NOTE A Delayed Blitz on the NFL’s Blackout Policy: A New Approach to Eliminating Blackouts in Publicly Funded NFL Stadiums James Gross* ABSTRACT As cities continue to rely on the use of tax-exempt municipal bonds to build bigger, better, and more expensive professional sports stadiums to ac- commodate their local National Football League (“NFL”) teams, taxpayers are ultimately the ones who foot the bill. At the same time, the NFL continues to enforce its blackout policy, preventing local television broadcasts of NFL games unless a minimum number of tickets are purchased before kickoff. As a result, NFL fans are often subjected to a double punishment by the NFL and their municipalities: they are forced to pay for the construction of a new NFL stadium, and are then prevented from watching the games played inside of these stadiums on television unless enough tickets are purchased to prevent the game from being blacked out. Although a number of challenges, both legal and political, have been brought against this policy in the past, each has ulti- mately failed, and the NFL’s blackout policy still stands today. * J.D., May 2014, The George Washington University Law School; B.A., History and Eco- nomics, 2011, Loyola University of Chicago. I would like to thank the staff of The George Wash- ington Law Review, in particular John Chisholm, Courtney Murtha, Barbara Bruce, Laura D’Elia, Nicholas West, Scott Myers, Nathan Green, and Whitney Hermandorfer, for all of their time and effort spent in selecting and editing this Note. I would also like to thank my uncle, Mike Piepsny, Ohio State Representative Robert F. Hagan, and Mr. Jordan Finke for providing me with the background materials that inspired me to write this Note. Lastly, I want to thank my friends and family for their helpful comments and, most importantly, their endless support. August 2014 Vol. 82 No. 4 1194 2014] A DELAYED BLITZ ON THE NFL’S BLACKOUT POLICY 1195 To solve this problem, this Note proposes that Congress amend the cur- rent Internal Revenue Code to except municipal bonds from tax-exempt status whenever these bonds are used to fund a stadium that is subject to broadcast blackouts based upon the number of tickets sold. The consequence of such an amendment would effectively be to force the NFL and NFL team owners to make a choice: either continue to receive public funding for new stadiums or continue to impose the NFL’s blackout policy. They would not, however, be able to continue to take advantage of both of these options simultaneously. Taxpaying NFL fans would no longer be subject to a double punishment when they try to watch their local football team on television, and they would find themselves in a better overall financial position than they were in before. TABLE OF CONTENTS INTRODUCTION ................................................. 1196 I. KICKOFF: THE NFL BLACKOUT RULE IN PUBLICLY FINANCED NFL STADIUMS .............................. 1198 A. The NFL’s Blackout Rule ........................... 1198 B. The NFL’s Popularity Explosion on Television ..... 1200 C. The Dawn of Today’s NFL Blackout Rule .......... 1204 D. Public Financing for Professional Sports Stadiums . 1206 II. THE GOVERNMENT ENTERS THE RED ZONE: POLICYMAKERS RECOGNIZE THE PROBLEM BUT HAVE YET TO FIND A SOLUTION THAT PUTS POINTS ON THE BOARD.................................................. 1211 A. Missed Tackles: State Governments Look at the Issue but Are Unable to Bring Down the Blackout Rule . 1212 B. False Start: The Federal Government Acknowledges the Issue but Has Yet to Solve the Problem ......... 1215 III. BREAKING FREE FROM THE DEFENSE: A SOLUTION TO THE PROBLEM OF BLACKOUTS IN PUBLICLY FINANCED STADIUMS ............................................... 1220 IV. A FIELD GOAL IN THE RED ZONE IS BETTER THAN NO POINTS AT ALL: WHY THIS SOLUTION, THOUGH NOT PERFECT, IS BETTER THAN NO SOLUTION AT ALL ..... 1222 A. The NFL Does Not Always Get What It Wants ..... 1223 B. Tuesday Morning Quarterbacking: The Retroactivity Problem ............................................ 1224 C. Dealing with the Nitpicky Coach: Let Not Perfect Be the Enemy of Good ................................. 1225 CONCLUSION: TOUCHDOWN! ................................... 1226 APPENDIX A ................................................... 1227 APPENDIX B.................................................... 1228 1196 THE GEORGE WASHINGTON LAW REVIEW [Vol. 82:1194 INTRODUCTION When Tim Stroth purchased season tickets for the Buffalo Bills in 1989 as a Father’s Day gift for his father, Norman Stroth, the team was just about to embark upon its remarkable streak of reaching the Super Bowl in four straight seasons.1 Tim had grown up one town over from Ralph Wilson Stadium—the home of the Buffalo Bills—and the tick- ets were a perfect gift for his father, who was a lifelong Bills fan.2 Beginning in 1989, Tim and Norman enjoyed the golden age of Buf- falo Bills football, taking in the games as father and son each week and cheering their hometown team to victory.3 Even when the Bills stopped winning and endured a thirteen-year playoff drought, Tim and Norman continued to support their team, spending approximately $30,000 over the next two decades on tickets, concessions, parking, and team memorabilia to watch their beloved Bills each Sunday.4 Over the past three years, however, the eighty-six-year-old Nor- man has not been able to attend games with his son due to his limited mobility.5 During that same time frame, the Buffalo Bills have been blacked out on local television eight times, because, per National Football League (“NFL” or “League”) rules, the team was unable to sell tickets for all of the seats in Ralph Wilson Stadium before the deadline of seventy-two hours before kickoff.6 Whenever these black- outs occur, the Bills game is not broadcast on local television within seventy-five miles of the home stadium, thus barring local fans from watching their favorite team play.7 As a result, fans like Norman Stroth are unable to watch their hometown team play on Sundays de- spite years of supporting the franchise. Perhaps even more troubling is that these very same fans who are prevented from watching the games unless the requisite number of tickets is sold are also the ones who are paying for the stadium. Buf- falo taxpayers are currently providing a $226 million subsidy for Ralph Wilson Stadium over the next ten years, funded through in- creases in local taxes.8 Thus, in order for Bills fans to watch games 1 Brian Murphy, Game On: Sen. McCain, Fans Battle NFL over Blackout Rule, TWINCI- TIES.COM (July 4, 2013, 12:01 AM), http://www.twincities.com/ci_23601230/game-sen-mccain- fans-battle-nfl-over-blackout. 2 Id. 3 See id. 4 See id. 5 See id. 6 Id. 7 See id. 8 Id. 2014] A DELAYED BLITZ ON THE NFL’S BLACKOUT POLICY 1197 played in the stadium that they are paying for, they must also collec- tively shell out millions of dollars to ensure that all of the tickets are purchased—to avoid a blackout. As Tim Stroth laments: “I don’t see the logic or justification for punishing fans like my dad who can’t af- ford the high cost of attending games or who simply want to watch their home team on TV, considering my local tax dollars are paying to operate it.”9 The experience of the Stroth family is one that has plagued NFL fans across the United States throughout the past fifty years.10 Al- though the number of games blacked out by the NFL has significantly dropped over the past half century (six percent of games were blacked out in 2011 compared with ten percent of games in 2010, twenty-five percent in 1998, and nearly sixty percent of games in 1975),11 fans are still barred from watching their home team play on television within seventy-five miles of the stadium anytime an insufficient number of tickets is purchased before the game.12 Notably, the number of black- outs appears ready to rise again due to a 4.5% decrease in total at- tendance at NFL games over the past five seasons, signaling that fans will be further prevented from watching their home teams play on Sundays.13 Although NFL blackouts themselves are undesirable for fans, they truly become problematic when they take place in stadiums that have been funded by taxpayer money. As a recent article noted, “[t]he NFL can continue, as always, to keep certain games off local television no matter how much public money went into a privately- owned stadium.”14 The enforcement of the NFL’s current blackout policy in stadi- ums built with taxpayer dollars imposes a double punishment upon loyal NFL fans: fans are prevented from watching a game played in a stadium that only exists because they were forced to pay hundreds of millions of dollars in taxes to fund its construction. In order to pre- vent fans from being forced to pay increased taxes to fund stadiums 9 Id. (internal quotation marks omitted). 10 Shaun Assael, NFL Fans Blacked Out, Riled Up, ESPN (Sept. 18, 2012, 4:17 PM), http:// proxy.espn.go.com/espn/otl/blog/_/name/assael_shaun/id/8395985/f. 11 Mike Florio, Blackouts Are Far Less Common Than They Used To Be, NBCSPORTS PROFOOTBALLTALK (July 13, 2012, 10:36 AM), http://profootballtalk.nbcsports.com/2012/07/13/ blackouts-are-far-less-common-than-they-used-to-be/. 12 Kevin Clark, Game Changer: NFL Scrambles to Fill Seats, WALL ST. J., June 30, 2012, at A1; infra notes 19–21, 69–72 and accompanying text. 13 See Clark, supra note 12. 14 Dan Wetzel, Vikings Get Their New Stadium, but Fans Are Still Subjected to ‘Blackout’ Rule, YAHOO! SPORTS (May 10, 2012, 11:22 PM), http://sports.yahoo.com/news/nfl—vikings-get- their-new-stadium—but-fans-are-still-subjected-to—blackout—rule.html.