01/10/2014 10:02 am ET Updated Mar 12, 2014

Offsides: A Better Bargain for the American Football Fan

On one of the most exciting sports weekends of the year, Americans across the country were treated to three NFL playoff games that were decided in the final two minutes of the fourth quarter; two of those games ended with field goals as time expired. In the third game, fans in Indianapolis saw their Colts and quarterback Andrew Luck storm back from 28 points down for the second largest come-from-behind victory in NFL playoff history. Just hours before kickoff in Indianapolis, those same fans were facing the very real possibility that the game would not be shown locally at all because of the NFL's arcane blackout rules. But for last-minute tickets purchases by two local grocery stores -- which then donated the tickets to military families -- Colts fans would have been in the dark while the rest of the country followed the historic comeback.

Football occupies a special place in American culture. The NFL generates billions of dollars, thousands of jobs, and critical economic activity in multiple industries. The Super Bowl is the highest-rated event on television, and last year the NFL playoffs collectively accounted for the 10 most-watched sporting events of the entire year.

Sports fans power this media and merchandizing juggernaut by purchasing tickets and apparel, watching games on TV and supporting their teams through thick and thin. However, the league threatens fans with blackouts if their teams don't sell out their stadiums 72 hours in advance. As ticket prices soar, the NFL blackout policy punishes fans in cities hit hardest by the economic recession -- cities with declining populations and large stadiums to fill. It is time for the NFL to get rid of this outdated policy and treat their fans better.

The success of the NFL is not by accident. For half a century, federal, state and local governments have enacted laws and regulations designed to sustain, protect and promote professional sports. In the early 1960s, Congress enacted a special exemption from federal antitrust laws allowing professional sports leagues to collude when negotiating broadcast television deals. The NFL does not pay federal taxes because they enjoy a special non-profit tax status in the Internal Revenue Code. Billions of taxpayer dollars, often in the form of special municipal bond issuances, have helped to pay for sports arenas and stadiums coast to coast.

All of the public largesse showered on sports at the request of leagues, owners, merchandizers and other enterprises surely was enacted with great fanfare about the benefit to the everyday team supporter. Too often, however, the fans get the short end of the deal, paying more and getting less, sometimes getting nothing at all.

When ticket sales constituted a much larger proportion of team revenue than they do today and team owners were concerned that locally televised games would depress ticket sales, the NFL devised a policy that a local game could not be broadcast if the stadium had not sold out 72 hours before kickoff. Congress supported this practice with a special antitrust exemption allowing the local blackouts. The Federal Communications Commission (FCC), without any congressional authorization, created the so-called sports blackout rule to ensure that a league's local blackout would be enforced by cable and satellite companies.

Economic and demographic realities, combined with escalating ticket prices, have unfortunately led to a concentration of local sports blackouts in communities particularly hard-hit by the last recession. Cincinnati, Ohio, where taxpayers helped to build the Bengals' stadium, saw six of their eight home games blacked out in 2011 and now could face the same fate during their first playoff game on Saturday. That same year, 71.4 percent of games in Tampa Bay, 37.5 percent of games in Buffalo, and 25 percent of games in San Diego were blacked out. A city like Buffalo with one of the larger stadiums and smaller populations in the NFL (74,000 seats, representing 28 percent of the local population), sells out less frequently than Soldier Field in Chicago where the 61,500 seat arena represents two percent of the population. The result is more blackouts in places like Buffalo.

Created with the intent of making the league sustainable, blackout policies today punish fans rather than encouraging attendance. With the average NFL ticket costing about $80, many fans who have not recovered from the recession simply cannot afford to attend. Among the thousands of comments recently submitted to the FCC on the question of whether to maintain the sports blackout rule, one disabled Vietnam veteran said that his post-traumatic stress disorder prevents him from attending a game at all; the local blackout simply deprives him of watching his local team on TV.

It is time to improve the deal for fans.

I have proposed a fundamental change in how the public subsidizes sports, called the FANS Act. If professional sports leagues want to continue enjoying their antitrust exemptions, they should have to earn them through better treatment of the consumer. The leagues can meet some basic obligations to the fans, or lose their anti-trust exemptions. The choice is theirs.

I hope my legislation will spark a real debate about the proper role of government in the sports economy and whether bestowing Americans' public resources on the leagues should come with strings attached to benefit fans. If the public is footing the bill for stadiums and league largesse, fans should not spend the hours before kickoff worrying whether they will see their home team take the field.