The NFL has tried (with, at times, some success) to persuade the courts that the Sunday Ticket antitrust class action should be dismissed. The latest paperwork filed by the league focuses on the manner in which a jury in a Los Angeles federal court came up with its $4.7 billion verdict.
In the NFL’s renewed motion for judgment as a matter of law, which PFT has obtained and reviewed, the league focuses heavily on the failure of the jury to adopt the financial methodology proposed by the plaintiffs’ expert witnesses and, in turn, the jury’s decision to come up with its own calculation as to the damages suffered by the two classes in the litigation — more than 500,000 commercial establishments and more than 2.4 million residential customers.
For any civil case, the plaintiff must first prove liability on the part of the defendant. Then, the plaintiff must show the extent to which the conduct of the defendant caused economic harm. Thirty eight years ago this month, a jury found that the NFL had violated antitrust laws as to the USFL, but that the USFL had proven no damages. The verdict, then, was one dollar.
Coincidentally (or not), the NFL’s latest filing in the Sunday Ticket case specifically requests at page ii of its latest motion that the court “reduce the irrational and improper damages award to nominal damages of $1.”
In this case, the plaintiffs offered two possible models for determining the financial losses resulting from the NFL requiring DirecTV to overcharge for Sunday Ticket. The NFL argues that the jury ignored those formulas and instead came up with its own.
The NFL contends that the jury took the list price for the basic Sunday Ticket package in 2018 and 2019 ($294) and subtracted $102.74, which according to the NFL was the average price actually paid by residential subscribers during the class period. The jury then, under the NFL’s argument, multiplied the difference of $191.26 by the number of commercial subscribers and residential subscribers in the class.
The math works out to the penny for the residential class ($191.26 times 24,105,049, which equals $4,610,331,671.74) and is only two cents off of the amount awarded to the commercial class ($191.26 times 506,788, which equals $96,928,272.88.)
“The jury instead did precisely what the Court expressed concern about during deliberations — working ‘with [their] phone calculator[s] creating [a] model,’” the NFL explains. “Although the jury did not detail the basis for its calculations, its highly specific damages figures leave no doubt what it did.”
So, basically, the jury ignored the evidence presented by the plaintiffs and made up their own damages award. The NFL argues that this requires the verdict to be rejected by the court.
Although the plaintiffs will have a chance to respond to the NFL’s latest filing, it seems to be (at least for now) the strongest argument the league can make.
Of course, that doesn’t stop lawyers (especially those paid for their services by the hour) from stuffing the cannon with as many other arguments as possible. Here, the NFL jams plenty of other arguments into its 25-page brief.
First, the NFL argues that the plaintiffs concocted a theory based on price-fixing at the eleventh hour, with the case previously focusing on the concept of pooling and exclusivity.
Second, the NFL claims that various critical documents were introduced via improper application of Rule 806 of the Federal Rules of Evidence. (At the risk of going full law nerd, Rule 806 allows hearsay evidence to be used to impeach the credibility of admitted hearsay evidence and/or evidence excluded from the definition of hearsay.)
“In all, twenty-two documents were admitted under Rule 806, and were the core of Plaintiffs’ purported evidence of ‘price-fixing,’” the NFL explains at page 15 of its brief. “Plaintiffs also relied heavily on those documents not for impeachment, but instead for their substance. Indeed, the Court twice sustained objections to Plaintiffs’ substantive use of these documents in closing. . . .”
Third, the NFL contends that the so-called “rule of reason” under antitrust law was improperly applied. It gets complicated and murky, but the argument boils down to the failure of the court to include one key word — “substantially” — in one of the instructions to the jury. The NFL believes that the jury should have been told that it must find harm to competition “substantially” outweighs competitive benefits, and that the plaintiffs seized on this mistake by arguing during closing that they needed to show only a “50.00000001 percent” outweighing of competitive benefits in order to prevail.
Fourth, the NFL seeks a new trial, on several technical grounds: (1) the court allegedly failed to instruct the jury on the plaintiffs’ burden to prove injury to the entire class; (2) the rebuttal testimony from one of the plaintiffs’ witnesses was improper; (3) the court allowed the plaintiffs to introduce evidence of prior litigation against the NFL; (4) the verdict is against the clear weight of the evidence — with eight different arguments offered in support of this one point; and (5) the foreperson of the jury had an impermissible bias because that juror paid for a household member’s Sunday Ticket subscription in 2023, outside the class window.
On one hand, the smattering of arguments beyond the attack on the damages calculation dilutes the impact of the brief. On the other hand, the NFL’s lawyers (and their malpractice insurance carriers) would prefer to leave no plausible stone unturned, when it comes to preserving arguments for appeal.
Again, with more than $14 billion on the line, this one will be appealed to the highest court in the land. For now, the trial court has in its lap the threshold challenge to the biggest civil verdict any American sports league has ever absorbed.
Next, the plaintiffs will submit their written paperwork, which will surely contradict the NFL’s brief on every point the league has made. Then, the league will submit a reply brief.
Finally, three weeks from tomorrow, the court will hear oral arguments on the question of whether the verdict should be thrown out or dramatically reduced.