WEBVTT - SCOTUS Low Approval & NFL Antitrust Exemption 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grosseo from Bloomberg Radio. 0:00:08.560 --> 0:00:11.800 In recent years, the Supreme Court has gotten what you 0:00:11.880 --> 0:00:15.720 might call bad grades from the public, and it's gotten 0:00:15.720 --> 0:00:20.160 worse since the last term. Americans are now more displeased 0:00:20.200 --> 0:00:22.720 with the Court than at any time in the last 0:00:22.760 --> 0:00:26.640 twenty six years. According to the latest Gallup Pole, only 0:00:26.720 --> 0:00:30.040 thirty three percent of the public approves of the job. 0:00:30.120 --> 0:00:34.239 The Supreme Court is doing a record low. Joining me 0:00:34.280 --> 0:00:38.040 is Bloomberg, Supreme Court reporter Greg store Greig tell us 0:00:38.040 --> 0:00:39.440 about the latest polls. 0:00:40.479 --> 0:00:42.880 There were several new polls that came out after the 0:00:42.960 --> 0:00:45.840 Court's term ended, and by far the worst of them 0:00:46.040 --> 0:00:48.800 was the Gallup Pole that showed the Supreme Court's approval 0:00:48.880 --> 0:00:53.239 rating plummeting to thirty three percent. That is easily the 0:00:53.320 --> 0:00:57.040 lowest since Gallup started surveying about the Court in two 0:00:57.120 --> 0:01:01.520 thousand and one. The number went down nine percentage points 0:01:01.600 --> 0:01:04.959 from forty two percent when they took it in September, 0:01:05.200 --> 0:01:09.080 so really a big decline there. The other polls were 0:01:09.200 --> 0:01:12.639 not as stark, but for example, a Marquette Law School 0:01:12.640 --> 0:01:16.160 polls showed the Court down two percentage points from a 0:01:16.200 --> 0:01:19.920 year earlier, or so consistent with the notion that at best, 0:01:19.959 --> 0:01:21.440 the Supreme Court is treading water. 0:01:21.760 --> 0:01:25.960 In the Gallup poll, was it a slide among Republicans 0:01:26.040 --> 0:01:27.759 that brought that number down? 0:01:28.240 --> 0:01:32.600 It was a slide mostly among Republicans. The Court's approval 0:01:32.680 --> 0:01:38.160 ratings were already really low among Democrats and independents, but 0:01:38.240 --> 0:01:41.960 among Republicans support dropped twenty one percentage points since September. 0:01:42.080 --> 0:01:45.120 It was seventy nine percent in September, fell to fifty 0:01:45.200 --> 0:01:47.480 eight percent, and with a plus or mige margin of 0:01:47.520 --> 0:01:50.920 era four percentage points, that's definitely a big, big drop. 0:01:50.720 --> 0:01:53.280 A huge drop. And you would think that the way 0:01:53.320 --> 0:01:58.720 the Supreme Court rule this term on Republican priorities like 0:01:59.440 --> 0:02:07.160 narrowing agency power, enhancing gun rights, eliminating campaign spending restrictions, 0:02:07.600 --> 0:02:09.800 that Republicans would be happy with the Court. 0:02:10.120 --> 0:02:12.840 Well, one big reason sure seems to be Donald Trump 0:02:12.840 --> 0:02:15.640 and the way he's reacted. The Court, of course ruled 0:02:15.680 --> 0:02:18.440 against him on a couple of big issues, including tariffs 0:02:18.480 --> 0:02:21.200 and his ability to fire Lisa Cook and his birthright 0:02:21.320 --> 0:02:26.960 citizenship restrictions, and Donald Trump was extremely aggressive, lashing out 0:02:27.040 --> 0:02:30.560 at even those justices he appointed, like Amy Cony Barrett 0:02:30.560 --> 0:02:33.600 and Neil Gorsich. If you recall after the tariff decision, 0:02:33.720 --> 0:02:36.760 he said, among other things, that they are an embarrassment 0:02:36.840 --> 0:02:40.600 to their families. So Republicans, of course, do respond very 0:02:40.639 --> 0:02:43.960 strongly across the board to things Donald Trump says, and 0:02:44.240 --> 0:02:48.960 sure seems like his criticisms of the Supreme Court dragged 0:02:48.960 --> 0:02:50.440 the court down with Republicans. 0:02:51.560 --> 0:02:54.480 Tell us about some of the factors that have made 0:02:54.600 --> 0:03:00.800 this Supreme Court so unpopular with Democrats and independence. 0:03:01.720 --> 0:03:04.000 There have been a lot of forces over the years 0:03:04.000 --> 0:03:05.840 that have been dragging the court down. This is not 0:03:06.000 --> 0:03:06.880 just a one year thing. 0:03:06.960 --> 0:03:09.080 This has been happening over the course of a couple 0:03:09.080 --> 0:03:09.639 of decades. 0:03:09.639 --> 0:03:12.720 And of course we're seeing institutions in general have their 0:03:12.760 --> 0:03:16.280 approval ratings falling. But you have a combination of a 0:03:16.320 --> 0:03:18.919 court that seems more partisan, and indeed they are more 0:03:18.960 --> 0:03:21.680 partisan in the sense that it's the Republican justices who 0:03:21.680 --> 0:03:24.560 are now the most conservative and the Democratic justices who 0:03:24.600 --> 0:03:27.200 are the most liberal. You have things like the ethical 0:03:27.240 --> 0:03:29.680 controversies that we had a few years ago that were 0:03:29.800 --> 0:03:33.000 very much in the news, Clarence Thomas accepting trips paid 0:03:33.040 --> 0:03:37.240 for by a Republican mega donor. You have the way 0:03:37.920 --> 0:03:42.480 the Court acquired this conservative supermajority, with Republicans holding one 0:03:42.520 --> 0:03:45.600 seat open after Antonin Scalia died and then rushing to 0:03:45.640 --> 0:03:48.640 Ville another one when Ruth Pader Ginsburg died. So there's 0:03:48.920 --> 0:03:51.280 kind of a perfect storm. Well, I haven't even mentioned 0:03:51.320 --> 0:03:54.160 overturning Roe v. Wade, which obviously was a decision that 0:03:54.400 --> 0:03:58.360 was a high profile and among many people, extremely unpopular. 0:03:58.560 --> 0:04:01.760 So a combination no factors have kind of gotten us 0:04:01.800 --> 0:04:02.520 to this point. 0:04:02.840 --> 0:04:05.680 So there were two decisions where the Supreme Court went 0:04:05.720 --> 0:04:10.720 against President Trump on the tariffs and birthright citizenship, in 0:04:10.760 --> 0:04:15.120 the sea of decisions where they helped move forward his 0:04:15.160 --> 0:04:18.880 agenda on the regular docket and on the shadow docket. 0:04:19.200 --> 0:04:21.440 Some people are pointing to that, even Justice Kagan are 0:04:21.480 --> 0:04:24.440 pointing to those two as well. We're holding the line here. 0:04:24.720 --> 0:04:24.800 Well. 0:04:24.880 --> 0:04:28.200 I did think that Justice Kagan's remarks this summer were 0:04:29.000 --> 0:04:32.880 very interesting because after the ruling that overturned Ruby Wade 0:04:32.880 --> 0:04:36.200 three years ago, she pretty much called in to question 0:04:36.279 --> 0:04:39.400 the Court's legitimacy in a couple of public appearances, saying 0:04:39.480 --> 0:04:42.720 that when the Court is overturning cases, isn't being consistent 0:04:42.839 --> 0:04:46.320 that it can call in the question its own legitimacy. 0:04:46.360 --> 0:04:48.680 So the fact that she was in at least in 0:04:48.720 --> 0:04:51.960 some sense standing up for the court this summer, I 0:04:52.000 --> 0:04:55.119 did think was notable. Having said that, she was very 0:04:55.560 --> 0:04:58.040 strongly in descent from a number of the decisions you 0:04:58.120 --> 0:05:01.279 mentioned where the conservative majority moved the law in a 0:05:01.400 --> 0:05:04.440 particular direction, in a way that conservatives have been hoping 0:05:04.480 --> 0:05:06.200 for for quite a long time. 0:05:06.680 --> 0:05:10.279 Is anybody else buying that argument that, you know, oh, well, 0:05:10.320 --> 0:05:13.040 we held the line on these two cases, where if 0:05:13.040 --> 0:05:16.400 they hadn't held the line, it would have been shocking. 0:05:17.560 --> 0:05:18.200 You know, dude. 0:05:18.440 --> 0:05:20.359 I hate to say this as somebody who covers the 0:05:20.360 --> 0:05:23.120 Supreme Court spends all my waking hours, or at least 0:05:23.160 --> 0:05:25.400 my work hours, thinking about how to communicate what the 0:05:25.400 --> 0:05:28.480 Supreme Court is doing. But the truth is a lot 0:05:28.520 --> 0:05:30.839 of Americans don't pay attention to what the Supreme Court 0:05:30.880 --> 0:05:33.640 is doing unless it's one of these mega cases like 0:05:34.080 --> 0:05:37.840 overturning Roe v. Wade, or deciding a presidential election or 0:05:37.880 --> 0:05:41.919 something like that. So, you know, people often have impressions 0:05:41.960 --> 0:05:44.320 of the court they've heard a little bit. If you 0:05:44.360 --> 0:05:46.760 look at these polls, it's kind of remarkable how little 0:05:46.800 --> 0:05:50.000 people have heard about some cases that I think everybody's 0:05:50.040 --> 0:05:53.560 heard about for a great citizenship terrorist things that you mentioned, 0:05:54.240 --> 0:05:58.160 So you know what people think of the Court. Maybe 0:05:58.279 --> 0:06:00.440 in a lot of cases more impression is stick then 0:06:00.839 --> 0:06:04.920 something that is really tied to particular decisions that came out. 0:06:05.240 --> 0:06:07.839 And in your story you write that the justices have 0:06:08.080 --> 0:06:12.080 said in public that they don't consider polls. 0:06:12.560 --> 0:06:15.000 Yeah, they've said that over and over in a variety 0:06:15.000 --> 0:06:17.000 of different contexts. So one thing I mentioned in the 0:06:17.040 --> 0:06:20.320 story was in the Dobbs rulanguage overturned Roe v. Wade, 0:06:21.040 --> 0:06:25.600 Justice Alito mentioned that he put it, the judicial branch 0:06:25.720 --> 0:06:29.560 derives its legitimacy not from following public opinion, but from 0:06:29.600 --> 0:06:32.880 deciding by its best lives whether legislative enactments of the 0:06:32.920 --> 0:06:36.520 popular branches of government comport with the Constitution. Other justices 0:06:36.560 --> 0:06:39.799 have said similar things. On the other hand, we discussed 0:06:40.160 --> 0:06:43.880 Justice Kagan talking about the Court's legitimacy the court, and 0:06:43.960 --> 0:06:48.159 I would venture to say all the justices understand that 0:06:48.279 --> 0:06:52.680 their legitimacy is really important as a country, as a republic, 0:06:53.120 --> 0:06:56.839 we need people, both average people and other members of 0:06:56.839 --> 0:07:00.120 the government to accept Supreme Court decisions even if they 0:07:00.120 --> 0:07:02.960 don't agree with them. We need people to be like 0:07:03.080 --> 0:07:05.960 al Gore, who can say, after the bushby Gored decision, 0:07:06.080 --> 0:07:10.080 I disagree strongly, but I accept it. Otherwise, you know, 0:07:10.160 --> 0:07:13.360 we run the risk of chaos where despite what the 0:07:13.360 --> 0:07:16.840 Supreme Court says, people say, we are going to go 0:07:16.880 --> 0:07:20.520 off in our own direction, interpret the Constitution our own way. 0:07:21.040 --> 0:07:22.800 I know they say that they don't care about the 0:07:22.840 --> 0:07:26.000 polls in public, but I have this feeling like some 0:07:26.040 --> 0:07:28.240 of them must be a little bit upset about the 0:07:28.240 --> 0:07:30.920 fact that they're at record lows and that, you know, 0:07:30.960 --> 0:07:34.080 the public is seeing them as politicians in robes. I mean, 0:07:34.120 --> 0:07:36.840 they come out and defend themselves, and you see, you know, 0:07:37.000 --> 0:07:42.400 Justice Roberts trying to emphasize the number of unanimous decisions 0:07:42.520 --> 0:07:45.680 and also talk about we don't overturn precedent as much 0:07:45.720 --> 0:07:48.520 as some past justices. I mean, it seems like they're 0:07:48.560 --> 0:07:50.240 doing a lot of explaining. 0:07:50.720 --> 0:07:52.760 It is certainly the case that if you went to 0:07:52.840 --> 0:07:55.120 any of the nine of them and said you're acting 0:07:55.200 --> 0:07:58.680 like a politician, they would tell you, in very strongly 0:07:58.720 --> 0:08:01.080 worded terms, why they don't think they're a politician, why 0:08:01.120 --> 0:08:04.880 they are just interpreting statutes and interpreting the Constitution the 0:08:04.920 --> 0:08:06.360 way they think they should be interpreted. 0:08:07.240 --> 0:08:10.280 I am puzzled by one of the polls that found 0:08:10.320 --> 0:08:13.880 that a majority approved of the decisions the Court made 0:08:14.280 --> 0:08:16.440 while not approving of the Court itself. 0:08:17.240 --> 0:08:20.080 One thing that to me is fascinating about these polls 0:08:20.360 --> 0:08:24.960 is that even as the Court is becoming less popular, 0:08:25.760 --> 0:08:28.080 it's decisions, at least in this last term, were actually 0:08:28.160 --> 0:08:30.680 quite popular. So if you look at the Marquette poll, 0:08:30.760 --> 0:08:35.040 they asked about thirteen recent Supreme Court decisions, and a 0:08:35.120 --> 0:08:37.640 majority of people said the justices had made the right 0:08:37.679 --> 0:08:41.920 decision in eleven of those cases. So there is when 0:08:42.000 --> 0:08:44.360 you ask people about the particular issues the Supreme Court 0:08:44.440 --> 0:08:46.920 is deciding, there is some support for what the Supreme 0:08:46.920 --> 0:08:49.360 Court is doing, even as the Court as a whole, 0:08:49.360 --> 0:08:52.240 as an institution, goes down in the public mind. 0:08:52.880 --> 0:08:55.640 And there have been calls for a long time from 0:08:55.679 --> 0:08:59.920 liberal groups to either add members to the court, packing 0:09:00.080 --> 0:09:03.439 the court, or set term limits. Do you think that 0:09:03.720 --> 0:09:07.760 come twenty twenty eight in the presidential election, we're going 0:09:07.800 --> 0:09:10.960 to be hearing more about making changes to the court 0:09:11.080 --> 0:09:11.680 in some way. 0:09:12.080 --> 0:09:14.840 I expect very much we will hear a lot about this. 0:09:14.960 --> 0:09:18.160 On the Democratic side. We already have pee foota Judge 0:09:18.240 --> 0:09:22.480 and Kamala Harris as to prospective candidates who are pushing 0:09:22.520 --> 0:09:26.800 the idea of adding seats to the Supreme Court. Others 0:09:26.840 --> 0:09:30.840 are talking about things like term limits, and of course 0:09:30.920 --> 0:09:33.760 right now it's just talked because Democrats are not in 0:09:33.800 --> 0:09:35.920 a position to do that. But you don't have to 0:09:35.920 --> 0:09:38.320 squit too hard into the future to imagine a world 0:09:38.400 --> 0:09:41.120 where Democrats might have control of both Congress and the 0:09:41.160 --> 0:09:44.280 White House, and then the question would be will they 0:09:44.320 --> 0:09:45.920 do something about the Supreme. 0:09:45.559 --> 0:09:48.040 Court now that they have that power. 0:09:48.640 --> 0:09:51.600 And you know, we may see a dividing line among Democrats. 0:09:51.960 --> 0:09:54.720 Some who will say, we need to do something now, 0:09:54.800 --> 0:09:55.160 this is. 0:09:55.120 --> 0:09:57.600 The thing that will you know, make an instant. 0:09:57.360 --> 0:10:01.200 Change adding seats to the Supreme Court, and others who say, look, 0:10:01.280 --> 0:10:03.880 if we do it when we have the power to 0:10:03.960 --> 0:10:06.600 do it, as soon as Republicans get back in power, 0:10:06.720 --> 0:10:07.679 they're going to do it. 0:10:08.040 --> 0:10:09.640 And that's not good for anybody. 0:10:09.800 --> 0:10:12.040 You talk to Jesse Wegman of the Brennan Center and 0:10:12.080 --> 0:10:15.559 he said, this court is not going to change its behavior. 0:10:15.720 --> 0:10:19.840 It was instituted precisely for this behavior. And the way 0:10:19.880 --> 0:10:22.720 I think you saw this is structurally, which is what 0:10:22.720 --> 0:10:25.520 we've been talking about I mean last term, the conservative 0:10:25.600 --> 0:10:29.840 majority certainly changed the law. Are any cases coming up 0:10:29.920 --> 0:10:33.480 next term that might give them the same kind of opportunities. 0:10:34.080 --> 0:10:37.680 We don't yet have the boundary pushing cases that we 0:10:37.800 --> 0:10:42.080 had last term, So I would say birthright, citizenship, Tariff's, 0:10:42.240 --> 0:10:46.040 Lisa Cook. All of those were Donald Trump doing something 0:10:46.160 --> 0:10:49.800 that a couple of years ago nobody was really thinking 0:10:49.920 --> 0:10:52.400 a president might be able to do. And we don't 0:10:52.520 --> 0:10:55.440 yet have those cases, but we might. You know, so 0:10:55.520 --> 0:10:58.760 many of these cases at the lower court level get 0:10:58.800 --> 0:11:02.000 up to the Supreme Court through the emergency or shadow 0:11:02.040 --> 0:11:05.600 docket and can present that sort of issue. That's what 0:11:05.720 --> 0:11:10.800 happened with Lisa Cook. So it is certainly possible. For 0:11:10.840 --> 0:11:13.120 the most part, we have seen the way I think 0:11:13.160 --> 0:11:17.120 about it is, we have seen this court do most 0:11:17.200 --> 0:11:20.520 or all of the things that Ronald Reagan would have wanted, 0:11:20.679 --> 0:11:24.240 that the kind of Reagan Revolution, the notion of let's 0:11:24.320 --> 0:11:28.280 you know, get back to our originalist interpretation of the Constitution, 0:11:28.520 --> 0:11:31.880 let's bolster the power of the presidency, and you know, 0:11:31.960 --> 0:11:35.120 reduce the role of race in our in our governments. 0:11:35.160 --> 0:11:38.480 All those things that are long standing Conservative priorities. The 0:11:38.520 --> 0:11:40.840 Court has been willing to do those things. It's where 0:11:40.880 --> 0:11:43.920 Donald Trump has sort of created his own priorities that 0:11:44.000 --> 0:11:46.120 maybe aren't things that the Reagan. 0:11:45.840 --> 0:11:48.280 Folks would have thought of. That's where the Court is 0:11:48.320 --> 0:11:49.439 sometimes drawing that line. 0:11:49.679 --> 0:11:54.360 Finally, there was a rumor that Justice Alito was going 0:11:54.400 --> 0:11:58.000 to retire last term, and he has said that he 0:11:58.120 --> 0:12:00.000 is not retiring this term. 0:12:00.120 --> 0:12:01.320 At least he. 0:12:01.240 --> 0:12:03.160 Did say that, I can only tell you what words 0:12:03.160 --> 0:12:05.640 he used. This was in an interview with the editorial 0:12:05.640 --> 0:12:07.920 features editor of the Wall Street Journal, so sort of 0:12:07.920 --> 0:12:13.160 a friendly audience. Justice Alito told them, obviously, I'm here 0:12:13.200 --> 0:12:15.920 for another term. And the reason that we're talking about 0:12:15.920 --> 0:12:19.720 this now is normally, if a Supreme Court justice is 0:12:19.720 --> 0:12:22.240 going to retire, he or she does that at the 0:12:22.360 --> 0:12:25.280 end of a term. It's the least disruptive for the court. 0:12:25.559 --> 0:12:27.640 You know, if you leave in the middle of the term, 0:12:27.760 --> 0:12:29.960 then you end up with, you know, maybe only an 0:12:29.960 --> 0:12:33.319 eight justice court. And so when Justice Alito didn't retire 0:12:33.320 --> 0:12:36.079 at the end of this last term, normally, when with 0:12:36.240 --> 0:12:38.480 thak Okay, he's going to stick around for another term. 0:12:38.920 --> 0:12:42.280 But because there is at least the prospect that Democrats 0:12:42.280 --> 0:12:46.680 could take over the Senate in the November midterm election. 0:12:47.440 --> 0:12:51.080 There has been some talk that if that happened, maybe 0:12:51.320 --> 0:12:54.280 Justice Alito, who's very conservative, might say, or at least 0:12:54.280 --> 0:12:57.280 come under pressure to say, I'm going to retire now 0:12:57.720 --> 0:13:00.600 so that the lame duck Congress with the republic controled 0:13:00.640 --> 0:13:05.520 Senate can confirm my successor These comments seem to preclude that, 0:13:06.000 --> 0:13:09.880 obviously things can change, But he at least sounded, from 0:13:09.880 --> 0:13:12.360 what I can read in this story, as somebody who's 0:13:12.480 --> 0:13:14.719 not at all planning on leaving in November. 0:13:15.040 --> 0:13:17.760 Thanks so much for taking the time, Greg, That's Bloomberg, 0:13:17.800 --> 0:13:21.600 Supreme Court reporter Greg Store. Coming up next is the 0:13:21.760 --> 0:13:27.280 NFL breaking anti trust law in its negotiations with streaming services. 0:13:27.720 --> 0:13:33.640 This is Bloomberg. It's a tough time for football fans 0:13:33.640 --> 0:13:38.040 who live outside their favorite teams home market. The rise 0:13:38.080 --> 0:13:42.240 of streaming services has ended the era when sports fans 0:13:42.320 --> 0:13:46.000 could easily follow their favorite teams on a handful of 0:13:46.040 --> 0:13:51.440 broadcasts and cable channels without buying special subscriptions. But the 0:13:51.559 --> 0:13:56.800 NFL has signed deals with multiple services, creating a bewildering 0:13:56.920 --> 0:14:00.439 schedule and a steep cost to watch games at home 0:14:00.840 --> 0:14:04.840 as fans have to subscribe to multiple streaming services in 0:14:04.840 --> 0:14:08.800 addition to a traditional cable or satellite bundle. During a 0:14:08.880 --> 0:14:14.800 Judiciary subcommittee hearing in June, Republican Congressman Jim Jordan described 0:14:14.840 --> 0:14:19.160 the challenge football fans face trying to watch their favorite team. 0:14:19.560 --> 0:14:21.040 Here's what the fan deals with today. 0:14:21.840 --> 0:14:24.960 In our report, a green Bay Packers fan who lives 0:14:25.000 --> 0:14:27.440 in Dallas, Texas, grew up in green Bay, loves the Packers, 0:14:27.440 --> 0:14:29.720 wants to watch Packers grew up in Dallas, Texas. For 0:14:29.800 --> 0:14:32.240 the twenty twenty six season, the Packers are scheduled to 0:14:32.240 --> 0:14:35.160 play eight games on Fox, two games on Amazon Prime Video, 0:14:35.200 --> 0:14:37.840 two games on Netflix, two games on NBC, one game 0:14:37.840 --> 0:14:40.240 on ESPN, one game on CBS, and one on schedule 0:14:40.320 --> 0:14:42.080 game that is left to be determined by the NFL. 0:14:43.160 --> 0:14:46.160 The fan will need access to Amazon Prime Video, Netflix, NBC, 0:14:46.200 --> 0:14:49.080 and ESPN to see the seven game schedule for those services. 0:14:49.880 --> 0:14:52.000 For the nine games schedule for Fox and CBS, the 0:14:52.000 --> 0:14:54.120 fan will likely need Fox and CBS because some of 0:14:54.160 --> 0:14:57.040 the games will be on broadcast television in Dallas. The 0:14:57.080 --> 0:14:59.120 fan will also likely need Sunday ticket just to watch 0:14:59.160 --> 0:15:02.520 some subset of the nine Fox CBS games, because the 0:15:02.560 --> 0:15:04.600 fan will not know which games will and will not 0:15:04.640 --> 0:15:07.240 be on broadcast until the NFL and relevant networks released 0:15:07.240 --> 0:15:10.040 the broadcast maps the week of the games. That's what 0:15:10.080 --> 0:15:12.920 they got to navigate. That's what they got to navigate. 0:15:13.360 --> 0:15:17.760 The Justice Department has opened an anti trust investigation into 0:15:17.840 --> 0:15:21.640 whether the NFL is breaking anti trust law in its 0:15:21.720 --> 0:15:26.320 negotiations with streamers and driving up the costs for consumers. 0:15:26.880 --> 0:15:30.080 My guest is an expert in anti trust, Harry First, 0:15:30.120 --> 0:15:33.280 a professor at NYU Law School. Harry, some of our 0:15:33.320 --> 0:15:37.760 Bloomberg reporters looked into this, and so for a Philadelphia 0:15:37.840 --> 0:15:42.240 Eagles fan living outside of Pennsylvania to get all the 0:15:42.280 --> 0:15:46.200 games the Eagles are in, they would need Sunday Ticket 0:15:46.360 --> 0:15:50.120 at three hundred and seventy eight dollars, YouTube at eighty 0:15:50.200 --> 0:15:54.800 three dollars, Peacock at thirty three dollars, Fox Won at 0:15:54.840 --> 0:15:58.960 twenty dollars, and Prime Video at nine dollars, for a 0:15:59.000 --> 0:16:03.040 grand total of five hundred and twenty three dollars. Yet, 0:16:03.080 --> 0:16:06.800 the NFL claims that eighty seven percent of its games 0:16:06.880 --> 0:16:11.600 are primarily shown on free over the air broadcast TV. 0:16:12.760 --> 0:16:16.560 I mean, I assume that that's true, you know. Yeah, 0:16:16.600 --> 0:16:18.640 So if you want to just want to watch the Eagles. 0:16:18.680 --> 0:16:20.920 I mean, you know it's going to be on free 0:16:20.920 --> 0:16:23.080 over the air television. But if you want to watch 0:16:23.120 --> 0:16:25.440 away games, you know, if you want to just sit 0:16:25.480 --> 0:16:28.520 there on a Sunday and watch every game out of 0:16:28.560 --> 0:16:30.560 your market, you're gonna have to pay for it. If 0:16:30.600 --> 0:16:34.520 you want to watch every time the Eagles play, you 0:16:34.520 --> 0:16:37.840 know in LA, it's not going to be on Channel 0:16:37.920 --> 0:16:41.880 ten in Philadelphia. So yes, if you fly to LA, 0:16:42.040 --> 0:16:45.400 it'll be there for free too, but not exactly free. 0:16:45.440 --> 0:16:49.120 So I don't know the number. It's one of those 0:16:49.200 --> 0:16:51.960 numbers that will convince no one. Obviously, a lot of 0:16:52.000 --> 0:16:55.440 people are buying the Sunday ticket to watch out of 0:16:55.520 --> 0:16:58.920 market football games because they just love sitting there watching 0:16:59.320 --> 0:17:01.640 their team wherever they are and other teams, you know, 0:17:01.680 --> 0:17:04.679 because there are teams all around the country that you 0:17:04.760 --> 0:17:08.399 can't see on over the AIRTV unless you pay extra 0:17:08.480 --> 0:17:08.760 for it. 0:17:09.240 --> 0:17:13.639 The investigation is reportedly focused on this antitrust loophole in 0:17:13.680 --> 0:17:18.520 the Sports Broadcasting Act that allows the NFL and other 0:17:18.640 --> 0:17:24.120 leagues to negotiate media deals collectively on behalf of their teams. 0:17:24.520 --> 0:17:27.840 And that's the same loophole that the Congressional Subcommittee was 0:17:27.880 --> 0:17:29.200 looking into in June. 0:17:29.720 --> 0:17:32.800 So the lawyer in me doesn't like to call them loopholes, 0:17:33.200 --> 0:17:38.119 likes to call them exemptions, you know, in nineteen sixty one. Yes, 0:17:38.480 --> 0:17:40.600 it's interesting to try to think about it, and I'm 0:17:40.600 --> 0:17:45.120 not certain I fully understand why the over the air 0:17:45.200 --> 0:17:48.960 broadcasters went along with this because they were I think 0:17:49.080 --> 0:17:52.800 relatively more powerful than the NFL in nineteen sixty one, 0:17:52.920 --> 0:17:56.480 which was, you know, not the juggernaut we know today. 0:17:57.040 --> 0:18:02.760 So they allowed the NFL well to pool all their 0:18:02.920 --> 0:18:07.600 TV rights free of any anti trust issues. The laws 0:18:07.640 --> 0:18:11.320 in some ways less settled then, and you know, maybe 0:18:11.320 --> 0:18:13.200 it was a little less clear, but they really would 0:18:13.200 --> 0:18:16.600 have had some problems, and there had been litigation, and 0:18:16.760 --> 0:18:18.760 I think everyone thought it was in their best interest 0:18:18.800 --> 0:18:24.320 to negotiate with a single source have this brand NFL football, 0:18:24.320 --> 0:18:28.720 which then I guess the TV networks could sell to 0:18:28.880 --> 0:18:32.959 advertisers because you know, that's that's third game. So in 0:18:33.000 --> 0:18:36.200 that sense, it was a good deal for those two 0:18:36.400 --> 0:18:40.000 powerful sides, you know, who then got this through Congress. 0:18:40.320 --> 0:18:43.720 I doubt that the fans showed up for legislative fearings, 0:18:44.000 --> 0:18:47.720 and you know, in the end, the fans didn't pay 0:18:47.800 --> 0:18:53.240 directly because those are over the air quote unquote free broadcasts, 0:18:53.280 --> 0:18:56.480 but you know, someone picks up the tab for the advertising, 0:18:56.760 --> 0:18:58.440 so consumers do pay. 0:18:59.119 --> 0:19:02.000 You had the Congress hearing in June, and of course 0:19:02.480 --> 0:19:07.840 politicians on both sides question whether the deals now violate 0:19:08.119 --> 0:19:11.640 that law. Do you think they violate that law? 0:19:12.240 --> 0:19:15.520 Well, in a technical sense, the question is whether the 0:19:15.960 --> 0:19:20.639 exemption applies to some of the current deals. So if 0:19:20.680 --> 0:19:25.520 it's a deal that involves broadcasting rights where the broadcast 0:19:25.840 --> 0:19:30.920 is paid for by sponsors in otherwise advertisers supported, then 0:19:31.000 --> 0:19:34.840 that comes within the Sports Broadcasting Act. But the current 0:19:34.880 --> 0:19:39.960 deals that the NFL's negotiating are with you know platforms 0:19:39.960 --> 0:19:44.119 are with streaming platforms, pretty hard to see how they're 0:19:44.160 --> 0:19:50.120 within the wording of the exemption from the Sports Broadcasting Act. 0:19:50.200 --> 0:19:54.560 So the Sports Broadcasting Act wouldn't give the NFL an exemption. 0:19:55.119 --> 0:19:57.560 They'd have to go straight under the any Trust laws 0:19:57.600 --> 0:20:00.760 and then the questions whether violates the any trust laws 0:20:01.240 --> 0:20:05.199 And they got pretty much socked in the Sunday ticket 0:20:05.280 --> 0:20:09.879 litigation with a pretty clear binding from a jury. So 0:20:09.920 --> 0:20:13.640 the pulling of rights apparently keeps some of the teams 0:20:13.680 --> 0:20:19.560 from negotiating separately to sell their broadcasting rights to you know, 0:20:19.560 --> 0:20:23.359 maybe other streaming platforms, or put them on YouTube where 0:20:23.480 --> 0:20:25.720 you know you would just if you didn't want to 0:20:25.760 --> 0:20:28.359 get a whole package, all you wanted to do was 0:20:28.440 --> 0:20:31.280 follow the Eagles. You would want to get a package 0:20:31.400 --> 0:20:35.240 just of Eagles games. But that can't happen now. So 0:20:35.720 --> 0:20:38.960 they would be in for some litigation if they don't 0:20:38.960 --> 0:20:40.160 fall within that exemption. 0:20:40.600 --> 0:20:44.240 And why did the judge toss out that almost five 0:20:44.320 --> 0:20:48.880 billion dollar jury verdict against the NFL in the Sunday 0:20:48.960 --> 0:20:50.679 Ticket class action lawsuit? 0:20:51.320 --> 0:20:54.240 So there are two answers to this. The first answer 0:20:54.320 --> 0:20:58.720 that I often would give in class was it's the zeros. 0:20:59.200 --> 0:21:03.119 I get that. That's not a legal answer, but this 0:21:03.320 --> 0:21:07.400 was probably the largest plane of verdict, certainly an anti 0:21:07.440 --> 0:21:11.240 trust maybe in any plane of verdict, but four point 0:21:11.280 --> 0:21:16.520 seven billion dollars before trebling is a lot of money. Now, 0:21:16.840 --> 0:21:21.680 that can be a reason for knocking down the amount, 0:21:21.880 --> 0:21:26.000 but that's not what the judge did. He disqualified two 0:21:26.160 --> 0:21:31.240 of their experts on damages that he had actually qualified 0:21:31.720 --> 0:21:35.360 at the trial. So it seems a little like, well, 0:21:35.440 --> 0:21:39.280 let me find a problem with this trial. And interestingly, 0:21:39.320 --> 0:21:42.880 he did not find a problem with liability in itself. 0:21:43.040 --> 0:21:45.640 It was on the damages I think. So that case 0:21:45.680 --> 0:21:48.560 has sort of has been sitting before the Court of 0:21:48.600 --> 0:21:52.280 Appeals now for a while waiting for a decision. 0:21:52.800 --> 0:21:59.040 So what so the Justice Department is launching an investigation 0:21:59.320 --> 0:22:03.480 into whether the NFL and the leagues are breaking antitrust 0:22:03.600 --> 0:22:07.080 law in their negotiations with streamers. Is that different from 0:22:07.160 --> 0:22:09.040 the Sunday Ticket. 0:22:09.080 --> 0:22:12.359 I don't know exactly what negotiations they have in mind. 0:22:13.080 --> 0:22:16.639 I mean the Sunday Ticket litigation involves an agreement to 0:22:17.359 --> 0:22:20.679 distribute and also they add it with direct TV first 0:22:21.040 --> 0:22:24.639 and then with YouTube that if you wanted access to 0:22:24.800 --> 0:22:28.480 these games, you would buy it and it would be 0:22:28.760 --> 0:22:34.040 streamed on YouTube. Now there are other they're licensing Netflix, Amazon, 0:22:34.680 --> 0:22:38.840 so they're licensing a bunch of different platforms. But the 0:22:38.920 --> 0:22:43.479 problem is the same without regard to which platform it is. 0:22:44.000 --> 0:22:47.000 It's the question of, you know, is the NFL a 0:22:47.119 --> 0:22:52.479 single entity or are they a group of however, many teams, 0:22:52.480 --> 0:22:57.440 thirty two teams all coming together and agreeing that they're 0:22:57.440 --> 0:23:01.360 going to sell their rights jointly, their rights because each 0:23:01.359 --> 0:23:04.520 one has the right, you know, the legal right the 0:23:04.560 --> 0:23:08.880 copyright to the games that they're involved with. So they're 0:23:08.920 --> 0:23:12.359