Baseball’s Complicated Nonsensical Blackout Policy Faces Court Challenge
Fans have had enough! Those who love their team but are unable to watch them play because of baseball’s endlessly frustrating and completely illogical blackout rules finally have champions who intend rip down the policy they describe as designed “. . .to eliminate competition in the distribution of games over the Internet and television.” I wish I could claim a part in their assault but I like most fans never did anything about it. Oh we complained but at the wrong time and to the wrong people then, once the game was over, moved on with our everyday lives. That lack of a cohesive plan of attack is exactly what Commissioner For Life Bud Selig successfully depended on as he filled the pockets of team owners and as a side effect Fox Sports and the other regional sports specific networks airing Major League Baseball.
Those who’ve read my posts know that I am no fan of the Commissioner’s money oriented, quasi-fan centric determination to squeeze all the money he can from the game regardless of how badly he mangles America’s game in the process. I should have tackled it sooner but thankfully some folks in New York have taken the lead.
I found out tonight that some folks don’t realize how blackout zones worked or how lack of common sense used in creating the home territory blackout zones. All baseball fans are directly effected by them when they attempt to watch their team play. Take last night for example.
Fox Sports who as most know hold the rights to nationally broadcast games on Saturday had multiple games ready to go as they always do. Yesterday it was New York Yankees vs. the New York Mets, the Atlanta Braves vs. the Red Sox or the Brewers vs. White Sox. being a Braves fan I was hoping for their game on our local Fox affiliate. Instead Fox had determined that West Texas would rather see the Yankees/Mets because of course we are so close to New York. (Warning, sarcasm escapes randomly throughout this piece.)
Unable to watch on broadcast TV I turned to my MLB.TV package. I’ve been a subscriber to the frustrating, often inferior quality Internet streaming service since Bud and Directv Sports Networks unholy liaison when Directv left millions of dollars on the dresser as they walked out the door and instantly cut off 230,000 viewers. But when I fired up the computer I saw the “This Game is Blacked Out, go watch whatever Fox wants you to watch or suffer with radio” message. Well not exactly that but that’s certainly the implied message; watch Fox or do without. Fox Sports won’t say how in its omnipotence the decision had been made that Abilene, Texas was more interested in Yankees than the Braves, I asked once in my naiveté and was told they know exactly what their markets want to watch. I digress.
All this blackout nonsense begins with the league however and its commissioner for life, you friend and mine as long as we spend money on baseball, Bud Selig. The blackout areas were developed BB (before Bud) but they have grown and become worse under his . . .uh . . .leadership.
Mapping It Out
Below is a map of the various team home areas courtesy Braindrain0000 and Wikipedia. Note in particular areas like Las Vegas, Iowa and Oklahoma, hen check out the Mariners’ home territory, it’s really unbelievable. How that little area of Florida escaped I don’t know. The map may be outdated if not, give ‘em hell Floridians!
For our Canadian brothers and sisters it is simpler but still stupid.
This looks like a gerrymandered election map not a realistic demarcation of “home territory.” Who knew North Pole dwellers preferred the Jays to the Twins?
So last night in a fit of anger and with lots of my fellow twitter critters were howling about the blackout I decided to get off my butt see if I could do something. first I thought I need to know details and that’s when I found out about our heroes.
You’ve Been Served!
On May 9, 2012, in the quiet little hamlet of New York City a legal action questioning the correctness of the blackout policy was initiated against. . .well just about everyone. According to the filing , Fernanda Garber, Marc Lerner, Derek Rasmussen, and Robert Silver, (the plaintiffs and hereafter known as our heroes ) representing themselves and all others (the “others” would be us ) similarly situated named as defendants: :
“OFFICE OF THE COMMISSIONER OF BASEBALL, Major League Baseball Enterprises Inc., MLB Advanced Media L.P., Directv LLC, Directv Sports Networks LLC, Root Sports Pittsburgh, Root Sports Rocky Mountain, Root Sports Northwest, Comcast Corp., Comcast Sportsnet Philly, L.P., Comcast Sportsnet Bay Area, L.P., Comcast Sportsnet Chicago, L.P., Yankees Entertainment and Sports Networks, LLC, Athletics Investment Group, LLC, The Baseball Club of Seattle, L.P., Chicago National League Ball Club, LLC, Chicago White Sox, Ltd., Colorado Rockies Baseball Club, Ltd., New York Yankees Partnership, The Phillies, L.P., Pittsburgh Baseball, Inc., and San Francisco Baseball Associates, L.P.”
Well how about that! But wait, we know New York is a sleepy little village with no media presence but surely this would be major news on ESPN, Fox, the MLB Network, or MLB Network Radio! Well, no.
I follow this game very closely and while I could have missed it, such an announcement would have surely generated lots calls to talk shows and editorializing and I would have seen or heard at least some of it. Yet the first word I can find in is on the Awful Announcing blog for May 14th, a site I didn’t have on my list to check but have added.
Reasons we haven’t heard more probably have something to do with Fox, ESPN, the regional sports folks like WGN, YES and of course the MLB Networks have good reason not to talk about it much less allow the damaged parties (us again) the ability to directly support the case in the court of public opinion. The other reason is that these things aren’t very glamorous until they get someone in front of a microphone and he or she starts to tap dance around the subject. It’s much more productive to hear about the trial of a retired baseball cheater isn’t it? Anyway. . . we may see coverage eventually and you can help make that happen. More on that later.
Awful Announcing was in fact sourced by the Huffington Post the next day; May 15th. I read the Huff about as often as I read the writings of Mao so no surprise I didn’t see that. Yesterday however Jeff Passan wrote about it on Yahoo Sports and I should have seen that (fifty lashes for me.)
Passan’s story is well written and includes lots of great information and juicy tidbits as well as lots of well directed shots at the Commissioner For Life and his crew. I suggest you read it all because in context it’s simultaneously funny, sad and maddening.
On the first page of the complaint filed May 9 in Manhattan, our heroes call MLB and its codefendents an “Illegal cartel.”
You really have to read the filing to get the full impact of the claims being brought against MLB et al. In it a member of the cartel – the New York Yankees – are quoted from their 1998 lawsuit over rights for the YES Network where they admit that MLB is run like a cartel:
|“. . . Yankees conceded that the League is a cartel that has exceeded the boundaries of necessary cooperation. . .operate a horizontal cartel, through which the Major League Clubs have agreed not to compete with each other and thereby to fix prices and to reduce output below competitive levels in the (i) professional baseball retail licensing markets; and (ii) the professional baseball sponsorship markets.”|
If MLB is a cartel them the Commish is its Capo. (do we call him Don Bud? Don Selig? His excellency?)
The filing sites case law and takes a swipe at MLB.TV for forcing us to buy the whole package instead of just our team’s games. I’m not as adverse to that as I am to their complete and utter lack of customer service from MLBAM who routinely blame any problems on their subscribers and get away with it because they literally have the only game in town. This isn’t however, the first time that the Commish has been asked to address blackout rules.
Back To The Future?
According to a 2006 story by Passan the Commish made some promises then he has (no surprise) yet to keep. Speaking to the Baseball Writers Association of America Selig is quoted as follows.
|“I don’t understand (blackouts) myself. I get blacked out from some games.” . . . Selig said he had spoken with Major League Baseball about addressing the blackout issue. “Right now,” he said, “I don’t know what to do about it. We’ll figure it out.”|
A couple things jumped out at me in that quote.
- He’s “spoken with Major League Baseball.” Isn’t HE major league baseball’s guy? Was he talking to himself?
- And how can the Commissioner of Baseball be blacked out? Surely he requires access to the games as part of his job and there exist technological ways of bypassing blackouts to those with a need. The Commish is many things but dumb isn’t one of them so being unable to work around a blackout just doesn’t make sense.
Since the 2006 BBWA luncheon the Commish has had little incentive to “see what he can do” about blackout rules. In that six year period baseball’s revenues have grown by leaps and bounds directly or indirectly from pockets of fans like you and I while he perpetuated the rules he wanted to “do something about” by:
- Signing huge television contracts that perpetuated limited access to games
- When signing the DirecTv deal refused to consider that many people didn’t have and could not get access DirecTv
- Starting an Internet streaming video broadcast of “every game” – except of course those in a blackout area – to grab the money from the segment of the disenfranchised 230,000 viewers who chose not to be forced onto DirecTv.
- Continuing to ignore the ridiculous overlaps of “home” territories even when it consistently damages and threatens to bankrupt the Oakland Athletics.
For those who don’t know, the San Francisco Giants refuse to let the Athletics move from a dilapidated football stadium about 5 miles away across the bay bridge to a new ballpark in San Jose 50 miles away because they were promised that as a home territory. That’s really too stupid to be true. Unfortunately it is. On May 17th this year a story in the SF Examiner said:
|The A’s would like to build a new ballpark in San Jose and play there, but the Giants have not relinquished their rights to San Jose and Santa Clara County. Those rights have been part of the MLB constitution since 1990.|
It seems team owners divided us up in their version of a constitution and are so ill advised and trapped in the past that they believe keeping a ballpark out of an area -an area where the teams currently share monopoly rights to their TV broadcasts – will somehow damage their fan base. Really? Are they that stupid? Of course not. It’s about money. When the Giants get a big enough
bribe incentive, they’ll change their mind.
What the disagreement does is confirm the Athletics fans that MLB owners are a bunch of jerks. To the rest of fandom it’s simply nillionaires and billionaires arguing over who has the biggest…home territory. They decide by dividing up their market under an agreement where the citizens effected by the decision and whose pocket they have their hand in have no say at all. I’m sure the Gotti family admires that system, they used it for years.
It seems that common sense and the law are on the fans’ side in this but that’s not the whole story.
Fighting The Fight And Being Right Isn’t Winning
According to Passan and others, some legal experts say that MLB may just win the suit by saying look, this is a business and we can sell wherever and however we want.
That might have been true in 1950 but, in today’s world a business making unilateral moves to damage its consumers face major obstacles, ask bank of America how easy it isn’t to raise a check fee. Besides, a business like MLB that’s trying to sell itself internationally won’t want a long and drawn out legal battle that might just call into question their ethics. Ethics have become a huge issue following collapses in the financial markets and that in itself poses another problem for the Commish and MLB; Congress.
MLB doesn’t really want anyone looking too closely at their ancient and questionable antitrust exemption. They might just land on a liberal judge (yes even in New York there are liberal judges) who happens to think it’s unconstitutional to fix prices and limit the freedom for everyone – even those who can’t afford multiple TV systems and packages – to view America’s Game. Such a judge might just throw the exemption out.
A Brief History of MLB’s AntiTrust Exemption
The antitrust exemption MLB hides behind is really positioned badly for review. It began in 1922 when Justice Oliver Wendell Holmes, Jr. held for a unanimous Supreme Court in Federal Baseball Club v National League of Professional Baseball Clubs that professional baseball did not meet the definition of interstate commerce under the Constitution and the Sherman Act because, although teams traveled between states from game to game, that travel was “incidental” to the business and not an essential aspect, since all the revenue was generated from the actual games. I don’t know of anyone who believes that argument is valid today.
- Travel is not incidental to today’s game it is essential
- Revenues are not now – if they ever were – generated directly from the game. They come from sales of TV rights, souvenirs, and spinoff business as well
- Congress and the courts have significantly broadened the meaning of Interstate Commerce Clause such that it is legal to restrict almost anything they see as connected.
A fight over the exemption is one MLB probably doesn’t want. Surely Commissioner for Life Selig doesn’t want to go before congress and spell out why baseball isn’t interstate commerce and explain why Americans and can’t watch America’s game because of the arbitrary rules of a constitution created by his cartel.
Other arguments – protecting local businesses through advertising for example – are fallacious. There’s nothing local about Houston for me, I’m 400+ miles away yet I’m in a Houston blackout area and so have to listen to Houston announcers and advertisers when the Braves play there. I’m not going to Houston for an oil change because I heard it on an Astros broadcast. Beside,s having five teams claim Iowa, six claim Nevada and explaining why Seattle has a blackout area that reaches through Montana covering an area roughly the size of Western Europe might be difficult. So as happens in most of these cases there will probably be a settlement of some kind.
In fact setting a small ball game attendance drawing zone around each ballpark makes games in person. I don’t but some do and models for that exist. What doesn’t make sense is denying a paying customer the opportunity to see what they wish to see when they spend their money on TV access to games. The major conspirators in this MLB and Fox sports are seemingly oblivious to the idea that such limitations actually cost them money.
Money for Nothing All The Games We Should See
Okay I apologize for mangling Dire Straits lyrics but if one assumes that the goal of MLB, Fox, ESPN et al is to get the maximum number of viewers to watch the maximum number of games in order to maximize their advertising revenue, blackout zones are counterproductive.
I can only speak for myself but, when I see a Braves game could have been shown and and instead I am told I have to watch some team I have no allegiance to or else, I always choose the or else option. So instead of watching TV, seeing advertisements and helping them use my viewership to raise prices for those ads I’m at a movie. True that helps local businesses but I doubt that’s what Fox and MLB have in mind. But that doesn’t have to be the only option.
Fox always has multiple live game satellite feeds available when they have a national game, at least two, sometimes up to four other games are on their list of options and thus available at the same time to cover rainouts (sorry ESPN you’re just not good at planning rain delays) or existing blackout rules. There is no reason the alternate games couldn’t be available through Fox’s bevy of channels, most of which are sitting idle, showing a rerun of a darts match or rerunning the same movie they showed the night before and will show again the next day. The technology exists to put the right commercials by zip code in so the local sponsors get the air time they buy (almost none) and national sponsors are inserted anyway. There may be an initial spin up cost but once up the system runs. MLB, Fox and the rest have a case of “we have your money and we don’t want to bother.” That’s a message that won’t be politically popular for a cartel making almost ten billion this year.
Why Do You Care and What Can You do
A friend asked me tonight where he could “vote or whatever” to fix this. The truth is we don’t get votes. What we do have however is us. We populate Twitter, Facebook, Google whatchamacallits (does that still exist or is it visiting My Space?) LinkedIn and all the rest of the social networking sites. Make no mistake, Twitter is a powerful tool and it’s in our hands. If we can bring it to bear on the commissioner and owners, mobilize fan support, make this news whether the powers to be want it to be news or not. There is no bad place to talk about this because there are fans everywhere who spend those billions of dollars every year and want a say in this.
We do that by blogging about it, Tweeting it, starting support pages (there’s an I hate blackouts Facebook group but it looks inactive) for it everywhere and calling talk shows nationwide about it. This is an elections year, I’m sure there are a few politicians who would like to know why his struggling constituent can’t enjoy a ballgame with his favorite team simply because of an arbitrary rule created by a bunch of millionaires. Does Bud want to be in front of Congress this year? I don’t think so. The more noise we make the better politicians ears get.
I am going to contact the legal representatives of those who filed and see what we can do to help. I’ve even tweeted Stephen Colbert and asked him to give us a Colbert bump. Surely making sure Americans can watch America’s game anywhere anytime it’s on is more important that tweeting Sweden for a week.
Who do you know who might even in a small way help? Ask. As my mom used to say, if you don’t ask you don’t get.
I suggest as well that we all use the hash tag #endmlbblackoutsnow every chance we get. News groups watch that trend line. If we get it trending maybe they’ll take a look. It can’t hurt.
That’s a Wrap
Blackouts are plainly an un-American idea designed to enrich billionaires and limit our freedom. Ending them must be a priority if you like I, are tired of getting force fed whatever Fox or MLB think we should be watching. Word of mouth is our tool for getting this done. Once word of mouth meant tell you neighbors and friends. It was largely local but, as anyone who uses Twitter can vouch, that was long ago. Word of mouth is instantaneously international. We need to be loud but polite, the louder it is the more likely we are the get the result we want. We must be relentless and insistent but never rude in order to get our message across as that of a sane and reasoned group instead of a bunch of loons screaming just to hear our own voice.
Let’s give ourselves the present of being able to watch our team play in 2012 whenever it’s televised and wherever we are. It’s our money that those millionaires are using they should at least understand what we want for it. Americans should be able to watch America’s game without kneeling before the MLB cartel and begging their approval.