Sometimes instant replay can change the outcome of an NFL game.
Sometimes the judicial equivalent can wipe out a potential $14.1 billion victory for plaintiffs.
The latter happened late Thursday when U.S. District Judge Philip S. Gutierrez granted the NFL a judgment as a matter of law in the In Re: NFL’s “Sunday Ticket” Antitrust Litigation. Such judgments are difficult to obtain, because it means the judge concludes—as Gutierrez bluntly wrote in his 16-page order—”no reasonable jury could have found class-wide injury or damages.”
The ruling is a total victory for the NFL, which lost a jury trial last month in Los Angeles. The jury found in favor of a class action representing more than 2.4 million residential subscribers and more than 48,000 restaurants, bars and other commercial establishments that purchased Sunday Ticket anytime between 2011 to 2023. Jurors concluded the NFL violated antitrust law through its 32 teams pooling broadcasting rights for out-of-town fans and, supposedly, exploiting that pooling to charge higher prices. The jury awarded $4.6 billion and $97 million to the residential subscribers and commercial establishments, respectively.
In a hearing Wednesday, the NFL maintained the jury misunderstood how antitrust law works and fumbled a calculation for damages by confusing an overcharge with a discount.
In his ruling, Gutierrez determined that the jury was misled by expert testimony offered by the plaintiffs. The testimony used “flawed methodologies” that led the jury to mistakenly find “class-wide injury and damages.”
The judge added there is “no other support” for those findings except for expert testimony that should have been excluded.
More specifically, Gutierrez said one expert hypothesized what would happen if NFL teams adopted a college football model, which does not utilize pooling for out-of-market games. The expert surmised the games would “become available, just like on Saturday, on over-the-air channels and . . . basic sport cable channels,” and customers would not “pay anything extra above what they were already paying for their TV package.”
The NFL maintained this testimony should have been deemed inadmissible, since it is “devoid of economic reasoning” and “contrary” to “basic economics” principles. The NFL has ridiculed the plaintiffs’ antitrust theory, in part because the league’s broadcasting model does what other pro leagues and their teams, which require their local fans pay to watch games on RSNs via cable or satellite, don’t do: allow local fans of NFL teams to watch their games freely and over-the-air.
Gutierrez, who admitted the expert testimony during the trial, now finds the testimony should have been inadmissible, since the expert didn’t explain “how these out-of-market telecasts would have been available for free to cable and satellite customers.”
The judge said the expert reasoned the NFL would figure out how to make arrangements work without the Sunday Ticket but concluded that imprecise analysis was not sufficient for purposes of expert testimony.
The plaintiffs can forcefully question why the decision of a jury, which over a three-week trial where they heard from 27 witnesses and saw 82 admitted exhibits, should be reversed. The plaintiffs hoped that Gutierrez would, as authorized under federal antitrust law, treble the $4.7 billion damages to $14.1 billion. Even if the judge had reduced the damages from $4.7 billion to a smaller number, the plaintiffs would have still “won.”
Instead, Gutierrez wiped out the victory completely. The plaintiffs can appeal to the U.S. Court of Appeals for the Ninth Circuit.
For the NFL and its attorneys, the victory is massive. Not only will they not pay billions of dollars in damages, but they won’t have to change their Sunday Ticket arrangement, by letting consumers buy smaller and cheaper packages, or by allowing them to pay less than $349/year (the price of the Sunday Ticket, which gives access to all games) for access to games in one conference or division. Gutierrez’s ruling means the Sunday Ticket as designed by the NFL is legal under antitrust law.
“We are grateful for today’s ruling in the Sunday Ticket class action lawsuit,” the NFL stated Thursday evening. “We believe that the NFL’s media distribution model provides our fans with an array of options to follow the game they love, including local broadcasts of every single game on free over-the-air television. We thank Judge Gutierrez for his time and attention to this case and look forward to an exciting 2024 NFL season.”
NFL counsel Beth Wilkinson, a partner at Wilkinson Stekloff and former federal prosecutor, also issued a statement in response to Gutierrez granting the league’s post-trial motion. “We are grateful to Judge Gutierrez for his thoughtful oversight throughout the trial and his decisive ruling in its wake,” Wilkinson said. “We are thrilled to be able to deliver this victory to our clients after almost a decade of litigation.”
Scott Soshnick contributed to this story.
(This story has been updated with NFL counsel Beth Wilkinson’s comment.)
