May 26, 2026
On May 26, The Capitol Forum held a conference call with Katie Van Dyck, senior legal fellow at the American Economic Liberties Project, to discuss her recent article, “How an Obscure Law Lets Sports Leagues Rob Fans Blind.” The full transcript, which has been modified slightly for accuracy, can be found below.
TEDDY DOWNEY: Hello, everyone, and welcome. I’m Teddy Downey, Executive Editor here at The Capitol Forum. Today, I’m very pleased to be joined by Katie Van Dyck, Senior Legal Fellow at the American Economic Liberties Project, longtime friend of The Capitol Forum.
She recently wrote the article, “How an Obscure Law Let Sports Leagues Rob Fans Blind,” which examines how the Sports Broadcasting Act of 1961 helped shape today’s fragmented and increasingly expensive sports media ecosystem. Katie, thanks so much for doing this today.
KATIE VAN DYCK: Thanks for having me. I’m excited to be here.
TEDDY DOWNEY: We already have a couple of questions from our listeners. But if you have additional questions, please put them in the chat or in the Q&A thing here and we’ll get to them later in the discussion. To start us off, Katie, I think it would be great if you could walk us through the original purpose of the Sports Broadcasting Act of 1961. What was Congress doing with that law and why did it come about?
KATIE VAN DYCK: So, in the 1950s and 60s, the NFL and the AFL, which used to be separate football leagues, were engaged in pretty hot competition for fans. The NFL was subject to these consent decrees because the Department of Justice had sued it for violating antitrust laws because of the way it was negotiating television contracts with the networks. It had all these blackout rules. It had forced all the teams to completely sign over their rights and seek control over when their games would be broadcast and how. And the DOJ got a court to say you can’t do that anymore.
So, the NFL goes to Congress and says, we can’t exist like this. We need to be able to pool all our media rights together, meaning taking all the team’s media rights and putting them in one bucket, and the NFL has sole control to negotiate how those media rights are distributed and when games are aired. We can enforce blackout rules. So, the NFL, for a long time, had a blackout rule that said if a game isn’t sold out, you can’t air it in a local market. And we have to do this because, otherwise, our smaller market teams like Green Bay aren’t going to make enough money compared to big market teams like the Giants in New York. And Congress shoved this thing through, and they did it based on a couple of concepts.
The most important one for what we’re talking about today is Pete Rozelle, at multiple hearings, told multiple members of Congress, this will only apply to free over-the-air broadcasts. It’s not going to apply to any sort of paid television, which was a very new concept at the time. There had been like one or two, I think, boxing matches aired over some sort of new pay-per-view technology. And Congress said, Okay.
And so, for a long time, that meant that the NFL got to pull its rights and negotiate how they were broadcast and distributed amongst like CBS and NBC and ABC. But the rise of cable changed that. Games moving over to ESPN was a huge controversy when that first started to happen, I think in the like early 90s. I remember my grandfather complaining that he couldn’t watch the Cowboys anymore on Sundays or something like that. And then now we all have—if you’re a sports fan—the nightmare of streaming that has fragmented sports broadcasting all over the place. So that you need thousands of dollars of subscriptions to watch your favorite sport or your favorite team.
TEDDY DOWNEY: And so, there’s a couple of things going on here. This law that came into place when there were no cable networks, it was all over the air distribution for free in exchange for ad revenue, right?
KATIE VAN DYCK: Yeah.
TEDDY DOWNEY: So, maybe walk us through a little bit about how the market has evolved. Because it seems like the NFL is in focus because it really does pool all those resources to negotiate rights for their games. All their games effectively seem at least to have some national significance. So, there’s national distribution in the NBA and the major leagues. There are longer seasons. They seem to be negotiating a lot of those deals locally, teambyteam still, as opposed to pooling their resources. Is that the proper way to look at this? Is the NFL in focus, in part, because they do the most of this pooling of their resources for their rights?
KATIE VAN DYCK: Yeah, I think that that’s fair. I think that that’s absolutely right. I mean, if you think about—I just mentioned the Green Bay Packers before. Maybe the Green Bay Packers were a team with a pretty local audience in 1961. The Green Bay Packers today are a huge brand that is watched nationwide. It’s no longer something that just people in Wisconsin are tuning into. And so, and football continues to be extraordinarily popular in the United States, I think, and continues to grow and grow and grow.
And so, what that means is the NFL has the ability to negotiate these contracts with the networks that are enormous. Amazon pays, I think it’s something like a billion dollars just to air Thursday night football. That’s one game a week. CBS’s package is over $2 billion. Google’s contract to air Sunday ticket on YouTube TV is over $2 billion. Netflix is hundreds of millions of dollars for five games total in a season. ESPN is $2.7 for Monday Night Football. And that really shows you like this is a huge national audience as opposed to, as you said, the sports with longer seasons that really rely more on like regional sports networks and things like that, particularly with baseball and hockey.
TEDDY DOWNEY: And so, if we’re going by the strict interpretation of this Sports Broadcasting Act of 1961—which I think in your paper you point out has been reaffirmed in circuit court decisions. Are all of these agreements illegal? Like, if you’re a state AG right now, could you just bring an antitrust case against each of these pooled rights where they’re where the intention is to deliver it for pay TV, not for over the air? And could you win all of those?
KATIE VAN DYCK: I think you would have a really strong argument for some of them, particularly I would say like Netflix. Netflix now has exclusive control over broadcast of games on Christmas Day and Thanksgiving Day, which are traditionally huge days to watch football for Americans. Tuning into a football game on Thanksgiving is a classic tradition for a lot of families. And they now have the rights to the big Thanksgiving Day game.
And that’s not just me speculating legally. A plaintiff filed a class action against the NFL, and won largely, to challenge it’s the monopoly over NFL Sunday ticket. And a jury agreed with them that the NFL Sunday ticket was anti-competitive. It violates the Sherman Act. And they awarded $2.4 billion before trebling.
Now, that case is still making its way through the courts. The judge granted this postverdict motion that threw out the verdict over a dispute over the experts that was really controversial. And we’re waiting to see what the Ninth Circuit’s going to do with that. But the concept that that NFL Sunday ticket broadcasting agreement is anticompetitive, I think, is still pretty strong to use to argue against, for instance, the Netflix contract.
TEDDY DOWNEY: Why does the Netflix contract stand out to you as a particularly good antitrust case?
KATIE VAN DYCK: To me, it stands out because it has this like very particular set of games that people want to watch. It’s not based on any sort of like local markets that we were talking about. It’s not over the air. So, we know it’s not covered by the Sports Broadcasting Act.
So, to me, that kind of control of this like very particular set of games that are going to be broadcast nationally and aren’t just like one local game on a Sunday when there are 30 other games on is, I think, a significant fact.
TEDDY DOWNEY: Got it. So, potentially, it’s easier to bring these cases when you don’t have other games competing with it. You have total control over what’s going on that day.
KATIE VAN DYCK: Yes.
TEDDY DOWNEY: So, the ESPN Monday Night also seems like it should be good.
KATIE VAN DYCK: Right.
TEDDY DOWNEY: If they’re not also distributing it over ABC for free or what have you.
KATIE VAN DYCK: Yeah, and I think—correct me if I’m wrong—but I think that the NFL has started airing a lot of those—at least for next season. I know I checked before I got on here—they’re going to be airing a lot of those Monday games simulcast on ABC.
And so, perhaps that’s a recognition that, okay. We’ve got a little bit of a problem here. We have the only football game you can watch on Mondays exclusively on cable. We need to get it on a broadcast network over the air to protect ourselves.
TEDDY DOWNEY: And what about like the NBA playoff rights, things like that? Those seem to have some of the same indicia of what you’re talking about with that Netflix, no competition of other games over the paid network. I was trying to watch the Knicks the other day and I thought it was being streamed, like you said, over ABC, but it wasn’t. It was only on ESPN. Would that also be a good case, potentially?
KATIE VAN DYCK: Potentially. Yeah, potentially. I mean, the fact that the Eastern Conference finals aren’t available on broadcast air is, I think, pretty wild. Every Knicks fan in the country—which is a pretty popular team—has to have either like YouTube TV or some other streaming platform or cable or satellite subscription to watch their favorite team sweep the Eastern Conference finals is pretty astounding from like a fan perspective.
And the NBA also has their NBA league pass, which is pretty similar to Sunday tickets. So, that gets us back to the fact that, like, if you’re putting all of your out of network games on a really expensive subscription that’s only available through Amazon or YouTube TV, what does that mean for our antitrust laws? It raises a lot of questions for fans. It raises a lot of questions for small businesses who are trying to air these games in their bars to bring in customers as well.
TEDDY DOWNEY: You mentioned, oh, I think we talked a little bit about how the DOJ is investigating the NFL. Why do you think all of the sudden attention? You mentioned that it’s just such a nightmare if you want to support your team or watch your team, you have to get a subscription to Paramount, a subscription to Netflix, ESPN, MLB.com, whatever. You have all of these. You need a spreadsheet, as you point out in your piece. Is there a public frustration around this that you think is getting more attention right now?
KATIE VAN DYCK: So, this is a really interesting question. There’s a lot of public frustration. The FCC put out a request for public comment about this. And I think one of the FCC higher ups said that they got like got thousands of comments and 85 percent of them were from angry fans. So, you certainly have consumer outrage over this. People are pissed that they can’t just sit down and turn on the TV and watch a game and maybe flip it the way it used to be able to like flip back and forth between games really easily. You can’t do that anymore.
But the wrinkle in this that’s really interesting is it’s been reported that Robert Murdoch is putting a lot of pressure on the White House and the FCC over this. Because Fox, I think, is losing market share and they want more of these games. They want a bigger piece of the pie. Most of it’s going to ESPN and I think CBS or I guess it’s Disney and Paramount right now. And Robert Murdoch’s not happy about that.
So, you have this sort of like tension where the problem is really impacting fans, but the big broadcasters are not happy about it either.
TEDDY DOWNEY: You mentioned a couple of things here which I found funny. There’s also blackouts where you’re waiting for Disney and Google to fight out contract terms. I mean, you really couldn’t pick two bigger kind of monopolies to be duking it out. Talk a little bit about that. Does that also play a role here in that in the uncertainty around like am I going to be able to watch the game? What is even going on here? Why are Disney and Google determining whether I can watch TV, my favorite sports team? Talk a little bit about the blackout situation.
KATIE VAN DYCK: Yeah. So, the way this works when you’re talking about, you know, NFL owns the broadcast rights, has pulled the broadcast rights and owns them. They negotiate with the broadcasters over who’s going to air those games and how they’re going to be distributed.
ESPN is by far the largest sports media company in the country. They have an extraordinarily large market share in terms of games that are broadcast writ large. ESPN, in turn, then has to negotiate with whoever’s going to air—whoever’s going to like host or have host their channels. I’m definitely using the wrong technology here, so forgive me. So, that means like ESPN is negotiating with Google over how much Google is going to pay them to have ESPN and ABC and ESPN 2, et cetera, on YouTube TV. Same with like charter communications or DIRECTV.
Now, it’s not just ESPN, right? Like YouTube TV or your cable provider have a lot of different channels. They have A&E and TBS and all those. And they pay the media company what’s called an affiliate fee. So, like A&E might cost YouTube a dollar per channel per subscriber. That’s called an affiliate fee. For ESPN, they’re paying a nine dollar affiliate fee, and that’s per subscriber per channel, which is nine times higher than all their other competitors. And so, they get in these fights periodically when their contracts run out. And it means that they have to black out the channel.
So, when Google gets in a fight with Disney over how much they’re going to pay to host the ESPN channels on their platform, they can’t air them once the contract expires. And that means, for instance, last fall, you couldn’t watch Monday Night Football. You couldn’t watch most college football games for the first like two—I think it was like six weeks or something. That was a pretty significant chunk of the college football and NFL season.
TEDDY DOWNEY: You also mentioned in your piece a problem associated with the Paramount Warner Brothers merger. Can you talk a little bit about how consolidation exacerbates these issues that you’re talking about?
KATIE VAN DYCK: Yeah, I think that this is something that’s been really underappreciated when we talk about media consolidation, which is a huge problem overall in the entertainment industry. So, if this Paramount-WB merger goes through, that means that there will be under one corporate umbrella media rights for—I wrote them down because I was like I’m never going to remember this. It’s so many. It’s the NFL, NHL, MLB, March Madness, college football playoffs, PGA, NASCAR, UFC. I think the French Open’s in there somewhere, but it fell off my list, but I’m pretty sure it’s included.
And so, it means one corporate entity is going to have the media rights for all of those things. It will also have the media rights for streaming platform Paramount Plus, media rights for CBS, media rights for, I think, HBO Max falls under there somewhere.
So, that means they’re going to have a huge bucket of media rights and they’re going to take those and they’re going to push them onto their streaming platform so that now you have to have Paramount Plus. You have to have HBO Max. Maybe there’s a third one they’ll come up with. And when I talk about fragmentation, that’s what I mean. I don’t mean fragmentation like, oh, we have all these little competitors competing for your dollar to watch sports. It means we have one entity that is pushing you into multiple subscriptions across multiple platforms.
TEDDY DOWNEY: And what do you think is the result if there isn’t antitrust enforcement here or legislation? Are we going to see what’s happened in the NFL with streamers and just the divvying up of the pie to maximize revenue by the leagues? Do you think that will happen in the NBA and MLB increasingly? They see, oh, this is working. We can make more money this way, particularly for their national market games.
KATIE VAN DYCK: I think so. Because they can’t really—because they’ve sort of priced the average American out of going to their own games live. I mean, going to an NFL game for a family of four is like unachievable for most people.
TEDDY DOWNEY: I looked at getting tickets to the Knicks in the finals and they’re going for $500,000, $250,000 a piece, or what have you. I mean, I saw one listing for $1.5 million for two courtside seats. I think that was even the second row. I mean, this is just lunacy at this point for if you’re attending live.
KATIE VAN DYCK: Yeah, and it’s just this is the way, unfortunately, our economy is going, is that instead of improving the fan experience, they’re just figuring out how they can break it up into pieces to get more money out of your wallet. You don’t just see that in sports. You’re seeing it like now if you buy a car, you have to get a subscription to use everything on like the crazy, distracting television screen over here.
And so, yeah, I absolutely think that they’re going to continue. And then they’ll figure out, within their platform, how to divide it up. So, do you want to watch games on Sunday? So, now you’re going to be paying like I want to watch games on Sunday. I want to watch games on Monday. How do you do that? And that’s also why they are spreading the games throughout the week instead of them just being on Sunday and Monday night.
TEDDY DOWNEY: Besides the DOJ going after the NFL or these deals in particular, maybe the Netflix deal, as you mentioned, what’s the political rationale for like a state AG to get involved here? DOJ, FTC, it’s been pretty laissez faire overall. The sports leagues have been pretty influential in both Congress, but particularly I think the Republican Party, over the years. What do you see as the political reasoning for an AG or a private plaintiff to come and bring a lawsuit here?
KATIE VAN DYCK: I mean, I think politically we know that this is a really important issue. Sports in America really do kind of hold this unique place in our society. People love it. I grew up in Texas. Football’s a second religion there. And it was a big part of my life growing up and in college and in law school, socially with my dad, watching games with my dad, bonding with him over the Cowboys during the Troy Aikman and Smith years.
And so, people really care about this. And the state AGs are really emerging over the last year as one of the most important protectors, I think, of consumer rights and competition in markets in the United States. You saw that with Live Nation, where DOJ settled in challenging the Live Nation Ticketmaster monopoly. And the AG said, no, this isn’t sufficient. And they won at trial and are now asking a court to break up the company.
And people really feel this and they really care about it. I think you’re seeing a society where people are really starting to understand better why things are so expensive and why every single transaction they have is so much more complicated.
TEDDY DOWNEY: Yeah, you also see California and New York putting out more money for their AG. And New York City has looked in a click to cancel rules, which kind of feels like adjacent here. Like, oh, if you’re looking at a subscription, bad behavior, like this is as bad as it gets, I would think, in terms of the dollar amounts involved. And then in California, they’re looking into this Warner Brothers deal. You think they might have some insight into how all of this is panning out in a way that’s not great for the citizenry. Anything, any reaction to that, Katie?
KATIE VAN DYCK: Yeah, I’d say it’s not just the NFL where we’re seeing consolidation of sports broadcasting, right? You see it in college, too. The Big Ten and SEC are now 14 plus teams each. The ACC spans the continent. It’s the Atlantic Coast Conference and it’s got teams on the West Coast. And they’re doing that because they want the media rights. They want the Big Ten that can have football games on Saturday that start at 11:00 a.m. Central Time and they can air them all the way through 1:00 a.m. or midnight. They’re going to have games on all day long because they’ve got games starting on the East Coast and ending on the West Coast. And that gives them extraordinary control over, like, the rules of college sport, but more importantly, the media rights. And they have huge media deals as well that allow them to dictate all of that for us.
TEDDY DOWNEY: Normally, I would say, oh, it’s not worth paying attention to Congress. They’re not going to do anything. But Congress recently has a housing bill—or is soon—in both chambers of Congress, a sort of surprisingly populist, the President agreeing with Elizabeth Warren on provisions in housing policy, sort of a huge coup in many respects to get that bill in shape to pass into law.
We’ve seen Republicans and Democrats come together on railroad legislation recently. Also, shocking, kind of populist, legislation. The President has come out, as you mentioned in your piece here, criticizing the NFL for being too greedy. They could make less money, seemingly sort of siding with Democrats, or sort of creating a potential coalition with Democrats, on coming up with some kind of plan here. Do you see any kind of bipartisan consensus potentially evolving here?
The only flip side of that is we wrote last week that there are some members of Congress putting together a bill to allow college sports to pool their resources to negotiate media contracts. So, in one respect going one way, but here is there potential for bipartisan consensus?
KATIE VAN DYCK: I think there is. And, I mean, Mike Lee has really been a leader on this. He’s really pushing for FCC investigations and exploration of whether the SBA is still serving its purpose or if it’s just enabling fan dollar extraction.
But you’re right. We have these sort of interesting—and they’re both bipartisan efforts. You have proposals from, I think it’s on the college media rights issue that are also bipartisan, trying to sort of make the same arguments the NFL made in 1961 that if colleges can’t pool their media rights, then college sports will fail.
I think there’s a lot of reasons that colleges are suffering financially right now. They’ve been really profligate in their spending. My alma mater, TCU, just built a snow room. It’s the only snow room in North America for athlete rehab where they can go and sit in snow indoors in Texas in the summer. Enrollments are down. Administrative salaries are really bloated. So, the idea that just letting colleges pool media rights is a magic bullet is really questionable.
And then you wonder how that’s going to trickle down to fans. We’ve certainly seen it be harmful, as we’ve been talking about for the last 30 minutes, on the pro-sports side. So, I question whether—I have a lot of concerns about how that’s going to hurt fans on the college sports side.
TEDDY DOWNEY: Let’s move to our listener questions. Again, if you have a list of questions, just put them in the chat or the Q&A feature here. First question, is there any consideration for broadcast quality in these talks? Streaming has introduced issues across all leagues.
KATIE VAN DYCK: Yeah, I think that that’s a great question. And whenever we talk about consolidation, we usually talk first about how it raises prices for consumers. But absolutely, quality is a question. What’s the motivation to put resources into better broadcasts, faster broadcasts, all of those things, when you don’t have to because you own it outright. And there is a lot less motivation for higher quality.
The thing that I think all of us in this pro-enforcement world like to talk about is that once you become a monopolist, when you have control over an entire market or you have just enough control over a market, your incentive is to protect that market share. It’s not to make things better to—it’s not to improve quality to bring in more customers. It’s to hold onto what you have and keep other people out.
TEDDY DOWNEY: Second question here. Will the pressure on the leagues about the SBA disappear once the NFL’s upcoming contract negotiations are complete? I think this dovetails with another question we have here. Where does this end up?
KATIE VAN DYCK: Yeah, I don’t see the pressure ending from fans, at least. Unless suddenly, I guess the place you might see pressure end is from Fox if suddenly Fox gets the share that they want and they’re happy with their contract with the NFL. But for now, what we’re seeing is it’s just the NFL is going to be able to continue to put more and more pressure on the networks and get more and more money because the appetite for football so far hasn’t gone down. I think the real question is, what’s the tipping point? When does it just become so expensive that people won’t pay for it anymore?
TEDDY DOWNEY: We’ve got a similar question here. Where does this end up? Do you actually see legislation or full on antitrust cases happening? Or is this just posturing ahead of contract negotiations?
I would say just my initial reaction is I would be surprised if we don’t start seeing at least private plaintiff cases. You have the DIRECTV win, as you mentioned, sort of setting a template. This is big money. We’re talking about Netflix. I mean, you’re seeing ESPN already change their behavior, like you said, to stream over ABC as well. I’d be pretty surprised if we didn’t see, at least at a minimum, some private plaintiff cases, if not DOJ or state AG action. What’s your take on how this all ends up playing out?
KATIE VAN DYCK: I think that that’s right. And there are already some lawsuits out there challenging affiliate fees, going after ESPN, challenging their market power and the affiliate fees that they’re able to extract. And those are consumer lawsuits because it makes their cable bills higher or their streaming YouTube TV bills higher. And I think that you’re right, Teddy. We will continue to see that. And if a state AG comes in, that’s going to be a real game changer.
TEDDY DOWNEY: Another question here. You described as a negative the fragmentation of sports media distribution rights in the streaming era. If the state AGs brought a lawsuit challenging the ability of the NFL to negotiate broadcasting rights across individual teams, do you imagine that fragmentation would decrease? I’m not sure you said that that’s how they would bring a lawsuit. But I guess I don’t know how to answer this question necessarily.
KATIE VAN DYCK: Yeah, it’s I think it’s a fair question and it’s a really challenging one in this. What does happen if the NFL suddenly can’t pull the media rights and negotiate as a block? I think there are a lot of different ways to think about this. Does that mean the Green Bay Packers are going to negotiate their media rights individually with the networks?
When I talk about fragmentation, what I meant was a single entity like Disney spreading its media rights portfolio across FuboTV, Disney+, ABC, ESPN, NFL Network. They have a lot of different places where they can force consumers to buy subscriptions.
Now, the question they’re asking, I think, is different. And that kind of gets into what are the complexities of sports scheduling and how do you do that? But it’s certainly not something that’s impossible. And I think that these are all really sophisticated parties that can figure out a way to do it within the bounds of the antitrust laws. And if it’s not just the NFL negotiating with Disney, that really dilutes the market power. And I think would probably allow Disney to charge a little bit less or to pay a little bit less, and then by extension, charge consumers a little bit less and make it harder to fragment those games across all those different platforms.
TEDDY DOWNEY: I mean, really, what you’re pointing out is also that Congress gave the NFL a deal on how they could pool their rights. And if they want to continue pooling their rights for pay TV, they need to go back to Congress and hash out another deal. I mean, that was what I took away from the article. I’m not sure.
KATIE VAN DYCK: Yes. Or they need to keep their games on broadcast television.
TEDDY DOWNEY: Yeah, they have multiple —
KATIE VAN DYCK: They have a way to do it inside.
TEDDY DOWNEY: Yeah, they have multiple ways of doing this without violating the law or they could. I mean, the problem is, if you imagine, look, they’re going to do they’re going to just push it back to the teams to negotiate. And then you’re going to have the New York’s and California’s teams and the Cowboys just dominate with that because the money is not being distribution distributed fairly.
KATIE VAN DYCK: Yeah.
TEDDY DOWNEY: But as you point out, there is a way to deal with that, which is to stream them over live TV.
KATIE VAN DYCK: Yeah, and even if let’s say that we went back to we went back to a world where like the Dallas Cowboys are bringing a lot more money in than the Tampa Bay Buccaneers, that just the NFL still—that doesn’t mean that money can’t be distributed. Just because they’re bringing in more money, it doesn’t mean the ultimate revenue can’t be distributed within the NFL. There’s probably a way to do that so that it’s equally distributed, even if it’s not equally earned.
TEDDY DOWNEY: Like luxury taxes and things like that.
KATIE VAN DYCK: Yeah. Or like that’s how conferences do it, right? That’s how college conferences handle their media rights.
TEDDY DOWNEY: We have another question here. I was thinking the same thing. EA Sports had an exclusive contract with the NFL since 2006. 2K Sports released NFL 2K5 at a reduced price a year prior. Does Electronic Arts have a monopoly? Is this anti-competitive? Should AGs tackle how sports leagues affect the gaming industry?
KATIE VAN DYCK: I think that’s a very interesting question. It’s not one that I’ve thought about or looked at a lot. But certainly, I think the fan experience, obviously, isn’t limited to watching games. And I think that there are a lot of issues—not just with video games, but with merchandise, with collectibles—where the leagues have really managed to get these exclusive contracts. And yeah, it does allow those companies to charge fans a lot. And I don’t have an answer to that question, but probably.
TEDDY DOWNEY: Yeah, we were talking about this earlier. It does seem like you’ve got the players association, on the one hand, with their controlling the naming rights, the image and likeness rights. The league is doing deals with EA on teams and logos and stuff like that. And so, you’ve got different pieces of this puzzle that are giving EA that sort of monopoly control.
KATIE VAN DYCK: Yeah.
TEDDY DOWNEY: Maybe that’s something worth looking into. Was there anything else that stood out to you when you’re looking into the Sports Broadcasting Act, or just looking into this market, that stands out to you that we haven’t talked about yet, Katie?
KATIE VAN DYCK: I think what we have here in terms of pretty large media companies being subject to the control of the NFL and subject to its whims is a pretty interesting thing to think about. And I really appreciate that we’re looking at this, not just from the fan perspective, but it’s a really complex ecosystem.
And I think that thinking about this more in terms of how should it be distributed and is the answer just like, okay, you have to do it over the air. And if you don’t do it over the air, then you are going to get in trouble is probably really strictly enforcing those limits is probably the best way to go.
Because I think for anybody trying to watch sports whether it’s basketball or football or hockey or baseball, it truly is. It isn’t just about the money. It’s about the frustration about all the logins, about not being able to flip between games. That is really like fundamental to watching sports. And that’s been lost in all of this.
TEDDY DOWNEY: Do you think it’s easier to bring a case against a Netflix or an Amazon for the way that they do—because they’re AI, they’re Big Tech, they’re AI? They’re sort of not well liked publicly at this point in terms of what they’re doing from a societal standpoint, from a popularity standpoint. Are they a better target than, let’s say, an ESPN or a Paramount, which is sort of used to paying for ESPN at this point?
KATIE VAN DYCK: I think they are in that those are ESPN is pretty widely available. And I think you’re right. From a societal standpoint, we’re all kind of accustomed to having either it used to always be some sort of cable subscription or direct TV subscription. People have gone to streaming because it’s much easier. So, like, that’s why YouTube TV is really popular, right? It is easier to get on YouTube TV. All you have to do is plug a little stick into your television and connect it to your Wi Fi, and boom, you have all the cable channels that you grew up with.
But Netflix and Amazon, while they’re, well, yes, it’s easy to get to them. It’s just one thing. It’s not a channel. And so, it’s not this like menu of channels and menu of options in terms of all the games you want to watch. And so, I think you’re right. Yeah, it makes a lot more sense., Because it’s tacking on a subscription to watch one game a week. And that’s a significant expense for one game. Four games a month, 30.
So, you’re paying what? If it’s like Amazon, if you’re paying for like Netflix is $35 a month, they’re going to say, oh, but you get all these other things. But like, maybe I don’t want all those other things. I just want to be able to watch a game and I don’t want to have to have five different subscriptions to do it.
I think the other part of this, like, the one other thing we haven’t talked about, is like the blackouts and like what networks have been able to do with that. So, like MLB has had really restrictive blackout rules for a long time. So that, even if you have their version is MLB TV, then you have to get the regional sports network, but then you still can’t even watch the regional sports network. I’ve gone through that. We’re trying to watch the Nats with my kid when he was a big Juan Soto fan. No longer there, but it’s a challenge. It’s frustrating.
TEDDY DOWNEY: Yeah. Also, it’s, like you said, they’re tying in their other product. Like I’m getting Amazon Prime. I don’t want this. I just want to watch the game. I don’t want Amazon Prime. I don’t want you like cross subsidizing getting – you know what I’m saying? And then Netflix. I don’t want to watch a bunch of AI slop. I just don’t want that tied in with my bundle.
KATIE VAN DYCK: Slop is like the perfect word to describe all this, I think. And it’s just this like clutter of their game, your thing. You might think, oh, I’m going to get the subscription just so I can watch this—like, I want to watch the French Open this month, right? So, okay. I guess I’m going to get the subscription and then I’ll put it on my calendar that I need to cancel it on June, whatever. And then you miss the calendar notice. And then, all of a sudden, two months later, you look back and you’re like, oh, my God, I’ve been paying for this and I didn’t need it. And it’s really frustrating. It’s really, really frustrating. And it drains your bank account.
TEDDY DOWNEY: Another listener question here. Is there a way the White House could use this current pressure about the sports rights to favor certain TV networks? We’ve seen the FCC and the President target Disney and NBC and seem to favor Fox and Paramount. Is this another avenue for that kind of thing? That did occur to me when you were writing about the president and the FCC? What’s your reaction to this question?
KATIE VAN DYCK: Yeah, I mean, I think, Teddy, this gets us back to the importance of the state agencies in the current political environment because they really are the heroes for protecting competition. Sure, we have a huge problem right now with First Amendment rights and what control the FCC has over these networks. Stephen Colbert just went off the air. So, yeah, that could be a problem.
TEDDY DOWNEY: I would say, from a political standpoint, you’re probably more likely, as you point out, for the state agencies to be looking at this holistically and looking at it from where is the biggest harm? And so, if they saw that ESPN or Paramount was the biggest harm—I mean, they’re already set to sue the Paramount merger, according to our reporting. But if they saw the harm at Netflix, they’d sue Netflix. If they saw the harm at Disney, they’d sue Disney.
Whereas, the White House—I think you could pretty safely say, as you point out—they’re probably more likely to sue Amazon or Netflix than they are Paramount or Fox. I guess maybe at Disney you could also do it by who their least favorite late night TV host is at the time as the most likely to be sued.
KATIE VAN DYCK: Yeah.
TEDDY DOWNEY: Is that kind of a silly way to think about litigation. Katie, you’re probably not used to getting that kind of question, but is that how you think about it?
KATIE VAN DYCK: I’m not. But I don’t think it’s a silly thing to think about, though. I mean, it kind of shows you the danger of one large media company controlling so much, having such enormous broadcast rights, right? It sort of makes the public subject to their whims and the whims of the regulatory agency that oversees them.
TEDDY DOWNEY: At some point, obviously, this is a bit of a congressional question in terms of how to structure a lot of these markets. But we haven’t talked a ton about is FCC’s power here. I mean, the FCC—largely because I don’t think we expect the FCC to ever really do much under this administration other than attack whatever late night TV hosts for whatever they’re saying that’s mean to the President.
KATIE VAN DYCK: Yeah.
TEDDY DOWNEY: But in a world in which you have a robust functioning FCC—and we didn’t have one, by the way, during the Obama administration either. It’s not like they did anything then either. The FCC does seem to have a lot of power, does seem to have a lot of ability to regulate these markets. Is there something—maybe not for this FCC, but from taking a step back, could the FCC have a role here in structuring this market in a more sensible way, or at least policing it?
KATIE VAN DYCK: Yeah, and they have had a role in the past, certainly, in terms of having rules. They had rules that specifically allowed blackouts. They withdrew those rules. So, there’s power there. I think our administrative agencies are finding it more and more difficult to pass rules because of the way the Supreme Court is sort of expanding executive power and restricting administrative agencies’ ability to act independently. That’s a whole other hour-long podcast. But they have the authority in there to regulate when blackouts are allowed, when they’re not, how things—there’s power there. It’s just whether or not they’ll use it and whether the courts will let them.
TEDDY DOWNEY: One thing that comes up a lot—if you read, as I do, sadly, a lot of media industry publications—is that with the death of cable or the sort of like long-term decline of cable, whatever you want to say, there’s more and more and more importance on live TV. And the only live TV that people predictably watch is sports.
KATIE VAN DYCK: Yeah.
TEDDY DOWNEY: So, given that sports is extremely important to the success of media generally or media channel or media package, how important is it to get these laws and antitrust enforcement right? I mean, as your piece points out, the whole history of this act was a response to an antitrust lawsuit. So, getting the antitrust right, getting the legislation right, seems to be the way that this goes. How important is it now that you have a decline of linear TV?
KATIE VAN DYCK: I’m really glad you asked that because you’re right. Sports media is the main source of revenue for live television broadcasters. And that’s what people want to watch. But if those live networks go away, what are we losing along with them? We’re losing NBC Nightly News and other free and generally considered more neutral, I think, sources of news for the public in a world where we’re increasingly subject to like conspiracy theories and all kinds of like misinformation and that sort of thing. If those go away, what goes away with them? I think that’s the way, for me, at least that I think about it.
TEDDY DOWNEY: I want to ask one last question. It’s something that came up this week that I was pretty surprised by and annoyed that I hadn’t looked into myself. There has been a lot of reporting the past few days about how Stephen Colbert’s show actually was hugely profitable. Paramount was saying, hey, this loses a lot of money. I was doubtful of that because Colbert was negotiating a $15 million a year pay package. You don’t really negotiate with people for $15 million a year if they’re losing you money.
But I kind of assumed that they were telling the truth. It’s hard to know exactly how anyone makes money when your revenues are coming from ten different places. What do you lose—is it okay—is there something about the lack of transparency, the complexity of how these companies make money, that is also a problem? Would you get more transparency, more clarity, from a business standpoint if you get these rules right?
Because it seems like there’s so many different levers that everyone’s pulling. And like you said, you can have one company, but they’re pushing out the distribution into eight different properties. Or am I misreading this situation? I mean, it’s just something that occurred to me in terms of like, obviously, it’s good to have multiple revenue streams to support a show like that, potentially, or to make money off of your IP. But at the same time, you’re losing a lot of public awareness of how anything makes money.
KATIE VAN DYCK: Yeah, I mean, I think transparency is always better. So, that sends my brain over to the college media rights issue and efforts to expand the SBA to allow colleges to pool all of their media rights the same way that the NFL does. And the big argument in favor of that is that that will suddenly generate billions more annually for colleges and that it will fix all of their budgetary problems.
But those arguments are being made without any transparency into the college’s books—with the exception of state universities where you can see their budgets pretty well. You’re not seeing all of it. And you’re certainly not seeing. And so, the question is, without transparency, are we supposed to just accept on blind faith that suddenly expanding the SBA to college sports is going to be the savior of women’s sports and non-revenue sports and our college and university system writ large?
So, yeah, transparency is always better. Because when people make these claims, we need to be able to examine them in order to get to the right place for consumers and students and athletes and everybody within the ecosystem.
TEDDY DOWNEY: Last question here, and then we’ll let you go. There have been a couple of questions about is this just going to end up being part of these negotiations? And I wonder when the leagues are doing these contract negotiations, is there a problem that when they cut a deal, then the partner in the deal becomes a supporter of what otherwise, would be sort of anti-competitive conduct or otherwise would be problematic? Do you see that playing out here potentially?
KATIE VAN DYCK: I mean, the NFL now has ownership rights in ESPN. And so, absolutely, their interests are starting to merge such that it’s going to get worse unless there is some sort of actual enforcement of the laws that we have on the books.
TEDDY DOWNEY: Do you think any of these other sort of joint venture type things or overlap of ownership, as you just mentioned, ESPN, they took—didn’t they also – they have something with MLB.com or MLB as well? I’m getting everything confused.
KATIE VAN DYCK: So, ESPN now owns the NFL network and then NFL in exchange has a 10 percent ownership in ESPN.
TEDDY DOWNEY: Okay. And then you have all these efforts to sort of have joint ventures, you mentioned, around—was it FUBU?
KATIE VAN DYCK: Yeah, yeah.
TEDDY DOWNEY: Are these joint ventures and things like that also fertile ground for antitrust scrutiny?
KATIE VAN DYCK: They are and they have been. So, there was originally a joint venture proposed between—I think it was. I don’t want to get it wrong—but it was like ESPN, Fox and maybe WB. I’m trying to remember. They were going to do some sort of like joint venture that I think it was going to be like some big streaming platform.
FUBU sued them saying, like, no, we already have that. And ESPN is already refusing to negotiate with us and forcing all these channels that have nothing to do with sports onto our platform for us to be able to host them. And they were successful. They got a preliminary injunction blocking that joint venture and then turned around and suddenly went into a joint venture with ESPN on their own. So, that now ABC, it’s got Disney Plus, Hulu. It’s got FUBU. So, it’s got all kinds of places to spread its content out in a way that’s not like competitive. It owns all of it. And it’s a way to force consumers into more subscriptions under their corporate umbrella.
TEDDY DOWNEY: Yeah, I was trying to pull up from your article here. It’s pretty wild. I mean, to your point earlier, it’s hard to keep track of all this stuff. But luckily, Katie, you are on the case, keeping track of this. And I’m super excited to see how this plays out, both at the federal and the state level. We’ve got a lot of investigations ongoing. We’ve got some litigation to track, like you said, in that DirecTV case, which is on appeal. Maybe we’ll be seeing more along those lines. I’m excited to see what happens on this Netflix front, what happens with this WB merger. And thank you so much for taking the time to talk to us about this.
KATIE VAN DYCK: You bet. I’m glad to.
TEDDY DOWNEY: And before we wrap, The Capitol Forum podcast, obviously, you’ve already heard this one, so you don’t need to listen to this one. But we also have our series TCF Investigates. That comes out once a month. Please check it out. And thanks to everyone for joining the call today.
KATIE VAN DYCK: Thanks for being out there in the trenches.
TEDDY DOWNEY: Have a good one. Bye.
KATIE VAN DYCK: Bye.
