As the presiding judge ponders whether to dump the Sunday Ticket class action based on his belief that the plaintiffs’ lawyers are screwing the pooch (it’s an industry term), plenty of facts point to the notion that the NFL deliberately rigged the price of the out-of-market Sunday Ticket package to protect the CBS and Fox in-market packages.
Plenty don’t.
Former CBS Sports chairman Sean McManus supplied some facts for the “don’t” category on Tuesday, in two significant respects. Via Craig Clough of Law360.com, McManus flatly denied the fundamental questions of whether he knew that the NFL controlled the price charged for Sunday Ticket or whether CBS had a side deal with the NFL to ensure that the price would be kept high enough to prompt plenty of fans to instead watch games on their local CBS and Fox affiliates.
As is the case in many civil actions that require one side to pierce through the that’s-our-story-and-we’re-sticking-to-it proclamations from the defense perspective (I addressed that dynamic during Tuesday’s #PFTPM, regarding the Jim Trotter lawsuit), the witnesses shout “no, no, no” while other evidence potentially whispers “yes, yes, yes.”
For example, in 2011, McManus sent an email to NFL executives explaining that CBS “need[s] clarification” on Sunday Ticket pricing, because the “concept” of the package was for it to be “sold at a premium” and to “limit distribution.”
In a pre-Orwellian world where inconvenient facts aren’t routinely ignored, this would be a smoking gun, a “gotcha” document that undercuts the predictable denials on the most obvious yes-or-no questions of whether the pricing fix was in.
McManus also agreed that he would have preferred Sunday Ticket not exist at all, because it impacted the CBS ratings for free, over-the-air TV. (McManus testified, via Joe Flint of the Wall Street Journal, that CBS used to be compensated for the use of their feeds on Sunday Ticket, but that this no longer is the case. That’s another reason to not like the Sunday Ticket product.)
The official response to the McManus email is that the league never specifically promised that Sunday Ticket will carry a certain price, in order to guarantee limited distribution. This points to the possibility of a side deal, or at a minimum a gentleman’s understanding, that the league would indeed keep the price high enough to suppress Sunday Ticket subscribers, thereby boosting the value of the CBS and Fox packages.
That makes it even more important for everyone on the NFL-CBS-Fox-DirecTV side to stick to the official story. It’s not perjury in the classic sense, if there was indeed a side deal. It’s institutional lying, baked into the not-uncommon practice of people having conversations that never happened. Once the parties agree a conversation never happened, they often feel inclined to put that oath over telling the truth, the whole truth, and nothing but the truth — if it ever comes to that.
There’s also a chance that there was no side deal, because everyone was smart enough to know what needed to be done without it. Why else would the NFL have not at least experimented at some point over the last 30 years with the possibility of giving fans more choices and greater flexibility by (for example) accepting ESPN’s offer to make the full package available for $70 per year and to create a one-team-at-a-time option?
The judge has chided the plaintiffs’ lawyers for overcomplicating the case. The case is complicated due in part to the fact that the NFL has tightly circled the wagons, offering up bottom-line positions that defy common sense and that force the plaintiffs’ lawyers to constantly chase the truth by reminding witnesses of things said in writing, and by getting jurors to focus on the core questions.
As we see it, this is what really matters:
Why has the price for Sunday Ticket always been so high?
Why has a single-team option never been available, even though the NFL markets Sunday Ticket specifically to displaced fans who can’t see their favorite teams’ games?
Why wouldn’t the NFL simply take the biggest check it can get for Sunday Ticket and let DirecTV (now YouTubeTV) charge whatever they want for it?
Nothing happens spontaneously or accidentally for the NFL. The truth is, and has been, hiding in plain sight for 30 years. The NFL wants to ensure that plenty of people will say, “Too rich for my blood” and just watch the games available on their local Sunday afternoon affiliates.
In her opening statement, NFL lawyer Beth Wilkinson said, “The case is about choice.” She then said, “We want as many people as possible to watch the free broadcasts.”
Both can’t be true. If it’s about choice, Sunday Ticket would be cheap. If it’s about maximizing the audience for the free broadcasts, Sunday Ticket would be expensive.
Since it’s expensive, common sense says that boosting the CBS and Fox ratings are the driving force. Which points directly to an express or implied agreement with CBS and Fox and DirecTV to rig the price in order to enhance the ratings for the free broadcasts.
Maybe that’s why the judge is getting upset. This really is a simple case. But the biggest challenge for lawyers who are doing battle with no-stone-unturned, $1,500-an-hour-or-more defense counsel is to not take the over-lawyer-the-case cheese.
It currently looks like the lawyers representing the class that’s attacking Sunday Ticket are munching on a block of cheese the size of a car battery.