Civil trials can have two kinds of witnesses: (1) fact witnesses, who talk about events relevant to the controversy; and (2) expert witnesses, who offer relevant opinions based on their education, training, and experience.
The plaintiffs in the Sunday Ticket class action had their $4.7 billion verdict (and $14.1 billion judgment) thrown out on Thursday because Judge Philip Gutierrez decided the opinions provided by the plaintiffs’ expert witnesses regarding financial damages were not reliable.
That’s what happened, in the simplest possible nutshell. The judge, who knew what the experts would say and allowed them to say it, threw out the expert testimony after the jury issued its verdict.
So why let them testify in the first place? Why waste everyone’s time (including the jury’s) by conducting a four-week trial if the judge believed the opinions of the expert witnesses were insufficient?
The challenge in any antitrust case is to take the real-world expenses arising from antitrust violations and conjure a hypothetical world in which the antitrust violations didn’t happen. It’s not going to be easy to do, especially when (as in this case) the NFL didn’t offer its own but-for world but instead fought aggressively against anything/everything the plaintiffs suggested.
Dr. Daniel Rascher, one of the expert witnesses whose testimony was allowed until it wasn’t, crafted a model based on the NFL ditching Sunday Ticket and selling the out-of-market games to various networks that would broadcast the feeds from CBS and Fox.
It’s a simple concept. In each market, CBS and Fox would deliver the games that they always have. Steelers in Pittsburgh. Packers in Milwaukee. Falcons in Atlanta. Dolphins in Miami. Etc. Etc. Then, in each market, the other games would be delivered through a collection of networks and/or cable channels — NBC, ABC, ESPN, ESPN2, FS1, USA, NFL Network, and/or TNT.
The end result could have taken that form, or others. Ultimately, it would have been up to the NFL and the broadcast partners to figure out a world that didn’t violate antitrust laws.
How could anyone know what the NFL would do if it couldn’t sell Sunday Ticket in its current form? In this case, the plaintiffs tried to prove what a world without antitrust violations would have looked like. And the judge was either unwilling or unable to comprehend that, without Sunday Ticket, the NFL might have come up with a no-extra-charge distribution of games on up to nine or 10 different networks at 1:00 p.m. ET. Or maybe the league would have decided to start Sundays with a game at noon and another at 12:30 p.m. ET and another one every half hour, rolling throughout the day and allowing fans to watch any, some, or all of each game.
Judges often solve the maze of facts and law in a given case by picking a preferred destination and working backward. Here, it’s clear that the judge didn’t want the plaintiffs to prevail. But he didn’t throw the case out before the verdict, because he thought the jury might save him from having to do so. After the verdict was returned, he had no choice. To get to where he wanted to go, he had to throw out the entire case.
The flaws in the judge’s thinking are peppered throughout his 16-page opinion. For example, at footnote 6 on page 7, he writes that “Dr. Rascher’s solutions were contradicted by the record. Sean McManus, President of CBS, testified that CBS would not share its feeds with competitors . . . or let those networks ‘advertise however they wanted’ with their feeds.” That testimony from McManus was purely speculative and self-serving. If the NFL told CBS that, in order to televise in-market games in more than 200 markets throughout the country, it would have to share out-of-market feeds with other networks, CBS would piss and moan but ultimately do it. We know that because that’s what CBS has done with Sunday Ticket, ever since CBS returned to the NFL broadcast fold in 1998.
CBS hates Sunday Ticket. CBS wishes Sunday Ticket would die. And CBS tolerates the existence of Sunday Ticket, giving DirecTV (and now YouTube) the CBS feeds.
But Judge Gutierrez accepted the hypothetical contention of an executive who doesn’t even work at CBS any longer as gospel truth. To use a technical legal term, that’s bullshit.
Remember, the judge didn’t find that the jury improperly concluded that Sunday Ticket violates the antitrust laws. He specifically found that there was enough evidence to justify the verdict as to the issue of liability. He threw the verdict out because he determined that the expert witnesses he allowed to testify weren’t reliable.
And so millions of consumers who paid too much for Sunday Ticket (like me and maybe like you) are left with a finding that it violated the antitrust laws but with no way to obtain compensation for 12 years covered by the class, because the judge decided that the expert witness testimony was insufficient — after he decided that it good enough.
It makes no sense. None of it. And given the news that the judge is retiring in October, he’s arguably not concerned about the case being reversed and remanded for a new trial on damages. It won’t be for him to clean up the mess, if/when an appeals court sends the case back — as the appeals court already has done, after another judge dismissed the entire case.
