The Penalty Is Declined: The NFL’s Exclusive Streaming Agreements and the Limits of Antitrust Law

By WILLIAM HOLT. Full Text.

The National Football League’s (NFL) decision to grant NBCUniversal’s Peacock streaming service exclusive rights to carry the 2023–24 wild-card matchup between the Kansas City Chiefs and the Miami Dolphins signaled a major shift in the league’s media distribution strategy. Football fans that had long depended on free, over-the-air broadcasts for the most pivotal games of the year suddenly discovered that they had to subscribe to, and pay for, a streaming service they otherwise did not want or need.

The migration of live sports programming away from conventional broadcast networks touches on more than subscription fatigue and rising credit card statements. The advertising dollars generated by high-profile NFL games are critical to the over-the-air broadcasters that provide essential public interest programming such as local news, weather updates, and emergency alerts.

This Note analyzes the NFL’s exclusive streaming agreements through the lens of federal antitrust law. It argues that these agreements would probably survive a challenge under section 1 of the Sherman Act. First, the Sports Broadcasting Act’s antitrust exemption for “sponsored telecasting” likely encompasses streaming services. Second, the U.S. Supreme Court’s 2010 decision in American Needle, Inc. v. National Football League suggests that the NFL’s exclusive streaming agreements would withstand a rule of reason analysis. Finally, the common-law ancillary restraints doctrine provides yet another basis for a court to uphold these agreements.

Given the probable success of the NFL in the event of a challenge brought under section 1, this Note proposes that Congress amend the Sports Broadcasting Act to effectively codify the league’s longtime distribution strategy of providing free, over-the-air broadcasts of the games that matter most to fans and broadcasters alike.