A jury in federal court in California decided on Thursday that the NFL and its member teams violated federal antitrust laws with the “Sunday Ticket” package. Following Thursday’s historic jury verdict against the NFL and its member teams — that could have the league on the hook for over $14 billion in damages to plaintiffs, including individual fans and commercial establishments who bought “Sunday Ticket” — many are wondering when individual team packages could hit the airwaves, as well as when they might see a check.
To quote the great Lee Corso, “not so fast my friend.”
Keeping this in football terms, the verdict is akin to the league getting sacked for a huge loss. You might even say they are facing third and long.
But they might not be punting anytime soon, and we are in the first quarter of a game that likely comes down to the final play.
And maybe even overtime.
So let’s take a moment to talk about what could happen next, and where this might all ultimately end up. But before we dive in it is important to note that while I was not the world’s greatest attorney — the fact that I’m now a sports writer and no longer practicing law speaks to that point — I did spend a decade practicing civil litigation. While I never practiced in the Ninth Circuit, I do have some appellate experience on my resume, which is lying around here somewhere …
What happens next?
NFL fans are about to get a crash course in complex civil litigation, and the associated calendar and scheduling issues associated with such matters.
At the outset, it seems worth mentioning that this case was originally filed in 2015. That’s right, it took almost a decade to get to this point.
And we might still be in the first quarter.
The next step following this verdict comes at the end of July. That is when Judge Philip Gutierrez, who was the trial judge in this matter, will hear post-trial motions. That hearing is set for July 31.
The NFL will likely file motions along various lines, including a motion for judgment notwithstanding the verdict (JNOV). Simply put, this is a motion arguing that no reasonable jury could have found what the jury in this case did, given all the facts that were elicited at trial.
In football terms, this is probably on par with a Hail Mary, but it is important to note that at certain points in this trial Judge Gutierrez expressed some skepticism — if not downright frustration — with the case set forth by the plaintiffs. At one point Judge Gutierrez went as far as telling plaintiffs’ counsel “[y]ou really have nothing” regarding their case, and at another point chastised plaintiffs’ counsel for overcomplicating the trial. “The way you have tried this case is far from simple,” Gutierrez told attorneys representing the subscribers. “This case has turned into 25 hours of depositions and gobbledygook. … This case has gone in a direction it shouldn’t have gone.”
Still, that does not mean that Judge Gutierrez will be inclined to completely set aside the verdict, and there are other pathways the league can explore at the post-trial hearing. They can file a motion seeking remittitur, arguing that the damages award in this case rendered by the jury is excessive.
Finally, as set forth by Michael McCann in his analysis of where the case stands, the NFL could seek to have Judge Gutierrez table any potential changes to the “Sunday Ticket” structure until the case reaches its full resolution.
Regardless of what Judge Gutierrez decides to do — whether on July 31 or sometime after if he takes matters under advisement to render decisions on a later date — the league is likely going to appeal this matter to the Ninth Circuit. In a statement following the verdict, the league indicated that they would “ … certainly contest this decision as we believe that the class action claims in this case are baseless and without merit.”
Again, they are not punting anytime soon.
Should they appeal this matter to the Ninth Circuit, we are then talking about months, if not longer, for the Ninth Circuit to weigh in on the case. As noted by McCann in his above analysis, “ … Ninth Circuit appeals often take in the ballpark of a year-and-half to nearly three years.” And the league would simply wait on making any changes to their “Sunday Ticket” structure until, as they would likely argue, the case “reaches a full-and-final resolution.”
But we might not get that from the Ninth Circuit.
Yes, this could go to the Supreme Court.
Could this really go to the Supreme Court?
An often-used joke in everyday life, when someone endures the slightest of grievances, is the line “I’m taking this to the Supreme Court.”
That might actually happen here.
The reason? As my own Constitutional Law professor Michael Gerhardt drilled into my brain the first semester of law school, the Supreme Court is the final arbiter of questions of federal law. And while the case against the league is fascinating concerning what it could mean for the NFL and its fans, there is actually a fairly interesting — if dry — federal question at issue here.
That is the current applicability of the Sports Broadcasting Act, found in 15 US Code Sections 1291-1295.
Passed in 1961 and signed into law by President John F. Kennedy, the SBA adjusted federal antitrust law to allow sports leagues to pool broadcasting rights of all their teams and sign exclusive league-wide deals with networks.
In the case at hand, Plaintiffs argued that the SBA does not apply to the “Sunday Ticket” package because the SBA applies to “over-the-air” broadcasts, and not cable or satellite packages. In contrast, the league asserted that the SBA barred the Plaintiffs’ claims, arguing that the language of the SBA enables the league to set up a service such as “Sunday Ticket.”
Judge Gutierrez previously brushed this claim by the league aside. In his earlier decision denying the NFL’s Motion for Summary Judgement, Judge Gutierrez cited earlier decisions by the Ninth Circuit in doing so:
“And the Ninth Circuit expressly distinguished between “the NFL’s collective sale of telecast rights to free, over-the-air television networks [which] was squarely covered by the SBA” with “league contracts with cable or satellite television services, for which subscribers are charged a fee,” which the SBA does not exempt from antitrust liability.”
This is the kind of federal law question that the Supreme Court might want to weigh in on, given the direction sports broadcasting is moving right now, toward more cable and satellite television services.
Which would mean an even longer delay to a final resolution.
What happens in the interim?
What happens in the interim, you might ask?
We wait.
Because the wheels of civil litigation grind slowly, there is likely a post-trial process that will play out over months if not years.
So if you are a previous subscriber to “Sunday Ticket” on DirecTV, you might not want to be running to the mailbox every day waiting for a check.
