporters of the Sports Broadcasting Act that are saying that the NFL violated the Sports Broadcasting Act back in the 1980s when it sold a package to Turner and to ESPN because it wasn't on broadcast. They went to cable and that they they're continuing to run afoul of it by by selling it to to Netflix and to YouTube and and to Amazon Prime, you know, the streamers that are out there. And so what I can't get my head around is if they do get rid of the Sports Broadcasting Act and then presumably they wouldn't be able to pull their rights together as they are now, then you have the Cowboys selling it to the highest bidder, which is going to be one of these streamers, probably Apple or Netflix or Amazon Prime.
24:48John Ourand:Yeah, I mean, it goes even more than that. I mean, if the Sports Broadcasting Act goes away, I don't necessarily see why that's a good thing for broadcasters. It potentially means that someone could sue Fox or someone could sue CBS, because there's no antitrust exemption for any time these rights get pooled and then packaged. And so it's a little bit strange to me. The other thing that really needs to be kind of clarified is that there's a difference between an antitrust exemption and an antitrust violation, right? I'm sorry to use this metaphor here, but just because you're putting on a helmet doesn't mean that you're protecting yourself from a concussion.
25:44John Ourand:You know, it's two different things. You could get rid of the antitrust exemption, but, you know, the leagues would still be free to argue that there's pro-competitive benefit to being able to, you know, pool their rights together, to be able to coordinate with each other so that, you know, two teams show up on the playing field on a certain day. And so, you know, I honestly don't know what would be the, you know, benefit or the repercussions of getting rid of the SBA. Like I said, I think that this is more an opportunity, you know, a chance to say, you know, be careful, leagues, about, you know, or that sort of thing.
26:40John Ourand:But I think that, you know, there is a case to be made that, you know, maybe it's more, you know, democratic. Maybe there should be more games, you know, to Netflix. I don't hear this as much anymore. But, you know, how many people are actually, you know, getting broadcast via rabbit ears these days? I look this up myself, and it's less than the amount of people who are subscribing to Netflix. So, I mean, if you want to talk about, you know, free over the air, it's just not that big of a market anymore. Most people actually pay for CBS or for Fox or NBC by paying for the, you know, expensive cable packages.
27:31John Ourand:And so, So, you know, I, you know, a lot of this discussion kind of confuses me, I will admit.
27:39Eriq Gardner:You know, Eric, my background is I grew up covering the cable business and I was writing for Cable Facts Daily, FAX, Cable Facts Daily, and we never called it free TV because that would, that would irritate the cable operators. Like we pay, we pay those channels to come on there. They're in a retransmission consent. It's not, it's not free TV. It's just broadcast TV. You said you looked it up. how many how many people watch broadcast tv just through rabbit ears it's it's about 20
28:09John Ourand:right right now um and mostly you know rural areas or that's that sort of thing it's certainly not a big and and it's much smaller among uh younger people as well so uh you know i really I think 30 % of the population subscribes to Netflix right now. So it's less than that. But it's interesting to me that you don't really hear streamers talking about the SBA as much. I wonder why none of them are appearing at the hearing on Wednesday to kind of stick up for maybe expanding the SBA to cover streamers. streamers, you know, if we're really going to have a discussion about, you know, the continued viability of the Sports Broadcasting Act, let's get a, you know, a well-rounded kind of view of its future, not, you know, just a few broadcasters who want to use it as an opportunity to shame the sports industry for, you know, putting sports behind a streaming paywall.
29:26John Ourand:Because to me, I don't necessarily see how that's worse than putting it behind the cable or satellite paywall.
29:34Eriq Gardner:I so appreciate having you on this pod because you're talking about the sports industry and talking about all sports. And sure enough, not this year, next year, a conference final, NBA conference final is going to be on Amazon. It's going to be streamed. Major League Baseball as the Home Run Derby, a really popular event, is headed over to a streamer, is headed over to Netflix. But the only sports figure that was invited to this week's hearing is Roger Goodell and the NFL. So the NFL, I mean, it speaks, of course, to the popularity of the NFL. But the other leagues have been moving to cable and to streaming much, much quicker and much more forcefully, I think, than the NFL has, certainly.
30:28John Ourand:Yeah, I mean, I think it really has to do with local affiliates and their ability to negotiate retransmission fees with cable companies and with satellite companies and the leverage involved. I mean, having NFL games is the ultimate leverage. And, you know, for them to lose NFL games to streamers, you know, it imperils their future. And so it doesn't surprise me to hear that they're so focused on NFL because the NFL is what really like determines their future. I mean, if they lose NBA games to streamers, if they lose, you know, major league baseball games, they can shrug that off. They can live with that.
31:20John Ourand:But, you know, the fact that, you know, NFL games are starting to appear exclusively on Peacock and everything like that or on Netflix, that has to be an extreme concern for them. Because what happens the day that a big NFL package goes to YouTube or goes to Netflix, that's a day when Nexstar can't command nearly as much from Comcast for the right to pick up all the local stations. And I think that's what really this battle is all about.
31:59Eriq Gardner:So you made one other point that I just want to highlight, too, that I just thought was so smart. Where does the antitrust exemption end and the SBA begin? Because I conflate those two just in my writing. They seem to be almost the same thing to me. But they are two different distinct things that the committee, the Judiciary Committee and the broadcasters and the league have to deal with.
32:31John Ourand:Yeah, I mean, the act itself talks about sponsored telecasts. And it's traditionally been known to only extend to broadcast television. I mean, even when the bill was passed and for years when people were talking about it and testifying about it in Congress, it's always been understood to just cover broadcasting. And so, yeah, I think the leagues are totally susceptible to legal challenge when it comes to some of the deals that they've been making with streamers. But that's the case whether or not anything changes. I mean, it's just how it is.
33:17Eriq Gardner:Let me just – a quick question on that. When you say susceptible to legal challenges, that means the deals that they did like Thursday Night Football to Amazon, that runs afoul of the – literally of the Sports Broadcasting Act, right?
33:33John Ourand:No, no, no, no, no. So let's be clear. This is, again, the difference between an antitrust exemption and an antitrust violation. So what the SBA says is that you have an exemption so that if you do get sued and you're covered by the SBA, then there can be no antitrust violation, right? So the SBA doesn't apply outside of sponsored. It doesn't apply outside of broadcasts. So someone could sue over the Amazon's Thursday night package and the league and Amazon couldn't point to the SBA and say, you know, that covers us. We're immune from antitrust challenge. But that doesn't necessarily mean that they would lose the antitrust case.
34:24John Ourand:They would just have to show that what they did was pro-competitive, that they could attack whether there was actually a market for Thursday night games. There's many different defenses to an antitrust lawsuit. And these cases are not easy. If they were easy, I think we'd see more lawsuits about this. Even the case over Sunday ticket is a case that's been going on for a decade. I mean, and it's a case where at the moment, this might change, but at the moment the league is winning. And so, you know, you're talking about cases that cost tens of millions of dollars to mount. And so that's why, you know, we don't see lots of challenges over it.
35:11John Ourand:But that being said, if, you know, if the Sunday ticket case gets reversed, if there starts being all these signals that the leagues aren't covered and that there is money to be made by class action attorneys by suing the leagues and their partners over this, I think we'll see more cases. All right.
35:30Eriq Gardner:So before we get to Sunday Ticket, and I'm dying to talk to you about Sunday Ticket, I'm going to ask for your, I don't want to say prediction. Right now in 2026, with regards to the hearings and the Sports Broadcasting Act, what's the most likely scenario? Where are we headed and what's the timetable for it?
35:50John Ourand:I don't think we'll see much of anything coming up to the sports broadcasting. I think, you know, like I said at the beginning, I think a lot of this is grandstanding. It's a lot of, you know, tisking, you know, wagging your finger at the league saying, you know, be careful of licensing to streamers. Just remember that you don't have antitrust exemptions there. And so, you know, from a league standpoint, they are like, yeah, we know that. You know, stop hounding us about it. We don't need to show up on Congress to, you know, be reminded of that. Now, things may change. I mean, we'll see what the courts do in the Sunday ticket case.
36:33John Ourand:Maybe if the leagues get more desperate, they would be willing to negotiate some of this. Maybe they would go to Congress and say, hey, we would be willing to put some limits on our ability to license the streamers if you give us more antitrust cover. We'll see. But at the moment, I don't see anything really changing outside of whatever happens in court. All right.
37:01Eriq Gardner:So let's get to Sunday ticket. This is, you know, I started at Puck about two and a half years ago, and I think you started telling me to keep my eye on the Sunday ticket case as it was going through because it had the potential to blow up. Where are we right now? And the same question I've had for the last three things. Where are we right now and what's the likelihood of where it's going to end up? Right.
37:27John Ourand:So about two years ago, there was a trial in the Sunday ticket case. The jury found for the consumers who were alleging antitrust violations, saying that basically the leagues shouldn't have, the teams, the NFL teams shouldn't have, you know, grouped together to sell this out of market package that really inflated the prices of out of market games that had each of the teams separately negotiated. appreciated, similar to what conferences do in college sports, that they would have gotten a much bigger price break on their, and there'd be lots more innovative products. so so um you know the the jury you know had a you know several billion dollar award that was set to be trebled so it was going to be a 14 15 billion dollar case for the nfl and then all of a the judge threw it out he wasn't uh particularly impressed by the economics testimony uh he didn't like the comparisons the college sports he he thought it was junk science and so he he reversed it.
38:39John Ourand:And so that's on appeal right now. It's in the Ninth Circuit, you know, the Ninth Circuit hearing stuff like, well, even if you, you know, agreed to reverse the financial penalty, there's still the liability issue and the question of whether there should be an injunction. In the final days of the Biden administration, their Justice Department supported the consumers. It's unclear what the Trump administration's DOJ feels about this case. But there was oral arguments about this back a couple months ago, and we're waiting on a decision from the Ninth Circuit. I listened to the hearing. To me, it sounds like the Ninth Circuit is ready to reverse the judge and revive the case, whether or not that means that the case goes back to the trial court for a new trial, or whether the multi-billion dollar penalty gets reinstated or some sort of other penalty, who knows.
39:45John Ourand:Ultimately, this might end up at the Supreme Court, where the Supreme Court decides whether or not there's an antitrust violation with the sheer act of these teams pooling their rights together to sell.
40:26John Ourand:Pass Ultimate with a custom color Xbox wireless controller. Learn more at windows.com slash student offer. While supplies last, ends June 30th. Terms at aka.ms slash college PC.
40:36Eriq Gardner:You thought this was your run club era. Turns out, it was more of a thinking about run club era.
40:43John Ourand:The good news? Someone's marathon training is about to start. Sell your workout gear on Depop. Just snap a few photos and we'll take care of the rest. They get their race day fit, and you get a payout for trying.
40:58Eriq Gardner:Someone on Depop wants what you've got. Start selling now. Depop, where taste recognizes taste.
41:09Eriq Gardner:All right, two questions. First is, why on earth is NFL not settling here? There seems to be a lot of peril for the league where they should have just decided, Like, let's just sweep this on the rug and settle as best we can.
41:26John Ourand:Yeah, I mean, it's a good question. I think that they've dug their heels in so much. And maybe there's such a big divide because we're talking about the potential of collecting billions of dollars if you're on the plaintiff's side versus the possibility of collecting none. On the other hand, there's the NFL's whole business model. So, I mean, they're taking a risk by moving forward, but at the moment they're ahead in this game. You know, as I pointed out in a conversation that we had a few months ago, the NFL actually wasn't the only league to be sued over streaming packages and out-of-market packages.
42:13John Ourand:the Major League Baseball and the National Hockey League were faced with very similar lawsuits, but they settled early on in their cases and they gave small price breaks to consumers. And maybe the NFL should have done something similar, but they didn't. They decided to move forward and to be stubborn about it. And I don't know whether they thought that the SBA would protect them or whether, you know, the plaintiffs would back off once they realized that there wasn't going to be a settlement. But that didn't happen. And this case has just gone on and on and on. And, you know, we'll see what happens from here.
42:56John Ourand:We'll see if the Ninth Circuit reverses and reinstates this, you know, does the NFL push this to the Supreme Court? Do they try to settle it? Everything's on the table right now. And so help me out here.
43:11Eriq Gardner:Let's say the NFL goes to the Supreme Court and it loses. What is the worst case scenario for the league here? What does this look like?
43:23John Ourand:the worst case scenario for the league is you know not only um is is the sunday ticket uh package challenged and that there's an injunction on their deal uh with youtube tv where where it has to be renegotiated where all all the teams are separately negotiating streaming deals for for the out-of-market games but we start seeing follow-up lawsuits again and you know over the the netflix christmas day deal over there over the amazon thursday uh night deal uh we start seeing uh other leagues challenged for their own streaming deals and we see you know uh you know basically a flood of lawsuits that challenge the way that these leagues pool rights together and and sell packages and
44:10Eriq Gardner:basically but though it would it would do do away with sunday ticket right what would what would the NFL then do with these out-of-market rights?
44:18John Ourand:I mean, it really depends on the remedy that comes from it. But I imagine that worst case scenario, that there's an injunction in place and so that the NFL can't make the Sunday ticket deal. And so, yeah, that would kind of blow up that system and there would have to be a new system that comes out. Maybe each division in in the NFL would sell packages. So we'd have the NFC West doing a deal with Netflix and we'd have the NFC South doing a deal with Amazon. I mean, it's possible. I mean, we'll see. We could have an explosion of rights on the market. There might not just be one, you know, right now there's one telecast for each game, but it's possible since there are two teams that are playing that there could be, you know, two telecasts for every game.
45:17John Ourand:And so a game between the Dallas Cowboys and the Los Angeles Rams, each team is, you know, producing or licensing their own game. There's all sorts of scenarios at play here. That's great.
45:31Eriq Gardner:For what you and I do for a living, chaos is great. So we're not rooting for anything, but I'm kind of rooting for that. That'd be a lot of fun to do. Eric, I can't thank you enough for joining this week. It's great working with you at Puck, and I will see you in the Slack. Absolutely. I tell you, Eric Gardner is the smartest legal mind that I know. I learned so much just from talking to him on that. That's exactly what our Slacks look like and what our conversations sound like throughout the year. So I want to thank Eric Gardner for joining the pod this week. More importantly, though, I want to thank you for listening to The Varsity, an Odyssey podcast in partnership with Puck.
46:10Eriq Gardner:I also want to acknowledge the executive editors at Puck. That's Gobby Grossman, Ben Landy, John Kelly, the great Bob Tabador from Odyssey, and our partners at Ness and Greg Poth and Matt Colpitz. If you like this podcast, make sure to sign up for my newsletter. It's also called The Varsity. Head over to puck.news and use the code word The Varsity, all one word, for a 20 % discount. And I will see you on Wednesday.
46:39John Ourand:Ryan Reynolds here for Mint Mobile. I don't know if you knew this, but anyone can get the same premium wireless for$15 a month plan that I've been enjoying. It's not just for celebrities. So do like I did and have one of your assistant's assistants switch you to Mint Mobile today. I'm told it's super easy to do at mintmobile.com slash switch.
46:58Eriq Gardner:Upfront payment of$45 for three month plan equivalent to$15 per month required. Intro rate first three months only, then full price plan options available. Taxes and fees extra. See full terms at mintmobile.com.
From the publisher
Puck legal guru Eriq Gardner joins John Ourand to explain how Capitol Hill and a veritable army of lawyers are reshaping college athletics: the fight over the Sports Broadcasting Act, the usual NIL mishegas, the Sunday Ticket time bomb, and much more.
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