By Jeff Birren, Senior Writer
A modern twist on an old axiom is that those with the gold get sued in today’s sports’ world. A recent example just played out when two NFL fans sued the NFL and NFL Enterprises for supposedly violating federal antitrust law by allowing fans to gain free access to team updates on “X” but “barred” teams from posting on “Bluesky Social BBC.” Patrick Brown and Collin Vincent prefer to receive the identical information from Bluesky. They claimed that the defendants’ behavior was an “unreasonable restraint on trade that violated 15 U.S. C. 1”. The Court granted a motion to dismiss because the Amended Complaint “did not plausibly plead that Brown and Vincent suffered a cognizable injury in fact.” Patrick Brown and Collin Vincent v. National Football League, Inc. and NFL Enterprises, LLC, Opinion & Order, S.D.N.Y., Case 1:25-cv-01220-PAE (02-03-2026).
Background
The Court took its “Factual Background” “from the Amended Complaint” (“AC”). Brown and Vincent have Bluesky Social BBC (“Bluesky”) accounts and would follow NFL teams on Bluesky if that was permitted by the NFL. The NFL and X “have a ‘content partnership’” that “allows X to publish real-time highlights from football games”. “During the offseason, reporters post news about team practices and other related topics on X.” Fans can discuss team activities including free agency acquisitions “and other roster changes”. In 2024, there were more than one million posts concerning the annual player draft and “these appeared on users’ screens more than 800 million times.” Fans “do not pay to receive NFL news on X.”
Bluesky is “a microblogging platform that was founded to move ‘online discourse beyond the control of social media oligarchs.’” It “has more than 28 million users.” According to Brown and Vincent, “many” are “’Twitter refugees’ who left Twitter due to rapid changes to rules and culture under the ownership of Elon Musk.’” Initially, “multiple NFL teams” had accounts with Bluesky”. Bluesky “closely matches the functionality of X” and NFL teams could “’use it exactly the way they use X.’” Bluesky, like X, does not charge fans to “open accounts or view posts regarding the NFL.”
The AC does not allege when “individual teams used (or stopped using) Bluesky, or when the NFL instructed them to stop doing so.” Apparently, the NFL “instructed its member teams to delete their Bluesky accounts.” But for this instruction, “at least some NFL teams would use Bluesky.” The “Patriots vice president of content, Fred Kirsch, for example, has stated: ‘Whenever the NFL gives us the greenlight[,] we’ll get back on Bluesky.’”
Teams have accounts on other social media providers “but they tend not to use these to post the real-time updates they post on X”. The “result of the NFL’s alleged ban” on the use of Bluesky is that “Brown and Vincent must choose between receiving real-time updates uniquely available on X and foregoing such content.” This “content is important to fans who participate in fantasy football leagues” and who “compete against other, sometimes for monetary prizes, based on the players’ on-field performance.” There is no other “monetary consequence to fans from the NFL’s ban on Bluesky”, and fans “’do not pay money for their team’s news on X’ (or Bluesky), but instead ‘pay attention, which social media platforms … in turn monetize by advertising and by selling data.’”
The AC “implies” that Brown and Vincent “play fantasy football in leagues where money is at stake.” The information posted on X is “’exactly the sort of information relied upon in making decisions on fantasy football or other games of skill.’” Brown and Vincent “are injured … if they choose not to engage with X”. Brown and Vincent do not allege that they have “lost money in such leagues as a result of lack of access to real-time content uniquely accessible on X.”
In Court
Brown and Vincent filed their 14-page complaint on February 11, 2025. The AC “incorrectly terms” one defendant as “National Football League, Inc.” The NFL and NFL Enterprises each filed a Motion To Dismiss on May 13, 2025, under Rule 12(b)(1) for lack of subject matter jurisdiction, a Request For Judicial Notice, and a Declaration with 25 Exhibits (Docket Entry 30 & 31.) It also moved to dismiss “under Rule 12(b)(6)” as “the AC does not state a claim, because it does not plausibly allege a per se or rule-of-reason violation of § 1 and because Brown and Vincent lack antitrust standing.”
Brown and Vincent filed an Opposition on June 12, and the NFL and NFL Enterprises filed Reply Briefs on July 3, 2025, along with a Further Request For Judicial Notice. There the case sat silently for seven months, without oral argument. On February 3, 2026, the Court issued its “Opinion & Order.”
Motion To Dismiss: Legal Standards
Courts must grant a motion to dismiss when a plaintiff lacks “constitutional standing to bring the action.” “A plaintiff must show by a preponderance of the evidence that jurisdiction exists, and a court may consider evidence outside the pleadings, including exhibits and affidavits.” Article III “limits federal judicial power to the resolution of ‘cases’ and ‘controversies.’ U.S. Const. art III., § 2.” A “plaintiff must have standing to sue. Lujan v. Defs. Of Wildlife, 504 U.S. 555, 560 (1992).” This is a “threshold question in every federal case.” The “irreducible constitutional minimum” is that “’a plaintiff (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.’ Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).”
The injury “must be concrete”, that is, “’real and not abstract.’ Id. at 340.” The “most obvious” examples of these are “physical and monetary harms.” Financial loss is “a classic pocketbook injury sufficient” to confer standing. Certain intangible harms “can also be concrete”, including “the abridgement of free speech and infringement of free exercise of religion. See, e.g., Spokeo, 578 U.S. at 340.” Congress may also “elevate to the status of legally cognizable injuries concrete, de facto, injuries that were previously inadequate in law.” Id. at 341”. Congress’s “expectations can be ‘instructive” on whether a harm is sufficiently concrete to qualify as an injury. Id. But a statutory violation does not necessarily confer Article III standing, which ‘requires a concrete injury even in the context of a statutory violation’. Id.” “Put simply: ‘No concrete harm, no standing.’” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021).
The Asserted Injury
Brown and Vincent claimed that receiving “real-time NFL information” on a microblog is a “separate product market” from receiving the identical information on X. The information might be “days or weeks old” on other platforms and “NFL teams’ posts on X contain ‘granular and time-sensitive’ information.’” The NFL “bars teams from cross-posting this information on Bluesky.” As a result, Brown and Vincent must choose between foregoing this content, or using X, a content provider “with which they prefer not to associate”.
However, the NFL had not barred Brown and Vincent from receiving real-time information. They acknowledged that this information was available on X. The AC admitted that if the NFL were to lift its ban on Bluesky, no additional information would be available that is not currently available on X. The AC did not allege that the plaintiffs “have any freestanding legal entitlement to receive this information in real-time or otherwise—let along on any particular, platform or channel. To the contrary, it acknowledges that this information is disseminated at the discretion of privately owned and operated NFL teams.”
The imagined “conspiracy” is that Brown and Vincent have been “denied the ability” to receive the information “on a private platform with which they are ideologically comfortable with.”
“Tangible Injuries”
Brown and Vincent did not “plausibly allege” that they had suffered a monetary loss. They had not “paid more money to access the information at issue. On the contrary”, the AC admitted that it was free on X. There was a vague implication that they “could potentially make money playing fantasy football” and foregoing X “could impair their prospects of making money.” This did “not salvage plaintiff’s bid.” The Opposition “abandoned the claim that diminished odds of winning” was a cognizable injury. Allegations “’of possible future injury are not sufficient’ (emphasis in the original). Summers v. Earth Inst., 555 U.S. 488, 496 (2009).” Furthermore, Brown and Vincent did not claim that they were denied access to the information but merely were denied “access to it on” their platform of preference.
The next “attempt to claim a concrete injury” is that if the NFL allowed teams to post the information on Bluesky, they “would pay attention to it.” This would allow the NFL to “monetize” their engagement on Bluesky through “advertising and selling data. These tortured formulations do not avail plaintiffs.” Their “’attention’ is an intangible that cannot be likened to money.” Furthermore, this implies that NFL “teams are missing out on money”. This theory “is pled conclusorily.” Those teams “are not plaintiffs here.” A plaintiff “must assert his own legal rights and interests”. The AC “does not plausibly plead an injury in fact based on pecuniary or other tangible harm”
“Intangible Injuries”
“Certain intangible injuries can support Article III standing.” Brown and Vincent failed to do so. They did not assert that the “bonanza of real-time updates on X” are different in quality or quantity than those that would be posted in the absence of the alleged conspiracy. Their “grievance is instead that that they are unable to receive identical content on the social media platform that they prefer.” That does not confer Article III standing, nor did they “contend” that their “intangible injury” “resembles any injury traditionally recognized” by courts as a basis for federal court jurisdiction.
Their claimed harm was “notably less concrete than the harm” rejected in Murphy v. Missouri, 603 U.S. 43 (2024). Murphy and others sued the executive branch, claiming a violation of their First Amendment rights. Their assertion was the defendants pressured social media platforms “to suppress protected speech regarding Covid.” They claimed a First Amendment “right to listen.” The Supreme Court held that there is a “cognizable injury only where the listener has a concrete, specific connection to the speaker. Id. at 74-75.” Brown and Vincent had “not alleged an inability to receive any information.” They “merely disdain the platform on which it is available.” Perhaps Brown and Vincent forgot that this was not a First Amendment case.
Their “ideological discomfort with X does not implicate any legally protected interest.” The Article III injury-in-fact requirement “screens out” plaintiffs who “only have a general, legal, moral, ideological or policy objection. FDA v. All. For Hippocratic Med. 602 U.S. 367, 381, (2024).” The Sherman Act “is aimed at conspiracies in restraint of trade or commerce. Its focus is on collusive conduct with anticompetitive effects. See, Brunswick Corp. v. Pueblo Bowl-O-Matic, Inc., 429 U. S. 477, 488-89, (1977).” Failure to receive the information “on their preferred social media channel—is far afield from the harms to which § 1 is directed at. Such a bare claim does not give all citizens the right to sue in the absence of a distinctive concrete harm.”
The grasping search for straws continued. “Ross v. Bank of America, 524 F.3d 217 (2d Cir. 2008), the antitrust case on which Brown and Vincent principally rely, is far afield.” The Ross plaintiffs claimed that banks colluded to force credit card customers to accept mandatory arbitration provisions. The Court of Appeals ruled that “’reduced choice and diminished quality in credit card services’—satisfied the injury-in-fact requirements. Id. at 223-24 (emphasis added.)” Customers had to “expend time and legal fees to monitor the legality of the banks behavior”; received a card that limits customer choices; and was thus less valuable. “Brown and Vincent do not claim any diminution in value of a product or service.” Nor did they claim any difference in the “real-time NFL news accessible on X and that would be available on Bluesky.”
Brown and Vincent also relied on Laumann v. Nat’l Hockey League, 907 F. Supp. 2d 465 (S.D. N. Y. 2012). The Court distinguished Laumann because the allegations claimed that the video packages they purchased was due to a conspiracy that “not only resulted in less choice, but also ‘reduced output, diminished product quality, …. and suppressed price competition.’ Id. at 471.” Plaintiffs’ claim to a lack of real-time updates “is not traceable to the NFL’s conduct. It is proximately due to the fact that plaintiffs’ ‘prefer not to or refuse to’ use that platform. AC 68.” The Court cited three other cases, all to the effect that self-inflicted injuries do not confer Article III standing. “The AC therefore does not plead a cognizable Article III injury.”
“Dismissal Without Leave to Amend”
In a “single, unelaborated-upon sentence, Brown and Vincent ask for leave to amend the AC in the event of dismissal.” This is left to the court’s discretion. It can be denied in instances of futility or repeated failure to cure deficiencies by amendments previously allowed. “Both of these circumstances are present.” It would be futile because their injuries “unavoidably are not concrete. And Brown and Vincent have already amended the operative complaint once in an attempt to overcome the NFL’s arguments.” They also failed to describe a proposed new pleading that would cure the deficiencies.
“Conclusion”
The Court granted the motion to dismiss under Rule 12(b)(1) without leave to amend the AC, due to a lack of subject matter jurisdiction. Or not. Because the case was closed for lack of subject matter jurisdiction, “it is without prejudice to plaintiffs’ ability to file a new action with a proper jurisdictional basis. See Carter v. HealthPort Techs. LLC, 822 F. 3d 47, 54-55 (2d Cir. 2016) (where a complaint is dismissed for lack of Article III standing, the dismissal must be without prejudice, rather than with prejudice.” The Court did not rule on the NFL’s motion under F.R.C.P. Rule 12(b)(6) for failure to plead an antitrust violation and denied the request to take “judicial notice of certain exhibits filed in” Docket Entries 30 and 31 “as moot”.
Editorial
Please. It is easy to see this as a nuisance suit, but paying legal bills to defend this sort of thing is not just a nuisance. Whatever one’s opinions about Elon Musk, or other social media barons, the Sherman Act was directed at restraints of trade in interstate commerce that impact business competitors and consumers, not boycotts based on ideological preference. Boycott X, boycott Musk, Zuckerberg or anyone or anything else, but 15 U.S.C. 1 does not require every business to provide, for free, the same service on the platform of choice of every single member of the public.
