Simone Del Rosario:

What’s the cost of the NFL Sunday Ticket in 2024? Well, for the league it’s nearly $4.8 billion.

That’s how much a federal jury in California awarded plaintiffs in a class-action antitrust lawsuit over how the league handled out-of-market broadcasts as part of the package.

The verdict stems from a 2015 complaint from the Mucky Duck, a California sports bar that claimed the league violated antitrust laws by bundling all out-of-market games together, making it impossible to buy a package that featured just one team.

For instance, say you’re a lonely Los Angeles Chargers fan in the heart of Ohio. You might get the Cincinnati Bengals or Cleveland Browns games on your local Fox or CBS affiliate … But you would have to buy Sunday Ticket to get access to the whole slate of NFL just to watch your beloved Bolts.

Getting down to the nuts and bolts of the damages: Of the $4.8 billion, $4.7 billion goes to residential subscribers, while nearly $100 million goes to commercial users like the Mucky Duck. Under federal antitrust laws, those sums could be tripled to more than $14 billion if the judgment is upheld. That works out to around $450 million per team.

The league has promised to appeal the decision, and this case could end up before the Supreme Court. Even the federal judge in question didn’t like the way this case went.

Joining me now to discuss is Nelly, Drew director of the University of Buffalo Center for the Advancement of sport, and Professor of Practice in sports law. Nelly, we are about to enter a lengthy appeals process, so let’s figure this out. What does this mean for fans out there who might think that this ruling could give them better access to their favorite teams games right away?

Nellie Drew: Oh, that’s not going to happen this season. The NFL is already committed to an appeal. It will no doubt be a lengthy one. There is a possibility for certain post-trial motions, so we’ll have to see those go. But the challenge always with antitrust cases is that they are so complex, and as we know, litigation doesn’t exactly move at lightning speed, anyhow, so this is going to take a while to be parsed out.

Simone Del Rosario: This was a jury trial, but the federal judge in this case did not love where the plaintiffs were going during their arguments. I have a quote that I use specifically because of one word in it, so I think you probably already know which one I’m going for here. He said the case has turned into 25 hours of depositions and gobbledygook. This case has gone in a direction it shouldn’t have gone. Could the federal judge throw out the verdict and side with the NFL?

Nellie Drew: Oh, I suppose it’s possible. There’ll probably be a motion to overturn the verdict for sure. What does that mean as a practical matter? Well, took the jury. What was it less than three hours to come to this conclusion. That’s a pretty significant statement. It’s not like they were on the on the edge of not going the other way. I am actually amazed that we went as far as we did. My colleague, Christine Bartholomew, who’s an antitrust expert has mentioned the fact that it’s rare for antitrust cases to go all the way to trial and for this one to have completed, it’s just mind boggling to me, absolutely mind boggling.

Simone Del Rosario: What does this mean for the nfl’s antitrust exemption? They argue that this falls under it that allows the league to package games and sell them to networks. The plaintiffs were arguing that it only applies to over the air broadcast. Pay TV, like satellite. I’m so curious. It’s a new world we’re living in. So what does that mean?

Nellie Drew: So, this is not new law. So the sports broadcasting exemption goes back to Richard Dixon wine to watch the, then Washington Redskins on TV, quite honestly. I mean, that’s how old this is and and the sports broadcasting exemption Act specifically was drawn for over the air broadcasts, and that was emphasized very heavily. And you also have to remember that as a matter of practice, the courts construe any exemptions to the antitrust laws extraordinarily narrowly. The idea is that the antitrust framework is supposed to be inclusive, as much as possible, and any exemptions are supposed to be very, very narrow and very, very specific, which is what the sports broadcasting act is. And if you review the legislative history of the sports broadcasting act, that is very, very clear. So I was quite honestly, very surprised to see the NFL take that position, although I guess there’s not much else I could possibly say well,

Simone Del Rosario: And it’s assuming that that’s just going to continue in a different form. What do we do now with that, given how the like television streaming, what this all looks like. It’s so different than it was in the 60s?

Nellie Drew: it’s a very different context, since Richard Nixon’s days, right? But, but having said that, the underlying point is access and so I’m not much of an NFL fan you are, but the complaint I heard for a number of people over the course of the past year is, it’s gotten to a point where you have to own multiple platforms be able to follow your team. And so it’s almost going the other way. And and part of me also wonders, just as a practical matter, when is the NFL going to realize that the lifeblood of the league, and the source of all its revenue is the fans. So if the fans aren’t able to consume the product they want to consume, eventually they’re going to go like, ‘maybe soccer is better’, right?

Simone Del Rosario: Is this going to have an effect on cable companies that rely on bundled packages?

Nellie Drew: Yes, although how that’s going to play out remains to be seen. It depends upon what the ultimate outcome of this is, right? And was interesting, too. As you may have read that, you know, the NFL tried to posit this as a premium subscription, right? This is only for a very small portion of our fan base, when in reality given the society we live in now… I’ve got seven kids, half of them are out of the area and adore the Buffalo Bills, but they can’t watch them on a regular basis under the current construct, right?

Simone Del Rosario: Let me ask you this. Then, did the NFL mess up in its arguments? You know, on the stand? Goodell called it a supplemental package for the biggest fans, just like you said. But the NFL Sunday Ticket they they pitched it basically as this place to watch your favorite teams. Did they mess up and how it was all communicated for the past couple of decades? Really

Nellie Drew: well. I think the challenge for the NFL council was that the advertising messaging, was one thing, and then they had to try to spin it a different way when they got into court. And antitrust counsel, which is always there in league meetings because almost everything the league does, has potentially some antitrust implications. We know now, in the wake of the Supreme Court case some years ago, that for sure, when each of the teams in the league discusses anything with any other team. You have the potential for Section One Sherman Act violation, because you have two potential competitors collaborating. Now, some of this collaboration is necessary for the league to function that’s been recognized by the courts, right? You know, somebody has to set the schedule, somebody has to agree upon what the rules are going to be, what the new kickoff rule is going to be, for example, right? That type of collaboration is generally speaking allowed under the antitrust laws. It’s when you’d use that position, and combine that with sort of monopoly, if you will, that the NFL has over its product to extract unreasonable profits. That’s when you start running into trouble. And the key here was that consumer choice was definitely being constrained by this artificial construct.

Simone Del Rosario: Let’s talk about consumer choice. I know this isn’t really a legal question. It’s definitely more of a business question. But do you think if the NFL were to pitch this product by individual teams, I get to pay for just the Chargers. I get to watch every chargers game from wherever in the country I am. Don’t you think that would be a very, very popular product.

Nellie Drew: It is. But the challenge then is, what does that do to the broadcast partners? And that’s their bread and butter they’re trying to protect there, right? I mean they have this… It’s greed, right? They wanted to use the Sunday Ticket to extract an extra little bit, but in the process, they know that they have to protect their broadcast partners. Because, you know, my kids in Boston aren’t watching the Patriots. They’re watching the bills, if they can get them right? And so that’s the challenge.

Simone Del Rosario: All right. Thank you so much. Nelly Drew, professor of practice and sports law, really appreciate your insight on this. I know a lot of football fans are watching this one.

Nellie Drew: We are. Thank you so much.

[lauren taylor]

THE SUPREME COURT GAVE WESTERN STATES THE GREEN LIGHT FRIDAY TO BAN HOMELESS ENCAMPMENTS ON SIDEWALKS AND PUBLIC CAMPING. IT’S ONE OF THE MOST SIGNIFICANT HOMELESSNESS DECISIONS IN DECADES.

THE RULING IN GRANTS PASS V JOHNSON OVERTURNS A NINTH CIRCUIT DECISION BLOCKING CITIES FROM ENFORCING PENALTIES ON THE HOMELESS. THOSE INCLUDE FINES FOR FIRST-TIME OFFENDERS, BANS ON REPEAT OFFENDERS FROM PUBLIC PARKS, AND JAILING PERSISTENT VIOLATORS FOR UP TO 30 DAYS.

THE APPEALS COURT CALLING THE LAWS A FORM OF CRUEL AND UNUSUAL PUNISHMENT.

THE HIGH COURT OVERTURNED THAT RULING, SAYING ENFORCING ANTI-CAMPING LAWS DOESN’T VIOLATE THE EIGHTH AMENDMENT
THIS RULING COMES AT A TIME WHEN MANY U.S. CITIES ARE FACING INCREASED HOMELESSNESS DUE IN PART TO HIGH HOUSING COSTS AND THE END OF COVID-19 AID PROGRAMS.

MANY STATE AND LOCAL LEADERS SEE THESE BANS AS ESSENTIAL FOR PUBLIC HEALTH AND SAFETY, BUT CRITICS ARGUE THEY CRIMINALIZE HOMELESSNESS.

A PAIR OF LEADING CALIFORNIA DEMOCRATS — GOV. GAVIN NEWSOM AND SAN FRANCISCO MAYOR LONDON BREED — HAVE BEEN SOME OF THE LOUDEST VOICES URGING THE SUPREME COURT TO TAKE THE ACTION IT DID.

LONDON BREED
MAYOR OF SAN FRANCISCO
“The homeless coalition has held San Francisco hostage for decades. It is time for their reign to end. Let me be clear, this city leads with compassion. We invest billions of dollars to help people who are homeless. Since 2018 we have helped 10,000 people exit homelessness.”

GOV. GAVIN NEWSOM
D-CA
[57:43]
“Needles strewn everywhere, feces everywhere no compassion no compassion whatsoever leaving people in those conditions when we had an alternative but the judge was saying you can’t use that alternative because of this Court ruling so uh it’s very frustrating uh this is uh to me just about common sense not about ideology.”

[lauren taylor]

JUSTICE NEIL GORSUCH, WRITING FOR THE CONSERVATIVE MAJORITY, ARGUED THAT THE EIGHTH AMENDMENT FOCUSES ON THE TYPE OF PUNISHMENT AFTER A CRIMINAL CONVICTION, NOT ON CRIMINALIZING CERTAIN BEHAVIORS. HE EMPHASIZED THAT ENFORCING PUBLIC CAMPING BANS IS A MATTER FOR LOCAL GOVERNMENTS AND NOT FEDERAL COURTS.

IN DISSENT, JUSTICE SONIA SOTOMAYOR, JOINED BY FELLOW LIBERAL JUSTICES ELENA KAGAN AND KETANJI BROWN JACKSON, ARGUED THAT THE RULING UNDERMINES PROTECTIONS FOR HOMELESS INDIVIDUALS. SHE STRESSED THAT THE DECISION DISREGARDS THE REALITIES OF HOMELESSNESS AND THE COMPLEX REASONS PEOPLE REFUSE SHELTER.

I’M LAUREN TAYLOR

FOR MORE UNBIASED, STRAIGHT FACTS DOWNLOAD THE STRAIGHT ARROW NEWS APP OR VISIT US AT SAN – DOT – COM.

[LAUREN TAYLOR]

CALIFORNIA IS SET TO LAUNCH THE NATION’S LARGEST GOVERNMENT-FUNDED REPARATIONS EFFORT OF ITS KIND.

ALLOCATING $12 MILLION FROM ITS NEXT BUDGET FOR BLACK RESIDENTS. CITING DECADES OF RACIAL INJUSTICE.

IT’S A FAR CRY FROM THE BILLIONS OF DOLLARS A TASK FORCE RECOMMENDED EARLIER THIS YEAR.  BUT CONSIDERING THE STATE’S 50 BILLION DOLLAR BUDGET SHORT-FALL– ADVOCATES SAID THEY’RE PLEASED *ANY* MONEY GOT ALLOCATED.

MOVEMENTS TO COMPENSATE BLACK PEOPLE FOR THE WOUNDS OF SLAVERY AND SEGREGATION GAINED NEW STEAM FOLLOWING THE 2020 DEATH OF GEORGE FLOYD AND THE ENSUING PROTESTS.

NOW CITIES AND STATES ARE TAKING ACTION.

DC’S 2025 BUDGET PROPOSAL INCLUDES ONE-POINT-FIVE-MILLION DOLLARS TO STUDY THE FEASIBILITY OF REPARATIONS.

BUT SOME EFFORTS HAVE HIT ROADBLOCKS.

IN LATE MAY, A CONSERVATIVE ADVOCACY GROUP SUED TO STOP THE COUNTRY’S FIRST EVER GOVERNMENT-FUNDED REPARATIONS PROGRAM IN EVANSTON, ILLINOIS.

ARGUING THE EFFORT DISCRIMINATES AGAINST OTHER ETHNICITIES.

AROUND FIVE MILLION DOLLARS FROM THE PROGRAM HAS ALREADY BEEN PAID OUT TO NEARLY 200 PEOPLE.

THIS MONTH, THE OKLAHOMA SUPREME COURT STRUCK DOWN A LAWSUIT SEEKING REPARATIONS FOR THE LAST TWO SURVIVORS OF THE 1921 TULSA RACE MASSACRE.

CALIFORNIA’S EFFORT STILL FACES OPPOSITION FROM REPUBLICANS AS WELL AS SOME ASIAN AND LATINO LAWMAKERS WHO SAY IT’S UNFAIR TO MAKE CURRENT RESIDENTS PAY FOR THE WRONGS OF THE PAST. 

THE STATE BUDGET DOESN’T OUTLINE HOW THE REPARATIONS WILL BE PAID OUT BUT STATE LAWMAKERS SAY IT WILL BE WORKED INTO REPARATIONS-RELATED BILLS.

FOR MORE STORIES LIKE THIS ONE– AND WHAT’S HAPPENING AROUND THE WORLD– DOWNLOAD THE STRAIGHT ARROW NEWS APP AND SIGN UP FOR NEWS UPDATES.

Simone Del Rosario:

The Supreme Court has just overturned 40 years of legal precedent, nullifying the most cited Supreme Court administrative law decision of all time. 

I’m talking about the Chevron doctrine, which has been in place since 1984. This week’s ruling confirms critics’ view that Chevron gave government agencies too much power in interpreting laws passed by Congress. 

The Chevron doctrine said that when a law is open to interpretation; when the intent of Congress in passing that law is unclear; when the statute is ambiguous; courts should defer to the agency’s interpretation of that law, as long as it’s sensible. 

In overruling Chevron, Chief Justice John Roberts wrote: “Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.”

The case that led SCOTUS to overturn Chevron is Loper Bright Enterprises v. Raimondo, as in Gina Raimondo, the Commerce Department Secretary. Loper Bright Enterprises is a commercial fishing company. 

There’s a law that says the National Marine Fisheries Service can require fishing companies to allow federal agents on board as observers. But the agency also interpreted that statute to mean it could require the fishing companies to pay for the salaries of those federal observers. Loper fought that assumption all the way to the Supreme Court. 

In a concurring opinion, Justice Neil Gorsuch wrote, “Today, the Court places a tombstone on Chevron no one can miss.”

In her dissent, Justice Elena Kagan wrote, “Given Chevron’s pervasiveness, the decision to do so is likely to produce large-scale disruption. All that backs today’s decision is the majority’s belief that Chevron was wrong—that it gave agencies too much power and courts not enough.”

I want to bring in Caroline Cecot, Associate Professor of Law at Antonin Scalia Law School at George Mason University. Caroline, thank you for joining us right after this decision came down. I wanted to just first get your initial reaction to the impact of this decision.

Caroline Cecot: Great to be here. And my first reaction was, wow, they actually did this. I mean, this could turn out to be a big deal, especially in its practical implementation. And I guess another small reaction I had is, you know, how little the majority opinion authored by Chief Justice Roberts really thought about that practical, the practical implications of this or seem to downplay them.

Simone Del Rosario: All right, let’s expand on that a little bit more. What do you mean by that?

Caroline Cecot: Well, you know, one thing that I do a lot of research in is in the environmental space and in the energy space. And a lot of those statutes are very complex. They deal with a lot of issues of expertise, issues of trade-offs between competing interests. And when we look in those cases, you look at these statutory interpretation questions, they’re really fraught with intersecting expertise and political policy preferences that can change in different administrations, et cetera. The Chevron case is a perfect example of this, actually. In the Chevron case, this was the EPA under President Reagan adopting a more flexible interpretation of when a source would trigger more stringent standards. And the court had to sort out whether this interpretation was authorized by the statute. But the statute just wasn’t clear about how to answer that question. It talked broadly, obviously, about the importance of environmental protection, pollution reduction, but then it also talked about economic growth and how it’s important to think about those issues. So how should the court figure this out? Its options basically were make some decision on the question despite not having any expertise on the subject matter, the statute, or the appropriate balancing of these competing interests or any political accountability for its decision or allow the agency to make this choice as long as it’s within these reasonable bounds. And the court went with option two, and that’s essentially the Chevron decision on what to do in these kinds of cases. And meanwhile, in this case, I mean, in Loper -Brite, Chief Justice Roberts talked about statutory interpretation much more abstractly or simplistically and didn’t really grapple with these kinds of issues. The dissent, which was authored by Justice Kagan, offers numerous examples about how statutes implicate these kinds of expertise and policy choices.

Simone Del Rosario: The majority explicitly stated that any interpretations made to this point under Chevron’s stance. So we’re not going to see this huge 40 -year unraveling of case law, basically. But what do you envision happens next when agencies and businesses are navigating through largely vague statutes that they operate under?

Caroline Cecot: Right. So the majority’s answer essentially is that without Chevron, we go back to a time where the background rule on how a court deals with this is something referred to as Skidmore, Skidmore deference or Skidmore respect. And Skidmore, I’ll call it Skidmore deference, basically says that you kind of give the agency’s interpretation the respect it deserves based on how thoroughly reasoned it was. this is a very difficult concept to wrap one’s mind around. I teach administrative law and this is something we talk a lot about our students and I, you know, what are the difference? How would this be decided under Skidmore? You know, and not to just a few years ago when the court was deciding a case. Kaiser v. Wilkie, which was about a related concept about whether to defer to an agency’s interpretation of its own regulation, so different, not a statute, at oral argument, the chief justice had this funny remark that I actually play for students, which is, counsel, to get back to the stare decisis questions, I think the issue depends, at least in part, on how much of a change you’re asking. And one of the things I have trouble getting my arms around is if you start with our and recognizing the limitations on our that have accumulated over the years and you’re changing that to skidmore, which I find hard to get my hands around too. I think I know more about what a moiety is than I know what skidmore deference is. And so if the chief justice, you know, made this joke during oral arguments about how difficult it would be to apply skidmore, I, you know, I’m glad we’re not looking back, but looking at the future, I think this is going to lead to a lot of inconsistency and a lot of litigation. And probably, and I hate to say this, but this is based on some research by Ken Barnett, Christopher Walker, and Christina Boyd. We’re going to see more decisions that are influenced by the makeup of the panel, whether it’s a more liberal panel or more conservative panel.

Simone Del Rosario: How much of this is on Congress for writing these ambiguous laws to begin with? Do you think that Chevron has allowed them to put too much legislative authority on agencies?

Caroline Cecot: So some research has shown that Congress is aware of Chevron. So it is possible that in some ways they leave some ambiguities purposely because they want agencies to fill in these gaps using their expertise, which I would find perfectly appropriate within the bounds of constitutionally correct delegations. That said, now that there is no Chevron and Congress has to write statutes, I guess I’m in the camp where, and I don’t say this to degrade Congress in any way, I think it’s just impossible to write a perfect statute that includes everything at the outset. I think there’s something that happens with experience under a statute where agencies realize that something’s not working or the facts on the ground change. That’s something I care a lot about. And the agency has to respond to these changing facts on the ground. The whole scheme of administrative implementation of statutes is partly because we get some efficiency benefits from this. If we revert back to Congress has to do everything at the outset, we’re gonna see a lot of increases in inefficient regulatory actions, I think across the board.

Simone Del Rosario: But in the same vein, critics of Chevron have said that this precedent to this point has allowed these agencies far too much authority and deference to just say, this is how they interpret it, so that must be the way that it is, and kind of takes the issue away from courts, takes the issue away from Congress when the majority clearly believes that that subject does belong in the courts.

Caroline Cecot: It doesn’t take the issue away from the people though, because at least as compared to courts, agencies are more politically responsible and we see changing for presidential administrations all the time. I mean, and I say, I don’t mean this, I say this because, you know, Chevron, the doctrine of Chevron itself to give deference to agency interpretations, it’s neutral. And then the Chevron case itself, as you know, as I recounted, this was an agency that wanted to take a deregulatory action. But of course, Chevron could also allow an agency to take more aggressive agency action. Over time, the doctrine became associated with judicial acquiescence to these ever increasing grabs of power by the agency, or that’s how it’s sort of thought about, which started this anti -Chevron movement that even led to this question of whether to overrule it. But I think at its core, Chevron is just saying, look, here we have a statute that the agency has to that Congress wants the agency to implement given what’s happening on the ground. And here’s the way that the agency has decided to do this. Is it reasonable? If it’s not, then no. And obviously, I almost forgot the first step. If it goes against Congress’s language, that’s out. Congress is supreme. The agency has to do what Congress allows it to. But at the point that there’s not a clear answer and it’s a reasonable interpretation. I mean, I think it should go to the agency. And if the people disagree with this, you get a new, you have an election, you have a new presidency, you have a new administration, and then you have new ways of interpreting the statute. I mean, I don’t mean to also defend this process too much because I’m someone who I think it’s important to have predictability. So I say this as someone who knows that there’s another backstop, which is this other doctrine, State Farm, which ensures that agency decision-making is fact-based, that there’s logical connections. So, you know, even though there might be some policy reversals in the presidencies, it always requires some explanation. To me, this felt, to this point, this felt like a nice balance, making sure that courts aren’t making decisions that are actually politically motivated, but unaccountable, that leave Congress in sort of an impossible position and leave us in an inefficiency spiral, but also, you know, cabined because of this reasonableness inquiry.

Simone Del Rosario: Do you think that the National Marine Fisheries Service overstepped their bounds by saying that fishing companies had to pay for these federal observers?

Caroline Cecot: You know, that’s a tough one for me to answer because I think most people, most folks that I’ve talked to seem to think that even if there were not a world of Chevron, that the answer is that the marine fisheries overstepped in some way. When I looked at the history behind the statute itself, this is the Magnuson Stevens Act, that amendment that created this kind of situation where these councils are allowed to require observers on domestic vessels, but then also there’s a separate provision for one of the Pacific fisheries to be able to spread some of these costs in specific ways with some limits. I mean, that amendment happened because that fishery was the first, that council was the first pre that amendment to want to impose these costs. And, you know, during the deliberations on this, the industry protested in some ways of bearing the costs and wanted taxpayers to bear the costs. And the council had said, go to Congress with that, go to Congress with that, beg them for it, but we’re going to impose this on you because we need to save the fishery. And so to me, the more clear answer here is that The default is that the industry pays and if they don’t want to pay, they can lobby Congress and get their own provision, which is I think what happened with the Pacific fisheries where they got a provision that talked a little bit more about capping these fees.

Simone Del Rosario: As Gorsuch said, the court today placed a tombstone on Chevron. So regardless of how helpful you found it to be as far as keeping things more stable in this system between agencies and courts and businesses, it’s effectively gone. Who’s the big winner today?

Caroline Cecot: The big winner, well, definitely lawyers. Because what I said about, you know, skid more deference, being hard to wrap yourself around. I mean, I think this is going to trigger more litigation over agency action now on, you know, robust litigation on both the fact -based front with State Farm and the legal interpretation front with now skid more deference. Other than that, I mean, because I have a different view of Chevron, I didn’t see it as anti -regulatory or pro -regulatory. I think a loser in this in some ways is each presidential term, they’re going to have to grapple with a lot less flexibility in their statutes and a lot less ability to respond to emerging issues on the ground. without having to go to Congress. And then Congress is gonna be, they’re gonna have to change some things because as pessimistic as I was in my first recount, I mean, they do have to step up at this point in some ways, and at least responding to big emergencies that come up, they will need to, and that’s already been true in some ways with the major questions doctrine, but they will need to do a lot more, schedule a lot more time for legislation.

Simone Del Rosario: Yeah, Congress, do your job. Caroline Cecot, Associate Professor of Law at Antonin Scalia Law School at George Mason University. Thank you so much for your thoughts today as we just got this ruling down.

Caroline Cecot: Thank you, Simone.