Today is the day.
That’s not just an existential observation. Today’s the day the Sunday Ticket case goes back to court, on the question of whether Judge Philip Gutierrez will grant judgment to the NFL notwithstanding the jury’s verdict or reduce the damages to $1 or order a new trial.
The rules authorize the judge to modify or scrap a verdict, under certain specific circumstances. Without going full law nerd, it’s highly unlikely (based on my review of nearly 2,000 pages of the 2,506-page transcript) that the judge will throw out the verdict on the issue of liability. The record is replete with evidence that would support a jury verdict that the NFL violated the antitrust laws based on the distribution and pricing of out-of-market games through Sunday Ticket.
The potential weakness comes from the damages case. The judge made it clear, on the morning of June 18, that he didn’t think much of the “but-for” world created by the expert witnesses hired by the plaintiffs. Although the plaintiffs’ lawyer did a nice job of walking the judge back from the brink of throwing the case out, the judge could still conclude that the calculations from Dr. Rascher and Dr. Zona were bunk.
That’s why it wouldn’t shock me to see a new trial ordered on the issue of damages, eventually.
Or maybe not. Because the real world was infected by the NFL’s antitrust violation, the plaintiffs have no choice but to construct an alternative universe and to put a dollar value on the difference between the actual cost for consumers and the hypothetical cost, if the defendants hadn’t broken the law.
If there was a new trial, and if the plaintiffs tried to introduce a better “but-for” world that would have played out without the NFL violating the antitrust laws, the NFL would still fight anything/everything the plaintiffs advance, claiming for instance that whatever the plaintiffs suggested as a non-antitrust violation would create “chaos” or that it wouldn’t be practical or that the economic model is bullshit or whatever.
The NFL had the chance during the trial to present a witness who would have presented a clear and reasonable formula for the cost of Sunday Ticket in a world without the league collectively selling the rights and insisting on a price structure that overcharged those who bought it, in order to nudge most fans toward watching games in their local markets on CBS and Fox. The NFL chose not to even try to suggest a “but-for” world, opting instead to plant a flag and stomp their feet on the notion that they did nothing wrong.
Judges tend to respect jury verdicts. We’ll see what Judge Gutierrez does with this massive (but not unreasonable) jury decision. No matter what he does, appeals are inevitable. Too much money is at issue.
Speaking of money, if the verdict becomes a formal judgment and triples to $14.1 billion, the judge will have to set an appeal bond. That alone could create a significant short-term financial issue for the NFL.
So stay tuned. Today will be another interesting day in what has been a very interesting case. Even if it still hasn’t drawn as much interest as it should from the media at large.