The sides are now dueling over how the jury should be instructed by Judge Philip GutierrezRyan Kang/Getty Images
The blockbuster antitrust lawsuit trial over the NFL’s “Sunday Ticket” out-of-market media package will likely go to the jury this week.
The NFL’s last scheduled witness, Stanford economics professor Douglass Bernheim, will continue testimony he began Thursday when proceedings start again this morning in L.A. His argument Thursday
went to the core of the league’s defense: That bundling team media rights and selling them to a single, exclusive distributor is actually pro-competition and pro-fan.
The plaintiffs will continue to cross-examine him today, and then will call one rebuttal witness, Harvard professor Einer Elhauge. That sets up a conference between the judge and both sides’ lawyers to hash out final jury instructions on Tuesday, with closing arguments likely to come Wednesday. That could give the case to the jury by Thursday (court is not in session Fridays.)
The sides are now dueling over how the jury should be instructed by Judge Philip Gutierrez. For instance, the NFL argues that
Cowboys owner Jerry Jones’ testimony about his own lawsuit against the NFL over bundled merchandising rights in the 1990s shouldn’t be part of the deliberations; plaintiffs say it’s relevant.
If the jury rules against the NFL in this case, damages had been estimated pre-trial at $7B, which could be tripled under antitrust law. The NFL will appeal a negative verdict, and most legal observers believe the NFL has a better chance of ultimately winning on appeal, possibly at the U.S. Supreme Court, than in the jury trial.
Gutierrez could also throw out some or all of the case before the jury hears it, a possibility given new life
by his comments last week to the plaintiffs’ attorneys: “This case has gone in a direction it shouldn’t have gone.”
In some respects, the testimony has been less spectacular than many anticipated. NFL Commissioner Roger Goodell’s testimony
shed intriguing light on a decade of confidential NFL media strategy, and fans might not like
some emails introduced into evidence about Sunday Ticket pricing and options. But there have not been smoking guns on the antitrust charges, or admissions that altered industry beliefs about how NFL media business is done.
The plaintiffs did not call Eugene Lennon and Jason Baker, the two bar owners who officially represent the 48,000 commercial plaintiffs, who allege they lost money because of the NFL artificially maintained a high price by limiting competition.
On Thursday, Bernheim argued on the witness stand that NFL fans would be worse off if the league let teams sell media rights separately or to multiple carriers. His analysis concluded that if teams sold their media rights separately, it would destroy the relative parity between the teams, severely undermining revenue sharing and the salary cap. According to Law360, Bernheim said that during the 12-year period at issue in the trial, without revenue sharing, seven teams would have posted losses while the Cowboys would have cleared $1B in operating income.
