NFL Hit with Class Action Over Game Pass Crashes During Super Bowl LIV

With the Super Bowl just days away, the National Football League finds itself as the defendant in a proposed class action over allegedly widespread streaming issues that plagued last year’s big game. 

According to the 16-page lawsuit, livestreaming viewers in the United States and abroad missed crucial portions of the February 2020 Super Bowl between the San Francisco 49ers and Kansas City Chiefs—including the final three minutes when the teams were apart by only one score—after the NFL’s Game Pass subscription service crashed multiple times.

The plaintiff, a New South Wales, Australia resident, alleges the Game Pass streaming problems amount to a breach of contract between the league and those who bought the NFL’s Game Pass International Weekly or Annual Pro subscription. All Game Pass subscribers are believed to have been affected by the outages, including those in the United Kingdom, Ireland, Austria, Norway, Denmark, Sweden, Australia, Brazil, Mexico, Japan, and the Republic of Korea, the lawsuit says.

The NFL has not issued full refunds, much less apologized, for the issues experienced by Game Pass subscribers during last year’s Super Bowl, the case states.

Livestreaming is big business for the NFL, lawsuit says

As the lawsuit tells it, the NFL and its 32 teams derive “substantial revenue” from the sale of subscriptions to the league’s Game Pass livestreaming service, which go for approximately $200. Game Pass, the suit says, offers subscribers both livestreams of games for the duration of the regular and postseason, as well as access to archived, or on-demand, NFL videos. According to the case, Game Pass subscriptions for the 2019-2020 season were bought and used by between 300,000 and 700,000 international consumers in about 181 countries.

The primary value of Game Pass, the suit says, is the ability to livestream football games as they’re happening without interruption or outages. Indeed, a livestream of the Super Bowl, the annual event that decides the league’s champion for that season, is heavily promoted and advertised by the NFL as a “key feature” of the subscription service, the lawsuit stresses.

According to the complaint, “[r]easonable care and skill” will prevent most outages from interrupting a livestream of an NFL game. Interruptions that stem from outages are an “inherent foreseeable issue” for the NFL, the suit says, and cannot be remedied in the future given livestreamed games are being played in real time.

“Live viewing of the Super Bowl is a non-substitutable good,” the lawsuit reads. “Not even uninterrupted viewing of the game later is an adequate substitute for live viewing because the publicity and social media commentary on the game inevitably mean that a person viewing the game later will have already learned of the outcome of the game.”

Knowing the outcome of a game in advance diminishes the excitement and interest a viewer can derive from the event, the case further avers.

Kickoff?

Those who settled in to watch the 2020 49ers-Chiefs Super Bowl by way of the Game Pass service began experiencing streaming issues only a few minutes into the broadcast, the case says. Per the complaint, the NFL’s livestream promptly crashed and displayed an error message, and the NFL’s customer support admitted once complaints began pouring in that there were “streaming defects” during the live game.

Although Game Pass streaming eventually resumed, the service crashed once again as the conclusion of the close game approached, the lawsuit says. For international viewers, it was no easy task to switch to another method of viewing the game live, the complaint relays.

Rather than release an official statement, issue full refunds, or apologize for the Game Pass streaming problems, the NFL, through its customer service, sent only “generic copy-and-paste emails” to those who submitted complaints about the Super Bowl crashes, the lawsuit says. In the email, the NFL admitted that it was aware fans experienced Game Pass streaming outages during the game and stated the league would “share information about how they would make ‘amends for this issue’,” according to the suit.

Days later, the case goes on, customers who complained to the league about their Game Pass crashes—but not every customer who experienced the outages—received an offer of a $10 “partial refund” for the service. The partial refund falls well short of the full damages incurred by Game Pass subscribers who relied on the service to livestream the Super Bowl, the lawsuit argues.

Had the plaintiff and proposed class members known Game Pass would be defective, they would not have bought the service, or would have paid significantly less for it, the suit says.

According to the case, Game Pass subscribers entered into valid contracts with the NFL to livestream the complete Super Bowl, free from defects, in exchange for paying for the service.

“Defendants materially breached the contracts by failing to provide a complete live streaming of the Super Bowl free from defects,” the suit charges.

Who’s covered by this lawsuit?

The case looks to cover all persons who bought Game Pass from the NFL and NFL Enterprises, LLC for the 2019 to 2020 NFL season.

The plaintiff estimates that the class, if certified, will include at least thousands of people around the world.

So, I could be part of this class action if I’m a foreign citizen?

While there’s no hard-and-fast rule that keeps non-U.S. citizens from becoming “class members,” it is exceedingly rare that those outside the country will end up benefiting from class action cases filed in America. The reasons for this are both straightforward and also somewhat complicated. You can read more about it on ClassAction.org’s blog here. As for this case, only time will tell.

For those in the United States, there’s usually nothing you need to do to join or be considered a part of a class action lawsuit. It’s only if and when a case settles that consumers would need to take action.

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