“Can They Really Do That?”- The NFL’s Streaming Expansion Plan is Toppling Dominoes and Steamrolling Fans

In January 2024, for the first time, a National Football League (“NFL”) playoff game was broadcast exclusively on a streaming service. Much to the disdain of fans, the game between the Kansas City Chiefs and the Miami Dolphins during the NFL’s “Super Wildcard Weekend” was only available with a paid subscription to NBC’s Peacock. Despite public outrage, however, over 11 million people watched the game, and Peacock experienced record growth in subscriber numbers leading up to the contest.

By broadcasting the game exclusively on Peacock, the League demonstrated their willingness to buck the trend of nationally televising playoff games, similar to how the NFL made Thursday Night Football games exclusively available—as opposed to accessible nationwide on local television—on Amazon Prime Video in 2022. If Thursday Night Football was the first domino, then surely giving Peacock exclusive rights to a playoff game is the second. The question now is what happens as the dominoes continue to fall. Do angry football fans have a legal recourse?

Notwithstanding the ongoing class action suit against the NFL stemming from antitrust complaints and “NFL Sunday Ticket,” the League’s decisions of how to broadcast games have been largely unchallenged. The aforementioned suit involves alleged Sherman Act violations, and in particular that the NFL’s past dealings with DirecTV— which made games unavailable on local television solely accessible with a DirecTV subscription—harmed competition by causing higher prices and by restricting access to televised games. 

While fans’ issue with single exclusive games being broadcast on Peacock may seem different, the underlying problem is the same as with DirecTV. In both cases the NFL can limit fans’ access to games which were previously free. Additionally, the issue is intensified because fans’ inability to purchase access to individual games or games on a team-by-team basis, without requiring a subscription, means that when the NFL contracts to make certain games only available on one platform, there are no alternative means for fans to access those games. Thus, the importance of the NFL Sunday Ticket lawsuit is paramount, and if it is ultimately unsuccessful, fans may face an uphill battle in challenging exclusive games on streaming services. As a result, frustrated fans may be stuck paying more to access the same number of games they previously got for free, a notion which NBC Sports president Rick Cordella failed to adequately address in response to criticism over Peacock’s exclusive playoff game.

What about fans who just want to watch football?

In fact, Cordella insisted that requiring a subscription to access the game was actually a net positive because a subscription means that access to the NFL playoff game was “not [on] a pay-per-view” basis because subscribers also unlocked the rest of Peacock’s content. But this ignores the advantages of pay-per-view television and conflates access to other, unrelated content with consumer satisfaction. What about fans who just want to watch football? This also highlights a problem posed by streaming services—the ongoing commitment inherent in the streaming service subscription model, a commitment which is often difficult to get out of or which viewers forget to cancel. Thus, requiring a streaming service subscription for single game access does nothing to alleviate the additional costs imposed on viewers.

Finally, and perhaps the most troubling part of Cordella’s defense of exclusive NFL games on Peacock is his comparison of the NFL to the English Premier League (“EPL”), one of Europe’s most popular soccer leagues. Surely, Cordella argues, because EPL fans who sign up, whether to watch one game or multiple, have been happy with their Peacock subscriptions, NFL fans who are new subscribers will be as well. This goes beyond apples and oranges. Essentially, Cordella is attempting to compare the most popular fruit in the United States with another fruit consumed by a fraction of Americans. It also ignores the fact that multiple EPL games are shown exclusively on Peacock each year. Even with the Premier League breaking US viewership records in 2023, the most watched game on NBC Sports drew only ~10.6% (1.9 million) of the viewers of an average NFL game (17.9 million) and just 1.5% as many viewers as the 2024 Super Bowl (123.7 million). The EPL and NFL are not the same, and once again, Cordella fails to support the argument that requiring fans to subscribe to Peacock for access to one NFL game is actually beneficial to them.

Looking ahead, if the NFL is allowed to air single games on streaming platforms, how many subscriptions will be required of fans? All eyes should be on the NFL Sunday Ticket suit which goes to trial in June. If the court finds a Sherman Act violation on account of the NFL intentionally curbing the availability of games, the door will potentially be open for fans to bring suit to prevent further distribution of games on only one streaming service. Otherwise, the dominoes will continue to fall.

Scott Finney

Scott Finney is a 2L at the University of North Carolina School of Law. To read more about this issue and the NFL Sunday Ticket lawsuit, click here.