It wasn’t 12 Angry Men. It was five men and three women. And they weren’t angry at each other; they were pissed at the NFL.
In the aftermath of the $4.7 billion statement of their disapproval of the league’s antitrust violations, the NFL has argued that one of the eight jurors was biased.
At the end of a sawed-off shotgun blast of arguments attacking anything and everything about the outcome, the NFL argued that the juror who became the foreperson “had an improper financial stake in the outcome of the litigation but was allowed to remain on — and lead — the jury.”
The alleged financial stake comes from the fact that the juror pays for a family member’s Sunday Ticket subscription, but that the family member isn’t part of the class. (The purchase happened in 2023, after the package moved from DirecTV to YouTube. The class covers 2011 through 2022.)
First of all, the fact that the juror became the foreperson is irrelevant. One of them had to be the foreperson. The question is whether the juror should have been on the jury at all, not whether the juror should have been on the jury but not the foreperson.
Second, the argument has appeal, on the surface. With a $4.7 billion verdict covering the final 12 years of the NFL-DirecTV relationship, it’s obvious that the first year of the NFL-YouTube arrangement will be attacked under the same argument. The outcome of this case becomes the blueprint for the next case that could benefit that juror.
Third, the NFL still has a problem. As pointed out in the plaintiffs’ response memo, the NFL had a peremptory challenge that it could have used on the juror in question. It didn’t.
There are two ways to get a juror excused. One, to show the juror has bias and should be stricken for cause. Two, to use a peremptory challenge. (Both sides have a set number to exercise before each case.)
A lawyer not using a peremptory challenge is like a coach not using a timeout. They don’t carry over. In this context, it’s hard to argue that a biased juror slipped through the cracks when the NFL could have remedied the situation with its remaining peremptory strike.
It’s unclear why the NFL kept the remaining peremptory strike in its back pocket. Regardless, the league had the power to dump the juror but it failed to do so.
That’s one of the biggest problems with making every possible argument when ending up on the wrong end of a big verdict. Certain arguments point not to legal error but to lawyer error.