When Philadelphia lawyer Ned Diver needs a break, he wanders down the hall to a workout room with stationary bikes, free weights, and a wall-mounted mat that he peppers with hockey pucks.
And while Diver takes slap shots at the blue makeshift target, sweat beading on his brow, the 44-year-old lawyer can look out the window of the 41st floor in the Bell Atlantic tower and see the offices of one of his chief legal adversaries: Comcast Corp.
A partner with the boutique firm Langer Grogan & Diver P.C., Diver is the lead attorney in a consumer proposed-class-action lawsuit against Major League Baseball, the NHL, and regional sports networks, including those owned by Comcast and DirecTV.
The suit claims the leagues, teams, and pay-TV companies have engaged in an illegal cartel to geographically divide the country into territories for broadcasting the games on TV and streaming them over the Internet.
The practice has carved the sports market into regional monopolies for the benefit of the leagues, teams, and regional sports networks, the suit says.
"It's a classic division of the market," said Diver, a Boston native and sports fan who tracks some of his interest in the topic to the fact that Red Sox games were blacked out of his DirecTV service when he first came to Philadelphia.
"It would be like Genuardi's agreeing to take the Philadelphia grocery market and Acme taking the suburbs and the two supermarket chains not having to compete on price," Diver said.
Sports teams should be allowed to sell their games to sports fans in any TV market. This would bring down the price of sports content on the Internet and cable for tens of millions of consumers, Diver said.
A goal of Diver's suit would be to allow a sports fan to strike a relationship with a favorite team or teams without having to buy a cable package or a league package of unwanted games. Another goal would be to dismantle the restrictions on how teams distribute their games on pay-TV systems.
The leagues and other defendants have lined up powerful firms to defend their practices and called the suit's claims meritless.
"Plaintiffs' complaint is simply that they would 'prefer' different packaging of the very same games already available to them," the defendants wrote the court. The demands, they said, "are legally baseless, have been rejected by prior courts, and should be dismissed in their entirety."
But the case, filed in early 2012, has cleared its first major hurdle: a motion to dismiss by the defendants. Judge Shira A. Scheindlin of the federal court in the Southern District of New York denied the motion in December while limiting the lawsuit's scope. The case now faces the legal obstacle course of summary judgment, class certification, and a trial.
David Goodfriend, a Washington lawyer and chairman of the Sports Fans Coalition, a nonprofit advocacy organization, said, "The fact that the case got this far is significant." By this point, he said, cases are typically settled, dismissed, or languishing.
Diver's suit uses in its complaint statements by pro teams themselves.
A 1998 lawsuit by the New York Yankees said Major League Baseball was "a cartel that has exceeded the boundaries of necessary competition."
The suit, New York Yankees Partnership and Adidas America Inc. v. Major League Baseball Enterprises Inc., was settled before a trial.
Madison Square Garden L.P., the owner of the Rangers hockey team, claimed in a lawsuit that the NHL was a cartel and that the league's televising and streaming restrictions were anticompetitive and unlawful, Diver's suit says. This also was settled. Terms were not made public.
Diver and his team of plaintiffs lawyers are gathering facts and intend to depose Bud Selig, the commissioner of Major League Baseball, and Gary Bettman, commissioner of the NHL, over the next several months.
"Everyone concedes," Diver said, "that cable-television costs are shooting through the roof and everyone concedes that sports costs are the primary problem."