On the fifth day of the Sunday Ticket trial, the plaintiffs started to show the financial costs of the league’s alleged (and accepted, by the jury) antitrust violation.
They called to the stand Dr. Daniel Rascher, a professor who teaches courses in sports economics, sports finance, and applied research methods at the University of San Francisco. Rascher ultimately introduced the notion that the price gouging for Sunday Ticket cost the commercial and residential class members a total of $7 billion.
His number came from an attempt to envision a world in which the NFL’s teams sold their out-of-market rights to the networks that don’t have in-market packages. That could have, in Rascher’s opinion, created a college football-style situation on Sundays, with a bunch of games on the various major broadcast and cable networks on every given Sunday.
So, instead of having only the hand-picked 1:00 p.m. ET games on CBS and/or Fox based on the geography of a given market, fans in that locale would also have, for instance, an out-of-market game on NBC, ABC, ESPN, ESPN2, FS1, USA, TNT, TBS, etc., etc., etc.
In that alternate universe without antitrust violations, it would have cost consumers with pre-existing access to those networks nothing to watch the games.
The $7 billion comes only from the cost of Sunday Ticket. It does not include, for instance, the expense of getting DirecTV or of having a sufficient DirecTV subscription to qualify for Sunday Ticket. It was simply the extra cost of Sunday Ticket versus the no-extra-cost world of every Sunday afternoon game available somewhere on the non-premium dial.
Like plenty of other witnesses in the case, Rascher’s testimony was much longer than it needed to be (more on that in a later post). Rascher testified for all of the fifth day of the trial (June 11) and into the sixth (June 12). There were some interesting nuggets beyond his main purpose of establishing the $7 billion damages ceiling.
Pointing to internal NFL research, Rascher testified that 38 million fans want to watch out-of-market games, and that only two to three million do. That leaves 35 or 36 million customers who are not getting what they want. (Those fans are not covered by the class action, because they didn’t buy Sunday Ticket.)
Another NFL study suggested that the number of fans who wanted to watch out-of-market games was as high as 75 million.
That’s why the NFL was, per Rascher’s review of the relevant documents, “constantly looking” at shifting the Sunday Ticket package to cable.
Rascher also addressed ESPN’s desire to offer the entire Sunday Ticket package for as low as $70, along with a single-team option. The league wasn’t interested.
His testimony likewise challenged the NFL’s contention that the average amount paid during the 2011-2022 class period was in the neighborhood of $102 — a number that seems shockingly low to those of us (me included) who paid full freight year after year after year. After year.
"[T]his 102 average includes all of these DirecTV subscribers who are not class members, DirecTV subscribers who didn’t purchase Sunday Ticket,” Rascher said. “They may have been given a free Sunday Ticket offering when they joined DirecTV, so you typically . . . join for two years. In that first year, you get all of these price promotions. You pay less for the TV package itself, you often get free HBO for a while and Showtime, and they were also providing folks with a Sunday Ticket package. But many of those customers don’t even watch Sunday Ticket. They’re not football fans. It just comes along with the package.
“So the class is made up of people who purchased, paid for, Sunday Ticket. And so this 102 average really includes really millions of other customers who didn’t end up purchasing Sunday Ticket.”
On cross examination, the NFL’s approach included listing all of the many millions the league spends to produce and present games — as if that has any relevance to antitrust violations in connection with fixing the price for Sunday Ticket to boost viewership of CBS and Fox games in local markets.
The league’s lawyers also attacked Rascher’s college football example by pointing to the current chaos in college football. As if the current chaos in college football has anything to do with so many games being available to be watched on non-premium channels.
The current chaos in college football is about NIL. Anyone on the jury who pays any attention to college football would have known that, and would have viewed this portion of the cross as disingenuous, at best.
The plaintiffs on redirect handled the “chaos” argument in a fairly simple way.
Q: “And is it uncommon for the party whose conduct is at issue to claim that if they had to be competitive, they would be -- it would be chaos?”
A: “Yes. I mean, obviously parties that are in a monopoly want to stay in a monopoly. They make more profits, right? And if things are going to change, they’re going to have to start competing. And that’s going to look like chaos perhaps from their perspective. From the market’s perspective, it’s going to look like a market.”
That’s ultimately what Rascher tried to do — to predict how the market would have operated if the NFL’s 32 independent businesses hadn’t come together to exercise monopoly power in a way that kept the price of Sunday Ticket high enough to dissuade millions from buying it. And, in turn, picking the pockets of 2.4 million avid residential fans who gladly paid the unfairly high price to watch out-of-market games.
Again, these are no longer allegations. A jury of five men and three women unanimously found that the NFL’s approach violates federal antitrust law. Even if the NFL throws a successful Hail Mary at some point between post-trial motions and the Supreme Court, the truth remains that the league deliberately overcharged for Sunday Ticket to ensure that the choices available to fans would come at a price that most of them (up to more than 70 million) would deem to be too high to pay.
