Judge Will Answer NFL’s $14 Billion Sunday Ticket Question

The National Football League will return to Los Angeles federal court Wednesday to ask a judge to set aside a $4.7 billion jury verdict in an industry-shaking case that appears bound for the US Supreme Court.

A Los Angeles jury sided June 27 with football fans who claimed the league conspired with DirecTV to raise the price of Sunday Ticket subscriptions to watch out-of-market games. The damages awarded by the jury stand to be tripled to $14 billion under federal antitrust law.

NFL attorneys accused the jury in court filings of relying on “made-up methodology” to reach its verdict, and argues testimony from two expert witnesses should have been excluded. Subscriber attorneys responded that the verdict is supported by evidence and that the jury is free to use its own calculations.

If Judge Philip S. Gutierrez of the US District Court for the Central District of California doesn’t toss the verdict and rule in the league’s favor, he’ll consider structural changes to the Sunday Ticket package and attorneys’ fees for the plaintiffs.

Gutierrez was skeptical of the evidence and lawyering by the attorneys representing consumers throughout the three-week trial, so scrapping the jury’s verdict isn’t completely out of the question, several professors told Bloomberg Law.

Still, the case is likely to go to appeal because overturning a verdict is so rare.

“It seems the case is far from over,” said Maureen Weston, a sports law professor at Pepperdine University Caruso School of Law.

The US Court of Appeals for the Ninth Circuit has already issued subscriber-friendly rulings, but Supreme Court Justice Brett Kavanaugh indicated he was skeptical that the Sunday Ticket subscribers have standing when the US Supreme Court declined to take up the case in 2020 at the motion-to-dismiss stage.

Appellate Arguments

The NFL is likely to argue before the Ninth Circuit that its collective broadcast restraints are all-together pro-competitive for consumers, said Marc Edelman, an antitrust law professor at Baruch College’s Zicklin School of Business.

The US Supreme Court held unanimously in 2010 that NFL teams can be held liable for their collective conduct under federal antitrust law, so it’s “not too surprising” that the jury found the restraints to violate the law, he said.

Based on the jury’s verdict, the NFL’s arguments “will likely prove to be an uphill battle” on appeal, Edelman said. “Do not be surprised to see the NFL attempt to settle this case before final adjudication.”

The league could also latch onto an “ambiguity” Gutierrez said he created during a conference over which numbers the plaintiffs’ attorneys could present to the jury. The per-subscriber cost the plaintiffs showed in closing arguments was significantly higher than the defense’s estimate, and went against repeated warnings by the judge not to use it during the rest of the trial.

Attorney Beth Wilkinson of Wilkinson Stekloff LLP, representing the NFL. said the day of closing arguments—without the jury present—that the judge’s move to let the figure remain before the jury was “prejudicial.”

“That certainly sounds like an appealable issue,” said attorney Michael Elkins of Fort Lauderdale, Fla. The league will need to argue that the mistake changed the outcome of the case, Elkins said.

Media Models

Throughout the trial, the NFL pointed to the fact that TV products are exclusive—for example, the Olympics are only available on NBC and “Game of Thrones” is only available on Max.

If the jury’s ruling against the NFL stands, this model could be challenged, said Alicia Jessop, a sport administration professor at Pepperdine University.

Plaintiffs could sue over content that is made available only through one platform.

“If I’m a lawyer for a league or a team, I’m reviewing the structure of all of my media deals today in light of this decision,” with “blinders off,” Jessop said. “I don’t think anyone at the NFL thought that this could be anti-competitive. I have a hard time believing that. I think they thought they were giving this product to the nation.”

The case is In re National Football Leagues Sunday Ticket Antitrust Litigation, C.D. Cal., No. 2:15-ml-02668, hearing scheduled for 7/31/24.