Earlier this month, the NFL sent an email blast to NFL.com users to Update of the Terms of Service.
The email states: “We have made important updates to our Terms of Service that govern your use of NFL Enterprises LLC’s websites, mobile applications, and other online and mobile services. The updates include changes to ‘Section 16. Limitation of Liability’ and the terms for handling disputes set forth in ‘Section 18. Choice of Law, Class Action Waiver, Small Claims and Arbitration’ and ‘Section 19. Mandatory Pre-Arbitration Dispute Resolution Procedure.'”
We I wrote something about it. We also asked the league why the change was made. The specific questions were these: (1) “Can I email users for a comment/explanation/anything on the reasons for updating the Terms of Service and when it will be posted?”; and (2) “Basically, what is the purpose of this and why now?”
Here’s the answer: “The league has been updating the terms regularly. The changes bring them in line with those of the other major sports leagues that have made similar changes to their terms. They mentioned the class action waiver provision and a reference to the Sunday Ticket case. The class action waiver had been included in the terms since 2016 or 2017.”
Because the new Terms of Service do not disclose the actual changes to the old Terms of Service, it is impossible to know what the section containing the class action waiver looks like. But the section containing the class action waiver has definitely changed, according to the clear words of the email.
It’s unclear if the new terms of service will apply to NFL.com users who purchase Sunday Ticket through YouTube, but the league may try anyway.
The new terms of service more clearly apply to products sold by the league directly to NFL.com users, such as NFL+, which could potentially create an antitrust issue for the league.
For example, if a fan wants to see recordings of past games of just one team, but has to purchase access to all past games of all teams, this can be a problem.
Regardless, the league has changed its terms of service. And the NFL is basically saying it just wants to keep up with the other leagues.
The timing is still odd, to say the least. It came after the NFL accepted a $4.7 billion antitrust verdict in the Sunday Ticket case, not before. And even though the presiding judge threw out the verdict because he ruled that the expert testimony on financial damages was not enough (after deciding it was good enough), the league is still at risk from the out-of-market package. The terms of service may aim to fill potential loopholes that could lead to further lawsuits.
Whether a judge will believe this long list of fine-print provisions that no one will ever read remains to be seen. But they are there for a good reason.
For example, Disney recently argued that a wrongful death lawsuit brought by the estate of a woman who died after eating at a Disney World restaurant should be referred to arbitration because she had agreed to the Disney+ terms of service. Although Disney backtracked Having generated bad publicity, this tactic is an example of why and how such conditions are imposed on consumers.
Big companies want to avoid jury trials at all costs. And that’s why they’re doing what they can to put a stop to anyone who might ever sue them in court. Regardless of whether the NFL will try to use the new terms of service as a response to future antitrust lawsuits related to Sunday Ticket, the changes were made for a reason. And the NFL’s decision to email all NFL.com users to notify them of the changes is just another checkmark on the road to laying the groundwork for a checkmate in court for any customer who dares to file suit.
So, yes, football is family. Also, terms and conditions apply.
