Two weeks ago, the NFL filed paperwork aimed at scrapping the $4.7 billion verdict in the Sunday Ticket case. The response from the plaintiffs will be filed very soon, perhaps imminently.
The latest brief submitted by the NFL focuses heavily on the question of damages, attacking the verdict as a rejection of the calculations offered by the plaintiffs and a made-up formula literally thumbed into an iPhone.
The league’s argument carries some inherent appeal. The plaintiffs submitted two formulas, through their so-called expert witnesses. The jury adopted neither, coming up with their own number that, as explained in the NFL’s brief, represented the difference between the list price for the basic Sunday Ticket package in 2018 and 2019 ($294) and the average price actually paid by Sunday Ticket subscribers during the class period ($102.74), multiplied by the members of the two classes, commercial and residential.
The counter likely will be that the final number of $4.7 billion fell in the range created by the plaintiffs’ experts. The high end ($7 billion) was based on a world in which the NFL’s teams had sold the out-of-market games to various cable channels, resulting in the games being distributed to all plaintiffs (and the rest of the world) at no extra cost. The low end came from an effort to envision a reality with at least one competitor for the exclusive approach the league applied in giving Sunday Ticket to DirecTV.
The challenge in any case like this is to create an alternate universe in which the defendants did not commit antitrust violations. It’s not going to be perfect. It takes a crystal ball. It requires guesswork. And facing that ambiguity should be one of the consequences for parties that violate federal antitrust laws.
How fair would it be if the defendants were permitted to pick apart all efforts by the plaintiffs to demonstrate the specific economics that would have unfolded if the defendants hadn’t violated antitrust laws? Here, the plaintiffs introduced sufficient evidence to establish a $7 billion ceiling. The jury opted for something far lower than that.
That’s not uncommon in civil actions. In employment cases, for example, the plaintiff introduces evidence of lost wages before trial (which are easy to calculate) and lost wages from the date of trial through whenever the plaintiff would have naturally left the company, reduced to present value. That’s known as “front pay,” and it is inherently fuzzy and messy.
Juries often make their own guesses at how long a plaintiff would have continued to work, if the plaintiff hadn’t been fired in violation of some applicable legal principle (e.g., discrimination, retaliation). If, for example, the plaintiff is 42 and the expert witness calculates future losses through 65 reduced to present value, the jury is entitled to come up with a number based on working at the company through some lesser age — 50, 55, 60, etc.
As a practical matter, it gives the jury room to compromise. And it happens all the time. So, in this case, the plaintiffs put in evidence of $7 billion in losses. The jury opted to award $4.7 billion. The argument could/should/perhaps will be that the jury is fully entitled to come up with a formula for getting to that number, even if the number is highly specific and was never presented to them by the plaintiffs’ expert witnesses.
Ultimately, the judge will have to decide whether to let the outcome stand. If/when he converts the verdict to a judgment, $4.7 billion becomes $14.1 billion under the antitrust laws.
Tripling of the verdict is one of the specific consequences to those companies that commit antitrust violations. Why shouldn’t another consequence be the possibility that, in reverse-engineering what something should have cost without antitrust violations, there will be blurred lines and bargaining by the jury?