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The NFL has started its quest to overturn
the blockbuster $4.7B verdict in the “Sunday Ticket” antitrust trial, accusing the L.A. jury of misunderstanding basic concepts in the case and delivering a “nonsensical,” “irrational,” “indefensible” and “unsound” verdict.
The motion, filed July 3, asks Judge
Philip Gutierrez to throw out the verdict, reduce it to $1 or order a new trial entirely. But NFL lawyers also argued the jury foreperson was biased, and that Gutierrez gave improper instructions to the jury and allowed plaintiffs to change their whole theory of the case at the last minute.
If those arguments are persuasive with Gutierrez, the NFL could see relief in a matter of weeks. But the motion also contains the seeds of an effort to bring this case to a business-friendly U.S. Supreme Court, which would take years: An argument that the NFL cannot be held liable for antitrust violations in this case because “Sunday Ticket” buyers were customers of DirecTV, not the NFL, and that NFL teams are allowed to pool media rights.
The jury’s primary flaw, according to the NFL, was arriving at the $4.7B damages figure based on the difference between a $294 “list price” and the average actual price paid by residential subscribers of $103. That “list price” was only in force for three of the 12 years in dispute, and few people actually paid it. “That made-up methodology makes no sense,” NFL lawyers wrote. Antitrust damages are supposed to be the difference between what customers had to pay and what they would have if not for illegal monopolistic behavior.
Separately, the NFL argued that Juror No. 7, the foreperson, was biased because he or she pays for a household member’s current “Sunday Ticket” subscription. The juror was allowed because the household member was not a customer during the class period, but the NFL argues that doesn’t eliminate the possibility of bias. One outcome of the verdict could be lower prices going forward.
The NFL is also trying to get a new trial because of Gutierrez’ jury instructions. Prior cases and the American Bar Association’s model jury instructions say the question for antitrust jurors is whether “the competitive harm [of the NFL’s business tactics] substantially outweighs any competitive benefits.” But Gutierrez omitted the word “substantially,” effectively lowering the bar for a verdict. “There was no justification for this consequential departure,” the NFL’s lawyers write.
Looking ahead to possible appeals
The indirect purchaser argument cites the 1977 Illinois Brick v. Illinois case. In that case, the Supreme Court (a far more liberal version than exists today) said people can only recover antitrust damages from the actual seller. In this case, the bars, restaurants and individuals bought Sunday Ticket from DirecTV, not the NFL. Also, the NFL will argue that its 32 teams should be allowed to pool their media rights, a point seemingly endorsed by Associate Justice Brett Kavanaugh earlier in this case when he wrote, “The NFL and its member teams operate as a joint venture. Antitrust law likely does not require that the NFL and its member teams compete against each other with respect to television rights.” The motion will be heard by Gutierrez in court on July 31, with a ruling likely in the weeks after that.
