The origins of our sporting discontent is revealed through the history of the leagues, particularly how changes in broadcasting technology have led to league action for profit and consolidation over markets for broadcasts and athlete contracts. Complex systems of game access in the streaming era connect to a larger historical pattern of blackouts and league control upheld by legal anti-trust exemptions leveraged against labor and fans.

In 1922, a baseball dispute made it all the way to the Supreme Court as a small outsider club argued the MLB’s practice of retaining long player contracts was uncompetitive and illegal. Chief Justice Taft ruled that baseball was not commerce and could not be regulated according to antitrust law, providing an exemption to the MLB. The court ruled that the Baltimore Terrapins had no right to be upset with the MLB and allowed leagues to continue anti-competitive athlete contract practices (Fed. Baseball Club, Inc. v. Nat’l League of Prof’l Baseball Clubs, 1922). After the advent of radio, the Roosevelt administration created the Federal Communications Commission (FCC) to limit and control radio licenses, and soon courts ruled that sporting events and broadcasts could not be retransmitted without the consent of team organizations. The Pittsburgh Athletic Club successfully sued the KQVC radio station for airing games without their consent in 1938, bringing power to leagues to control not just athlete contracts but broadcasting rights in the radio era (Garrett & Hochberg, 1983 p. 157-8). After the rise of television, the 1961 Sports Broadcasting Act brought these rulings and challenges into clear legislative action. Congress ruled that the NFL, NBA, MLB, and NHL were exempt from certain antitrust laws, and that teams could pool together to create league-wide contracts with broadcasters. The act established protected market territories for each team, so other teams could not broadcast into a different territory or compete with home game broadcasts. The intention was to increase competitive equity in the league, so small market teams, like Green Bay, could benefit from TV contracts just like the teams in New York City. However, a system of blackouts was born, as fans could only watch TV broadcasts of the local games in their area but cannot access other broadcasts without total league pass packages – a system which persists today and has grown more complex with digital streaming. Protections for anti-competitive league practices persisted from the early days of radio to our digital present, granting league power over athlete labor and broadcasts, without athlete and fan interests fully accounted for (Garrett & Hochberg, 1983 p. 180). A historical pattern emerged where technological change was followed by Congress and courts protecting league and media interests..

Broadcasting and blackout controls were paired with intense limits on athlete access to contracts, often referred to as reserve clauses. In the first half of the twentieth century, there were no free agency rules, and athletes were often locked into rookie deals that they could not escape or re-negotiate as younger players entering the league got better and better contracts (BR Bullpen, 2012). As television dominated the American living room and executives sought new profits, leagues sought to merge – an additional anticompetitive practice that offered an opportunity for new challenges. Influenced by the action and gains of the Civil Rights movement, athletes like Curt Flood and Oscar Robertson sued sports leagues during the merger and won important concessions, including free agency opportunities. These actions galvanized leagues to unionize and contract bargaining agreements began to determine rules around compensation and free agency.

Once again, as fandom becomes digital and athletes go global, there are both new disruptions and opportunities for change. Teams and leagues prioritize control and their business, but new challenges to these practices emerge. In the twenty-first century, athletes have spoken out about their desire for new contracts and opportunities as well as over issues of fairness, compensation, and social justice in leagues and American society at large. As fans have greater access to players through social media, and players have more power within leagues today, new forms of fan-player understanding and advocacy for freedom of choice can develop. New digital possibilities for broadcasting access and choice could also challenge sports as an enterprise that creates large profits for a select few teams while other small market teams struggle for money and talent. Powerful government and corporate interests argued that historical restrictions and their long aftermath have evened out team profits and sporting competition, yet whether this has actually been achieved is not so clear. Ideas for a new digital “a la carte” system, where fans could select and access broadcasts for the players, teams, and games they are most interested in have begun to take shape (Mathews 2018 p. 204). Competitive fairness in the market for players and broadcasts would become aligned with fair competition in sporting. Reforming restrictions built on antitrust exemptions would instill fairness in the market for fans and athlete labor, and in both the court of law and the court of play. Athletes would have more say and we wouldn’t have to worry about how to log on to the FanDuel Sports Network at mom’s house.

References

Fed. Baseball Club of Balt., Inc. v. Nat’l League of Prof’l Baseball Clubs, 259 U.S. 200 (1922) https://supreme.justia.com/cases/federal/us/259/200/

Garrett, R. A., & Hochberg, P. R. (1983). Sports broadcasting and the law. Indiana Law Journal, 59(2), 155–194.

Mathews, J. (2018). Sports broadcasting blackouts: A harbinger of change in rapidly evolving media landscape comment. Houston Business and Tax Law Journal, 18(1), 202–223.