It’s not often that sports businesses petition to join lawsuits as defendants in a multimillion-dollar lawsuit, but ESPN has successfully done so.
U.S. Magistrate Judge Thomas O. Farrish last Friday granted ESPN’s motion to intervene in Diesa & Toback v. WWE, a case brought by two adults, Michael Diesa and Rebecca Toback, who accuse WWE of violating the Connecticut Unfair Trade Practices Act (CUTPA) and conspiring with ESPN. The plaintiffs allege the conspiracy involved requiring consumers to make additional payments to access ESPN’s new direct-to-consumer streaming service and WWE premium live events, which until last year could be streamed on Peacock for an $11 monthly fee.
Diesa and Toback, who subscribed to ESPN via Xfinity and YouTube TV, respectively, sued in January. They contend that WWE’s decision to move its content from Peacock to ESPN is legally problematic because of how viewers were informed about the transition.
Seeking to have their case certified as a class action on behalf of all people who subscribed to ESPN’s new DTC service between Aug. 6, 2025, and Sept. 20, 2025, and who paid a monthly subscription fee, Diesa and Toback accuse WWE of making “deceptive” statements, both orally and in joint WWE-ESPN press releases.
These comments allegedly led the plaintiffs to believe that anyone who already subscribed to ESPN would be able to access the DTC service and PLEs at no additional cost.
For instance, the complaint quotes WWE president Nick Khan as saying last August that “with what has been referred to as ESPN flagship, you subscribe to that product, you get WrestleMania, SummerSlam, Royal Rumble, all of our other Premium Live Events with no upcharge.”
The complaint filed by Diesa and Toback contends damages exceed $5 million. The two plaintiffs argue that the transition from Peacock to ESPN meant they would need to pay a separate fee to watch Wrestlepalooza. Their complaint cites an increase from $11 a month for Peacock to $29.99 a month for the new DTC service, and the $29.99 price rising to $35.99 after a promotional period ended.
Much of the complaint accuses ESPN of wrongful conduct, including alleged participation in a conspiracy with WWE, with ESPN allegedly making “material, deceptive, and false public statements concerning the availability of the DTC Service and its PLEs.”
But ESPN wasn’t named as a defendant, and the complaint explains the plaintiffs don’t want ESPN as a party to the suit.
A likely reason is that the Disney+, ESPN and Hulu subscriber agreement contains an arbitration provision and a class-action waiver. If enforced, those provisions could result in the claims being compelled to arbitration, a private dispute resolution process, rather than litigated in court, which is public. Enforcement would also foreclose the possibility of a class action on behalf of potentially thousands of subscribers seeking compensation for allegedly paying more than they expected to watch wrestling.
ESPN moved to intervene as a defendant, primarily for what it argues are two “direct, substantial, and legally protectable interests.”
First, the company asserts an interest in enforcing its arbitration provision and preventing efforts to “circumvent it.”
Second, ESPN maintains it has a protectable legal interest in “defending itself against … allegations” that it broke the law.
Farrish agreed with ESPN. He noted that ESPN has a clear stake in the litigation, particularly because Diesa and Toback accuse the company of violating the law.
“Although they sued only WWE,” Farrish wrote of Diesa and Toback, “the plaintiffs will necessarily be seeking a legal determination that ESPN violated CUTPA” and was involved in an illegal conspiracy with WWE.
Farrish further agreed with ESPN that the company is at risk, because CUTPA liability, which can include punitive damages, carries “significant exposure,” and Diesa and Toback want their case to be certified as a class action.
The judge also determined that Diesa and Toback haven’t “credibly identified” how they would suffer “prejudice” if ESPN joins as a defendant.
While the plaintiffs assert that ESPN’s intervention would “inject collateral issues” because ESPN would argue that the claims should be sent to arbitration, Farrish pointed out that WWE is already making the same argument by citing the same arbitration provision in the Disney+, ESPN and Hulu subscriber agreement.
“There is no reason to suppose that ESPN’s corresponding arguments will meaningfully add to the Plaintiffs’ burdens or delay the resolution of their claims,” the judge wrote.
Given the migration of live sports content to streaming, expect to see other disputes about statements made by company officials regarding how much fans will have to pay to watch. In that same vein, arbitration and class action waiver clauses could become potent defenses for sports media companies when accused of deceiving subscribers.
