In early July, the National Football League (“NFL”) looked to score a massive victory by throwing their legal equivalent of a challenge flag when they filed a motion for judgment as a matter of law, or in the alternative, a new trial. This came after the NFL, in the United States District Court for the Central District of California, lost at trial in the Sunday Ticket class action after a jury found that the NFL conspired with their member teams to artificially inflate the price of the NFL Sunday Ticket which violated antitrust law.
The NFL Sunday ticket allows out-of-town fans the opportunity to watch their favorite team (that may not be shown over cable television in their area) weekly. The service gives fans access to every game on Sunday afternoons for a rather substantial price. After the three-week-long trial surrounding the Sunday Ticket, damages were awarded for around $4.6 billion to the residential subscribers and $97 million to the commercial establishments that were part of the class action.[i] However, under federal antitrust law, damages are eligible to be tripled, which meant the NFL could have been subject to pay around $14 billion in damages to the plaintiffs.
After losing at trial and pursuant to Federal Rules of Civil Procedure (“FRCP”) 50(a)–(b), the NFL filed its motion for judgment as a matter of law, seeking the court find that “a reasonable jury would not have a legally sufficient evidentiary basis” to find class-wide injury and damages.[ii] Additionally, the NFL sought a new trial in the alternative, pursuant to FRCP 59, seeking the court to find the jury’s damages verdict irrational and conditionally grant a new trial based on that finding.[iii] United States District Judge Philip S. Gutierrez (“Judge Gutierrez”), who presided over the trial, sided with the NFL and granted their motion for judgment as a matter of law, which gave the NFL the big win they were after.[iv]
Among other things in their motion, the NFL opined that the expert testimonies from Dr. Daniel Rascher (“Dr. Rascher”) and Dr. John Zona (“Dr. Zona”) should have been excluded under FRCP 702.[v] Based on FRCP 702, the NFL argued that the but-for worlds, which included Dr. Rascher’s “college football fantasy” and Dr. Zona’s “multiple error-ridden models” were indeed based on flawed methodologies.[vi] A but-for world, in antitrust litigation alleging price-fixing, represents the economic outcome that would have occurred with the alleged price-fixing agreement. A but-for world is used for assessing damages, with the difference between the counterfactual world (the but-for world) and the actual world providing what the damages would be.
The NFL did seek to have the two expert witnesses’ testimonies excluded or limited prior to trial by filing two motions in limine, but Judge Gutierrez denied these motions, siding with the plaintiffs on that occasion.[vii] However, in his order granting the NFL’s motion for judgment as a matter of law, Judge Gutierrez now agreed with the NFL after trial that the two expert testimonies should be excluded. First, he found that Dr. Rascher’s college but-for world, a world where the NFL adopted college football’s model for broadcasting games, was not based on any reliable supporting evidence offered at trial but rather based on his own opinions and must be excluded as a result.
Second, Judge Gutierrez found that Dr. Zona’s expert testimony, which included multiple but-for worlds without exclusivity, was flawed and must also be excluded as per FRCP 702. Dr. Zona’s multiple but-for worlds predicted that additional distributors would charge more for the NFL Sunday Ticket than the provider at the time, DirecTV, did but that consumers would still purchase from the higher-priced distributors. The justification for this would be that consumers would not need to purchase the underlying cable subscription (a so-called “direct-to-consumer” approach), making the overall price comparable to DirecTV’s. Dr. Zona’s testimony’s main flaw was his failure to define what “direct-to-consumer” meant. “Direct-to-consumer” could have included another cable provider with an underlying subscription, completely undermining his justification for his own but-for worlds. Additionally, the plaintiffs also failed to make Dr. Zona’s but-for world feasible by not providing evidence of a streaming service (with no underlying subscription) other than DirecTV that could have offered NFL Sunday Ticket since 2011.
Thus, because the testimonies of Dr. Rascher and Dr. Zona were inadmissible, judgment as a matter of law was appropriate for the NFL because the plaintiffs were no longer able to show evidence of class-wide injury and damages. Judge Gutierrez did not stop with the granting of the NFL’s motion but also ruled that if the motion was otherwise inappropriate, he would have granted a new trial, nonetheless. He reasoned that the jury’s damages were irrational and were not based on “evidence and reasonable inferences” but instead more like “guesswork or speculation.”[viii]
The NFL, after losing at trial, managed to come from behind in the litigation of the Sunday Ticket and did enough to convince Judge Gutierrez in overtime with their motion for judgment as a matter of law. The reversal of the jury verdict can potentially pave the way for several different things to occur. Meaning that the implications of the verdict’s reversal are widespread. First and foremost, perhaps no implication is bigger than the NFL avoiding paying up to $14 billion in damages to the plaintiffs, which would likely have been paid by the thirty-two NFL clubs evenly. Moreover, the NFL also avoids having to explore a world of broadcasting games without the option of the Sunday Ticket because the NFL (for the time being) has not violated any antitrust laws considering this win. This means the NFL will move forward with business as usual as it applies to the way they offer the Sunday Ticket to their fans.
The decision made by Judge Gutierrez has also already been appealed to the United States Court of Appeals for the Ninth Circuit.[ix] This marks the second time the Sunday Ticket litigation will be in front of the Ninth Circuit, as in 2019, a divided panel reversed the trial court’s ruling dismissing the case.[x] The plaintiffs will hope that the Ninth Circuit finds error in Judge Gutierrez’s decision and remands the case back down to the district court. If this occurs, the litigants will go for round three at the trial level because, as mentioned previously, it was found that if judgment as a matter of law was not appropriate, then a new trial would have been granted, nonetheless. The NFL alternatively hopes that the Ninth Circuit, this time, sides with them and affirms the order from the trial court.
Both parties may be waiting a long time as appeals in the Ninth Circuit often move slowly and can take a couple of years from the filing of the appeal to a decision. In the meantime, the NFL and the class action plaintiffs could negotiate a settlement, which is unlikely considering the years already spent litigating the case. Alternatively, the United States Supreme Court could step in and issue a review of the ruling to have the final say in the Sunday Ticket litigation. In 2020, the Supreme Court denied certiorari review of the case due mostly to the fact that it had come to them at the time when the motion to dismiss was at issue.[xi] Justice Brett Kavanaugh authored a statement in the denial in which he expressed a potential interest in the Supreme Court taking the Sunday Ticket case for review at some point in the future.[xii]
Other professional sports teams in the U.S. will also keep a close eye on the end result of the Sunday Ticket litigation. Although their viewing options differed slightly from those of the NFL, leagues such as Major League Baseball and the National Hockey League faced similar antitrust lawsuits but opted to settle the class actions instead of going to trial.[xiii] The NFL Sunday Ticket litigation is far from over, but for now, the NFL has taken a massive step in protecting the broadcast service, which they believe is a product that fans should consider a high-quality offering for consumers.[xiv]
[i] See Michael McCann, NFL Ordered to Pay $4.7 Billion in Sunday Ticket Trial Verdict, Sportico (June 27, 2024), https://www.sportico.com/law/analysis/2024/nfl-sunday-ticket-trial-decision-1234785934/ (stating the damages which were awarded after the class action Sunday Ticket trial).
[ii] FRCP 50(a)–(b).
[iii] See FRCP 59.
[iv] See In re: NFL “Sunday Ticket” Antitrust Litig., 2024 WL 3628118 (C.D. Cal. Aug. 1, 2024) (“[T]he Court grants Defendants’ judgment as a matter of law as, without the testimonies of Dr. Racher and Dr. Zona, no reasonable jury could have found class-wide injury or damages.”).
[v] FRCP 702; see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993) (requiring district courts to “ensur[e] that expert’s testimony both rests on reliable foundation and is relevant to the task at hand”).
[vi] See ECF No. 1490, Defs.’ Mot. J. as a Matter of L. 1:1-8 (July 3, 2024) (stating that judgment as a matter of law for the defendants’ is appropriate because the testimonies of Dr. Rascher and Dr. Zona should be excluded).
[vii] See In re NFL’s “Sunday Ticket” Antitrust Litig., 2024 WL 2165676 (C.D. Cal. May 13, 2024) (“Having considered the moving papers, the Court Denies Defendants’ motions in limine Nos. 5 and 6.”).
[viii] See In re: NFL “Sunday Ticket” Antitrust Litig., 2024 WL 3628118 (finding that the jury damages awarded were not supported by proper evidence and must therefore be vacated).
[ix] See Michael McCann, NFL Must Defend Stunning Sunday Ticket Victory on Appeal, Sportico (Sept. 9. 2024, 5:55 AM), https://www.sportico.com/law/analysis/2024/nfl-sunday-ticket-lawsuit-appeal-1234796491/ (stating that the order granting the NFL’s motion for judgment as a matter of law has been appealed by plaintiffs’ attorneys to the Ninth Circuit, as expected).
[x] See id. (“The litigation began in 2015, and in 2019 a divided three-judge panel on the Ninth Circuit reversed a trial court’s dismissal of the case.”).
[xi] See Nat’l Football League v. Ninth Inning, Inc., 141 S. Ct. 56–57 (2020) (“But the case comes to us at the motion-to-dismiss stage, and the interlocutory posture is a factor counseling against this Court’s review at this time.”).
[xii] See id. (stating that a decision with such legal and economic significance typically would catch the Supreme Court’s attention for them to review it); see also Steve McCaskill, NFL Commissioner Roger Goodell Defends Sunday Ticket in Antitrust Lawsuit, SportsPro Media, (June 18, 2024) (“Justice Brett Kavanaugh added a comment that suggest he and other justices were interested in the underlying antitrust questions.”).
[xiii] See Michael McCann, NFL Sunday Ticket Verdict Shines Light on MLB, NHL Approach, Sportico (July 8, 2024), https://www.sportico.com/law/analysis/2024/nfl-sunday-ticket-mlb-nhl-networks-1234786830/.
[xiv] See Steve McCaskill, NFL Commissioner Roger Goodell Defends Sunday Ticket in Antitrust Lawsuit, SportsPro Media, (June 18, 2024) (“National Football League (NFL) commissioner Roger Goodell has defended the pricing and positioning of Sunday Ticket, arguing that the package of out-of-market matchups is a premium product.”).
