I’ve made it through 683 pages of the Sunday Ticket trial transcript. There’s only 1,823 to go.
Hooray?
Those 683 pages cover four days of courtroom proceedings. On the fourth day, only one witness was called. To the dismay of Judge Philip Gutierrez. (More on that later.)
The lone witness was Fox executive Larry Jones. His full day of testimony established one fairly obvious fact about the Sunday Ticket package: The broadcast networks that competed with it didn’t like it.
“I’d rather Sunday Ticket not exist,” Jones said at one point. “From a Fox perspective, I would rather see Sunday Ticket not exist.”
Jones confirmed Fox’s request in the most recent negotiations that Sunday Ticket be priced no lower than $293.96 per season. He acknowledged that Sunday Ticket was an “existential” threat to Fox’s NFL business.
Fox, and CBS, don’t like Sunday Ticket because it draws viewers away from the broadcasts of their games. They prefer exclusivity. The absence of it drove Fox from the Thursday Night Football business, since its games were available on NFL Network and Amazon.
"[W]e actually had to get out of that contract a year earlier because it was pretty much a financial disaster for us,” Jones said, “and the real problem with Thursday Night Football if you’re a broadcaster is we didn’t have exclusivity to those games, so we would put a game on, on Thursday night, but the NFL Network would also have the same game simulcast, our telecast, and then Amazon, I think it was, also had that game. So we were now one of three places you could watch the game on Thursday night, and that really took a hit against our ad revenue.”
CBS and Fox want only one place to watch their games. They don’t want fans to have the option to watch other games, produced by CBS and Fox, on another platform.
That’s what prompted the NFL to ensure Sunday Ticket would be priced in a way that kept most fans from not choosing to pay for Sunday Ticket, which first required them to get a satellite dish and pay for DirecTV.
It’s the heart of the case. The 32 teams of the NFL — 32 distinct businesses — came together to guarantee that the price will be high enough to find the sweet spot between having enough Sunday Ticket subscribers to justify the money DirecTV paid and enough non-subscribers to justify the money CBS and Fox paid for the games available at no charge in all local markets.
The key testimony from Adams could have been harvested in an hour, not a full day. Which resulted in the fourth day of the trial getting very interesting after Jones finished testifying and the jury was excused.
To the extent that the plaintiffs began to alienate Judge Gutierrez, that’s apparently the day it happened.
“How did we get to one witness today?” Judge Gutierrez asked Amanda Bonn, the lawyer who questioned Jones for the plaintiffs. “I mean, you indicated that your estimate was one hour on direct and we were like two hours and 33 minutes. . . . [S]ometimes I thought you were taking a deposition.”
“Well, we — the documents didn’t get produced by Fox, they got produced by the NFL, so we just were doing our best, and I apologize it went longer than the estimate,” Bonn said.
“I’ll give you this warning,” Judge Gutierrez said. “You’re not going to get any extra time more than 25 hours [to submit your case] because you took a deposition today. I don’t care for the reason -- I mean, why weren’t -- why wasn’t this witness asked about those documents during [his] deposition? What’s the answer to that?”
“Your Honor,” Bonn said, “I apologize, and I can’t answer. I wasn’t on this matter at that time. I apologize for that.”
“I mean, it seems in some respects the trial’s going a bit oddly because I do feel like a deposition’s being taken,” Judge Gutierrez said. “Whether or not you were part of the trial team really is of no concern of mine, but it seems to me that you shouldn’t be asking the witness about a document for the first time at trial. This is the point I hit upon yesterday. The crude term would be ‘ambush'; that’s the crude term. But in any event, all I’m saying is it was a deposition and it was quite repetitive and don’t count on any extra time.”
Judge Gutierrez’s frustrations would erupt later in the trial, when he criticized the plaintiffs’ lawyers and threatened to dismiss the case. Whether he was simply trying to move the case along or truly believed the case should be thrown out remains to be seen. Because he now has on his desk an opportunity to grant judgment to the NFL, notwithstanding the verdict.
It would have been easier to do it, frankly, without that $4.7 billion verdict attached to it. Regardless, the ball is now in his court.
And if it happens, the plaintiffs’ lawyers will likely shout a few terms far more crude than “ambush.”