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The NFL may have lost the Sunday Ticket class action jury trial last month, but the league will play the long game to see it overturned.
Step one: Try to convince the presiding judge to throw out the loss.
In a motion filed last week for judgment as a matter of law or, in the alternative, a new trial, the league described the jury’s decision to award $4.7 billion in damages as “nonsensical” and “irrational” since—as the NFL sees it—jurors badly miscalculated the award by, among other things, getting “the relationship between actual prices paid and potential overcharges exactly backwards.”
The NFL also sharply criticized U.S. District Judge Philip Gutierrez for allowing a juror, who became the foreperson, to remain despite the juror possessing “an improper financial stake in the outcome of the litigation.” According to the NFL, “Juror 7” admitted during jury selection to paying for a “household member’s Sunday Ticket subscription,” but Gutierrez allowed the juror to remain since neither Juror 7 nor the household member was a member of the class action.
The NFL insists Gutierrez nonetheless erred since the plaintiffs argued the Sunday Ticket should have been cheaper “including at lower prices lower than Juror 7 currently pays for the Sunday Ticket on YouTube.” As foreperson, Juror 7 likely facilitated jury deliberations. A foreperson can influence how jurors discuss, and think about, a case.
As the NFL tells it, the jury badly fumbled the case. Noting that the $4.7 billion verdict is “among the largest in American history” and denouncing the court for greenlighting a “runaway verdict,” the NFL blasts the damages awarded for representing “the sum total of discounts that class members received.” This methodology, the NFL argues, wasn’t even proposed by the plaintiffs, bears no rational relationship to alleged harms and indicates jurors were confused about applicable math and data.
The class action represents more than 2.4 million residential subscribers and more than 48,000 restaurants, bars and other commercial establishments that purchased Sunday Ticket from 2011 to 2023. While NFL teams make their games available to local fans to watch on free TV, those teams pool their broadcast for out-of-town fans through the Sunday Ticket, which costs residents $349/year though is often purchased for less through various discounts and promotions. The plaintiffs assert that the 32 teams, which are competing businesses, agreeing to not compete in the sale of out-of-town broadcasts leads to higher prices for consumers while the NFL maintains its system guarantees access to games anywhere in the U.S. and makes games free for local fans.
Among the problems in the jurors’ alleged deficiencies, the NFL claims they used a phone calculator to invent “its own irrational” damages model. The league contends jurors calculated what they thought was an overcharge, reflecting the $191.26 difference between the list price ($294.00) and average actual price ($102.74), and then multiplying $191.26 by the total numbers of residential and commercial subscribers. The problem, the NFL argues, is that the $191.26 difference is not an overcharge but instead a discount.
The NFL also questions why the jury would pick $294 as the list price. That price doesn’t reflect the actual price paid by many consumers—with average actual prices “well below the list price”—and was only the list price for three of the 12 years represented in the class. The NFL portrays jurors as badly confused about the data, which also calls into question how well they understood the underlying legal issues.
Gutierrez draws considerable fire from the NFL as well. The judge, the league argues, compounded the jurors’ alleged misunderstanding by providing them with faulty jury instructions. The NFL says instructions endorsed by the American Bar Association and used by courts in similar cases require the plaintiffs to prove “the defendants’ competitive harm substantially outweighs any competitive benefits.” Gutierrez omitted the word “substantially”, which the NFL says plaintiffs’ attorneys “capitalized on this error, arguing [in closing arguments] that they need show only a ‘50.00000001%”’ outweighing to prevail.”
The NFL also accuses Gutierrez of erring by allowing the plaintiffs’ attorneys and experts to refer to the league losing antitrust cases against the Justice Department in the 1950s over NFL teams pooling broadcast rights. Those rulings were effectively nullified in 1961 when President John F. Kennedy signed into law the Sports Broadcasting Act, which provides an antitrust exemption to professional football, basketball, baseball and hockey leagues when they negotiate a national TV contract with a network that provides free and over-the-air broadcasting.
Although the Justice Department cases weren’t discussed substantively, Gutierrez let jurors hear that the NFL lost, which the NFL contends amounted to prejudicing the jurors. For instance, an attorney for the plaintiffs said, “When the Feds came after them in ‘60, all their conduct was out in the open. The Federal Government still came after them. They were found to have violated the antitrust laws, and then they went to Congress to use their political power to get an exemption. That’s the way the stuff really worked out.”
Gutierrez will hold a hearing on July 31 to review the NFL’s motion. His options include (1) ruling for the NFL, meaning he concludes the jury’s decision was irrational, (2) ordering a new trial; (3) sustaining the jury’s verdict but reducing the damages award, or (4) fully denying the NFL’s motion. Gutierrez could issue a ruling that day but will more likely issue one through a written filing in the weeks that follow.
If the judge doesn’t rule for the NFL or grant a new trial, the league will ask that the verdict be stayed pending appeals. A stay would mean the NFL need not take any action until the league exhausts its right to appeal, which would begin in the U.S. Court of Appeals for the Ninth Circuit and potentially land in the U.S. Supreme Court.
The NFL’s numerous critiques of Gutierrez’s handling of the trial are crucial for the potential appellate process. The league needs to raise objections at this stage to be able to raise them on appeal, otherwise the NFL would waive the chance.
While the litigation, which began in 2015, could last several more years as an appeals process plays out, it’s also possible the NFL and plaintiffs negotiate a settlement. As detailed by Sportico, Major League Baseball and the National Hockey League negotiated settlements nine years ago for class actions involving similar broadcasting issues.