The hay is in the barn. For the most part.
As the NFL tries to overturn a $4.7 billion antitrust verdict due to alleged (and, as far as the jury was concerned, proven) price gouging as to Sunday Ticket in order to boost local-market ratings for CBS and Fox games, all written materials have been submitted. On Wednesday, the NFL filed a 12-page reply brief attacking the verdict.
That’s how it goes in situations like this. The party seeking to change the status quo submits an initial memorandum of law. The other party responds. Then, the party that filed the motion gets the last word.
The NFL’s latest filing plows no new ground; it simply restates the position that the verdict should be thrown out, and it uses sharp, blunt language to call the plaintiffs’ position wrong. Along the way, the NFL refers to the work of the jury as “nonsensical.”
Here’s what happens next, before or after next Wednesday’s hearing. The presiding judge, Philip Gutierrez, will ask one or more of his law clerks to come up with a persuasive patchwork of legal principles allowing him to do whatever it is that he wants to do.
That’s far more common that most realize. Decisions are reverse engineered, with the judge working from the end of the maze back to the entrance.
So what does the judge want to do? More clues will be provided when the issue is argued in court, only six days from now. The 2,506-page transcript contains several examples (I’ve made it to page 1,460) of the judge being frustrated with the way the plaintiffs presented their case. Will that be enough to get him to throw a potential $14.1 billion judgment out the window?
The NFL says the jury rejected the plaintiffs’ expert testimony as to the amount of damages. The plaintiffs say that the jury fairly and reasonably compromised, finding a number that seemed far below the $7 billion figure that was presented, based on a world in which the NFL didn’t violate the antitrust laws and all games were televised by widely available network and cable channels.
In supporting their positions, both sides have weaved a tapestry of snippets from past cases involving similar principles and dynamics. It amounts to taking pieces from many different puzzles and crafting a brand new one. What matters now is which jigsaw looks more jaunty to the judge.
It’s a little depressing, I know, to realize that the law isn’t as formulaic and predictable as most would believe. The reality is that questions like this aren’t about the journey. They’re about picking a destination and finding a way to get there that will have a chance of surviving the appeal process.
That’s the other big point to remember. With $14.1 billion hanging in the balance, this case will be pursued through the appellate system, first at the U.S. Court of Appeals for the Ninth Circuit and then at the U.S. Supreme Court — starting with an effort to get the Supreme Court to even take up the case.