In a move that would have been a surprise only if it hadn’t happened, the plaintiffs in the Sunday Ticket class action have officially commenced the process of appealing the decision of Judge Philip Gutierrez to overturn a $4.7 billion jury verdict — which would have become a $14.1 billion judgment under the federal antitrust laws.
Via multiple reports, a notice of appeal was filed in the case.
The notice, filed with the district court, activates appeal of the case to the United States Court of Appeals for the Ninth Circuit. No legal brief is filed with the notice of appeal. It’s a simple and short document, as simple and short as any legal filing ever is.
The move triggers the next stage of the proceedings, which will consume more than a few months. Relevant aspects of the record will be designated. Deadlines will be established for filing briefs. Often, the possibility of a mediated settlement will be considered.
While oral argument is not automatic, a case like this surely will entail a three-judge panel. The identity of the judges — and, specifically, the political leanings of the president(s) who appointed them — will have a major influence on the outcome. It will be, as previously explained, a crapshoot.
The losing party will have the ability to seek a rehearing and, ultimately, a hearing before the full Ninth Circuit. At some point, the appeal will be finalized. The losing party will have the ability to ask the U.S. Supreme Court to consider the case.
The amount of the verdict, and the requirement that it be tripled under the antitrust laws, guarantees that the case will be appealed and appealed and appealed until all appeals are exhausted. If it’s ultimately sent back to the trial court for further proceedings (including potentially a new trial or a trial on damages only), a different judge will handle the case. Next month, Judge Gutierrez will be retiring.
The case flows from the argument that the NFL’s distribution and pricing of the Sunday Ticket package violates federal antitrust laws. The judge concluded that the evidence at trial supported a jury verdict as to liability. The judge threw out the damages verdict because he found that the expert testimony supporting the award was insufficient, after he had found it was.
The NFL has not made any changes to Sunday Ticket for 2024. The class action covers 2011 through 2022. Further litigation is possible (if not inevitable) for 2023 and onward. Last year, the out-of-market package shifted from DirecTV to YouTube.
After losing the verdict, the NFL won the judgment in the Sunday Ticket case. And to the victor go the spoils.
Via A.J. Perez of FrontOfficeSports.com, the NFL has formally sought reimbursement of litigation costs from the plaintiffs in the antitrust action. The amount requested, per the league’s filing, is $389,715.61.
That amount represents out-of-pocket costs, not legal fees. The league seeks compensation for witness depositions, travel, copying, and other hard expenses incurred in defending the case.
In the American system of civil justice, each side pays its own legal fees, with certain exceptions. In most jurisdictions, the losing party can be required to pay the winning side’s litigation costs.
It’s a matter falling within the discretion of the judge. In this case, it’s kind of a jerk move by the NFL to seek the money — and it would be the ultimate jerk move for Judge Philip Gutierrez to order the payment.
The plaintiffs won the case. They proved that the NFL’s Sunday Ticket package violates antitrust law. The plaintiffs ultimately lost only because the judge, in a different kind of jerk move, allowed the plaintiffs’ expert witnesses to testify about damages before deciding after the verdict was returned that the testimony wasn’t good enough. To make matters worse, the judge later refused to order the NFL to disband Sunday Ticket in its current form, even though he also found that the evidence supported the jury’s conclusion that it violates federal antitrust laws.
Yes, the league has every right to seek the money. Yes, it also makes the league look petty and vindictive for doing so.
Although the cash won’t come from the pockets of Sunday Ticket customers, the effort to force the lawyers representing those customers to pay nearly $400,000 becomes a warning to any other lawyers who might dare to help other Sunday Ticket customers prove that the out-of-market package violates federal law.
But, hey, football is family.
The jury spoke. And the judge ignored it. In every way possible.
Nearly three weeks after throwing out a $4.7 billion verdict based on expert testimony he rejected AFTER allowing it, Judge Philip Gutierrez has entered a final judgment that refuses to grant the 2.4 million residential consumers and nearly 50,000 commercial establishments injunctive relief against the antitrust violation the jury found.
Via A.J. Perez of FrontOfficeSports.com, Gutierrez entered the final judgment on Tuesday, with no requirement that the NFL stop doing the thing that the jury found to be impermissible.
Gutierrez, ignoring objection from the plaintiffs, took the order proposed by the NFL, struck out the word “proposed,” and entered the judgment.
It leaves the plaintiffs SOL (legal term), forcing others to sue — and to hope that the judge handling the case will allow (and then not reject after the verdict) expert testimony aimed at coming up with the out-of-market ticket pricing in an alternate universe without the NFL violating antitrust laws by distributing the package in a way that discourages fans from buying it, and that encourages them to settle for the games available on their local CBS and Fox affiliates.
The next step for the plaintiffs, barring what would likely be a fruitless motion for reconsideration to Gutierrez (who is retiring in October), will be to file within 30 day a notice of appeal to the U.S. Circuit Court of Appeals for the Ninth Circuit. Then, in roughly 12 to 18 months, a three-judge panel will decide whether Gutierrez got it right, or whether he got it wrong.
Regardless of whether the NFL will have to pay more than 2.4 million residential class members and nearly 50,000 commercial establishments in the Sunday Ticket case, the plaintiffs want what’s known as injunctive relief. In non-legalese, it’s an order telling the NFL to ix-nay on a distribution and pricing model that violates antitrust law.
As explained in the aftermath of Judge Philip Gutierrez’s stunning decision to scrap a $4.7 billion verdict (which would have become a $14.1 billion judgment), he found that the record contained more than enough evidence to support a finding that Sunday Ticket amounts to an antitrust violation. The judge scrapped the verdict because he rejected the testimony from the expert witnesses who conjured a world that would have existed “but for” the antitrust issue. The judge did not exonerate the NFL.
So, now, the plaintiffs want the judge to tell the NFL to stop doing what it’s been doing, for 30 years and counting.
The fight emerged after the NFL prepared and submitted a draft judgment that, if signed by the judge, would end the case. The plaintiffs, via A.J. Perez of FrontOfficeSports.com, submitted objections to the proposal regarding the issue of “injunctive, declaratory, and equitable relief.” Again, the plaintiffs want the judge to say to the NFL, “Your out-of-market package violates antitrust law. You must abandon it.” And they believe the jury’s finding justifies it.
That’s not only a fair outcome but also the only one that makes sense. Otherwise, more and more plaintiffs will have to keep chasing the NFL in court, hoping to come up with a damages calculation based on a hypothetical, made-up world universe where the NFL isn’t violating antitrust laws through Sunday Ticket.
If the plaintiffs get what they want, Sunday Ticket eventually will become more affordable — not just for the plaintiffs in the lawsuit but for everyone else, too.
Sunday Ticket isn’t getting cheaper. It’s getting more expensive.
Depending on where you buy it.
Via John Ourand of Puck.news, the out-of-market game package is now available via the Apple app store, for viewing on an iPad or iPhone. The cost? $679.99.
Packaged with RedZone, it costs $739.99 per year.
The league told Ourand that the pricing isn’t its business: “The NFL does not control the pricing of Sunday Ticket and does not set or receive any additional fees associated with its sale.”
As Ourand notes, Apple takes a 30-percent fee for anything sold in its store. That fee has been built into the pricing.
Regardless of the NFL’s claims about pricing, the transcript of the Sunday Ticket trial made it clear that the lead wants it to be a “premium” product that will complement to over-the-air, in-market broadcasts. The league wants a sufficient percentage of fans to choose to watch the games available on local CBS and Fox affiliates, protecting the billions it receives from those networks.
With Judge Philip Gutierrez gutting the Sunday Ticket verdict and belatedly throwing the case out of court, the plaintiffs definitely will appeal the decision to the U.S. Court of Appeals for the Ninth Circuit.
So what happens next? It really is a crapshoot.
The Ninth Circuit currently has 29 judges. Three of them will be assigned to handle the appeal. Until we know the three judges, it becomes impossible to even try to begin to predict the outcome.
Some judges might be inclined to uphold Gutierrez’s decision. Some might be inclined to overturn it. More than any other factor, the composition of that three-judge panel will determine the case.
I’ve argued cases before the Fourth Circuit, in Richmond. There (and it’s been a while so it possibly has changed), the lawyers didn’t know the names of the judges until they showed up for the hearing, after all briefs and related paperwork were submitted.
Some judges will have a history of making pro-business rulings. Some judges will have a history of making pro-consumer rulings. That tendency is often revealed by the party of the president who appointed the judge.
The split for the 29 active circuit judges is 16-13, Democrat. For the 23 senior-status judges on the Ninth Circuit, it’s 14-9, Democrat.
The appeal will take a year or so to resolve. The case could be sent back for a new trial on damages, the $4.7 billion verdict could be reinstated, or the judge’s decision to throw the case out could be upheld.
Already, the Ninth Circuit has overturned a decision to throw the case out before the litigation even got going.
Of course, before anything would become final, whoever loses at this level will seek a rehearing and/or a decision from the full court and, inevitably, a petition to the Supreme Court.
Cowboys owner Jerry Jones testified at the trial of the Sunday Ticket class action. His appearance didn’t help the league avoid a $4.7 billion verdict and a potential $14.1 billion judgment.
The presiding judge on Thursday gave the NFL a pass for the full amount, finding that the jury properly found that Sunday Ticket package violates federal antitrust laws — but that the plaintiffs failed to introduce reliable expert witness testimony regarding the financial harm caused by 12 years of deliberate and concerted overcharging for out-of-market games.
Jones is obviously happy that he won’t have to write a check for $440 million, which would have been his 1/32nd share of the final amount.
“Well, we were pleased that we made our presentation to the judge and are pleased with his ruling,” Jones said Friday, via Calvin Watkins of the Dallas Morning News. “And we’ll go from there. I won’t be saying anything more about it.”
I’m not sure of many things. I’m sure that Jones will inevitably say something more about it.
While things can change on appeal, Jones seized last weekend on the looming liability as a reason for not paying his players. Now that the $14.1 billion has been erased, he should be able to assume the salary cap will keep soaring and the money will keep flowing, right?
Wrong. He’ll find another reason to drag his feet and to lowball his players before ultimately saying matae and writing the check regarding players like receiver CeeDee Lamb (who’s holding out) and linebacker Micah Parsons (who should be). Or, in the case of quarterback Dak Prescott, watching him leave next with as an unrestricted and unfettered free agent.
Civil trials can have two kinds of witnesses: (1) fact witnesses, who talk about events relevant to the controversy; and (2) expert witnesses, who offer relevant opinions based on their education, training, and experience.
The plaintiffs in the Sunday Ticket class action had their $4.7 billion verdict (and $14.1 billion judgment) thrown out on Thursday because Judge Philip Gutierrez decided the opinions provided by the plaintiffs’ expert witnesses regarding financial damages were not reliable.
That’s what happened, in the simplest possible nutshell. The judge, who knew what the experts would say and allowed them to say it, threw out the expert testimony after the jury issued its verdict.
So why let them testify in the first place? Why waste everyone’s time (including the jury’s) by conducting a four-week trial if the judge believed the opinions of the expert witnesses were insufficient?
The challenge in any antitrust case is to take the real-world expenses arising from antitrust violations and conjure a hypothetical world in which the antitrust violations didn’t happen. It’s not going to be easy to do, especially when (as in this case) the NFL didn’t offer its own but-for world but instead fought aggressively against anything/everything the plaintiffs suggested.
Dr. Daniel Rascher, one of the expert witnesses whose testimony was allowed until it wasn’t, crafted a model based on the NFL ditching Sunday Ticket and selling the out-of-market games to various networks that would broadcast the feeds from CBS and Fox.
It’s a simple concept. In each market, CBS and Fox would deliver the games that they always have. Steelers in Pittsburgh. Packers in Milwaukee. Falcons in Atlanta. Dolphins in Miami. Etc. Etc. Then, in each market, the other games would be delivered through a collection of networks and/or cable channels — NBC, ABC, ESPN, ESPN2, FS1, USA, NFL Network, and/or TNT.
The end result could have taken that form, or others. Ultimately, it would have been up to the NFL and the broadcast partners to figure out a world that didn’t violate antitrust laws.
How could anyone know what the NFL would do if it couldn’t sell Sunday Ticket in its current form? In this case, the plaintiffs tried to prove what a world without antitrust violations would have looked like. And the judge was either unwilling or unable to comprehend that, without Sunday Ticket, the NFL might have come up with a no-extra-charge distribution of games on up to nine or 10 different networks at 1:00 p.m. ET. Or maybe the league would have decided to start Sundays with a game at noon and another at 12:30 p.m. ET and another one every half hour, rolling throughout the day and allowing fans to watch any, some, or all of each game.
Judges often solve the maze of facts and law in a given case by picking a preferred destination and working backward. Here, it’s clear that the judge didn’t want the plaintiffs to prevail. But he didn’t throw the case out before the verdict, because he thought the jury might save him from having to do so. After the verdict was returned, he had no choice. To get to where he wanted to go, he had to throw out the entire case.
The flaws in the judge’s thinking are peppered throughout his 16-page opinion. For example, at footnote 6 on page 7, he writes that “Dr. Rascher’s solutions were contradicted by the record. Sean McManus, President of CBS, testified that CBS would not share its feeds with competitors . . . or let those networks ‘advertise however they wanted’ with their feeds.” That testimony from McManus was purely speculative and self-serving. If the NFL told CBS that, in order to televise in-market games in more than 200 markets throughout the country, it would have to share out-of-market feeds with other networks, CBS would piss and moan but ultimately do it. We know that because that’s what CBS has done with Sunday Ticket, ever since CBS returned to the NFL broadcast fold in 1998.
CBS hates Sunday Ticket. CBS wishes Sunday Ticket would die. And CBS tolerates the existence of Sunday Ticket, giving DirecTV (and now YouTube) the CBS feeds.
But Judge Gutierrez accepted the hypothetical contention of an executive who doesn’t even work at CBS any longer as gospel truth. To use a technical legal term, that’s bullshit.
Remember, the judge didn’t find that the jury improperly concluded that Sunday Ticket violates the antitrust laws. He specifically found that there was enough evidence to justify the verdict as to the issue of liability. He threw the verdict out because he determined that the expert witnesses he allowed to testify weren’t reliable.
And so millions of consumers who paid too much for Sunday Ticket (like me and maybe like you) are left with a finding that it violated the antitrust laws but with no way to obtain compensation for 12 years covered by the class, because the judge decided that the expert witness testimony was insufficient — after he decided that it good enough.
It makes no sense. None of it. And given the news that the judge is retiring in October, he’s arguably not concerned about the case being reversed and remanded for a new trial on damages. It won’t be for him to clean up the mess, if/when an appeals court sends the case back — as the appeals court already has done, after another judge dismissed the entire case.
Philip Gutierrez is leaving with a flourish.
The judge who presided over the Sunday Ticket trial — and who transferred $14.1 billion from the plaintiffs to the NFL in one fell swoop on Thursday — is retiring in October 2024, via Alex Schiffer of FrontOfficeSports.com.
“On October 15, 2024, I intend to retire from regular active service,” Gutierrez wrote in a letter to President Joe Biden in January 2024. “It is my intention to continue to render substantial judicial service as a senior judge.”
Gutierrez served as an L.A. County Superior Court judge from 1997 through 2007. He was appointed to the federal bench by President George W. Bush in 2007. The appointment wouldn’t have happened absent a track record suggesting that his decisions will mesh with the overall Republican, which disfavors public or private regulation of big business. (That’s not a political opinion; it’s an undeniable fact.)
Gutierrez turns 65 two days before his retirement. By rule, that qualifies him for his full current salary in retirement. Nationwide, senior-status judges handle roughly 15 percent of the total workload of the federal courts. It’s voluntary, since the senior-status judge gets his or her full salary anyway.
Meanwhile, the NFL is still looking for a new general counsel.
I’m kidding about the last part. I think.
In Judge Philip Gutierrez transferring $14.1 billion with the stroke of a pen, many around the NFL breathed a deep sigh of relief.
The prospect of each team coming up with $440 million to satisfy the verdict would have had widespread ramifications. (And, obviously, it still could, if the plaintiffs prevail on appeal.)
In the weeks after the $4.7 billion verdict was returned (by law, it would have been tripled), folks throughout the league’s overall infrastructure were realizing that paying it off wouldn’t be as simple as every owner writing a giant check and moving on. Even if there would have been no direct impact on the salary cap (and some owners were already plotting to spread the pain to players), plenty of teams would have been spending less.
For example, Packers quarterback Jordan Love will make, in all, $79 million this year under his new contract. That kind of cash flow would not happen in any year in which the Packers would have had to surrender $440 million for Sunday Ticket liability.
Likewise, there’s a salary cap and a salary floor. More teams would be congregating at the floor, if/when they have to pay the out-of-market piper.
Belts would be tightened elsewhere. Coaches would be paid less. Executives would be paid less. Other non-player employees would be paid less. Layoffs would happen. Even though the owners were responsible for the antitrust violation, they would have found a way to spread the consequences as broadly as possible. That’s just the way business works.
Thursday’s ruling doesn’t mean everything goes back to normal. Until the case is completely and totally over, the possibility of eventually having to pay the money looms. But the league has pivoted in one fell swoop from a position of extreme weakness to a position of extreme strength.
In turn, the plaintiffs are now in a position of extreme weakness. Even though the jury properly found (per the judge) that the Sunday Ticket distribution and pricing violates federal antitrust laws, those who purchased it from 2011 through 2022 will get nothing and like it, barring a successful appeal.
The biggest question is whether anything will change, when it comes to the availability and pricing of Sunday Ticket. Will out-of-market games still be exclusive to YouTube, or whoever buys the Sunday Ticket package in the future? Will the price go down? Will a single-team option be available?
And, ultimately, will every game be available as part of a basic package of network and cable channels? Judge Gutierrez seems to be unable or unwilling to comprehend the basic reality that, if the NFL had to get rid of Sunday Ticket, it would come up with another way to distribute out of market games.
The best way to maximize viewership — and potentially revenue — could be to sell the national home-team packages to CBS and Fox and to sell the rights to the out-of-market games to other networks, from NBC to ABC to ESPN to FS1 to USA, allowing all fans to watch any games they want. Without paying more than $400 per year. Without paying anything more than what they already pay for their cable/satellite/streaming block of options.
To date, the league has opted to restrict out-of-market games to the Sunday Ticket package. If the NFL was forced to disband Sunday Ticket, it would come up with something else. While we’ll have more to say about the decision, Gutierrez decided that he didn’t like the “something else” that the plaintiffs presented through a pair of expert witnesses.
And so, even though Sunday Ticket violates antitrust laws — and even though the jury pegged the damages at $4.7 billion — the judge decided to give the NFL a free pass for past violations. It remains to be seen what that means for the future.
It has to mean something. It’s impossible to think that the Sunday Ticket package violates antitrust law, but that it’s fine for the NFL to do it because judges will continuously reject any effort to conjure a world without it. The easiest solution would be to tell the NFL to disband Sunday Ticket in its current form, and to let nature take its course.