The NFL got a significant victory in court last August when federal district court judge Philip Gutierrez overturned a $4.7 billion jury award (which could have been tripled under antitrust law) in a class-action lawsuit arguing the league’s NFL Sunday Ticket package was anti-competitive and an antitrust violation.
Gutierrez’s ruling discussed issues with the testimony of the plaintiffs’ economic experts and, particularly, problems with the way damages were calculated.
The plaintiffs appealed Gutierrez’s ruling to the Ninth Circuit shortly after it came down. And they received support from a Department of Justice amicus brief last week, which included an argument that they could qualify for injunctive relief (which, here, would mark the courts forcing the NFL to change how it approaches selling out-of-market games), not just damages.
Puck’s Eriq Gardner reported earlier this week that their appeal was recently resubmitted with an alternative formula for calculating damages:
This past week, the class-action lawyers resubmitted their initial appellate brief—still under seal—and added an alternative damages calculation under a different formula.
One result of the appeal may be an injunction that would prevent Sunday Ticket from continuing with its latest provider, YouTube TV—especially after Biden’s Justice Department, in one of its final actions, threw its support behind the plaintiffs. “The NFL’s illegal acts are continuing,” the government stated, arguing before the 9th Circuit Court of Appeals that the plaintiffs shouldn’t be required to quantify an injury to qualify for injunctive relief.
The damages formula was a key part of last summer’s contentious trial. June’s verdict came after Gutierrez criticized the plaintiffs’ attorneys’ handling of the case, including on the economic testimony. The NFL specifically went off on these damages in their post-verdict motion for judgment in July, calling the verdict “nonsensical” and “among the least defensible” in American history.
In that motion, the league argued that the jurors calculated an “overcharge” for the 12 years covered here based on the $191 difference between the $294.00 list price of Sunday Ticket Basic in 2018 and 2019 and the average actual price of $102.74 (with promotional discounts factored in) paid by residential subscribers over the whole class period, then multiplied that by the number of people in the class. That led to an award of $4.6 billion for residential subscribers (24.1 million over that period) and $96.9 million for commercial subscribers such as bars and restaurants (506,780 over that period). The NFL claimed that logic was “made up” and “makes no sense.”
It’s unclear just what’s in this alternative formula for damage calculation. But it’s certainly notable to see one submitted as part of this appeal, with the specific dollar figure here and how the jurors arrived at it such a part of the NFL’s pushback to that verdict. The league likely wouldn’t just accept a different number for damages, as they’ve maintained throughout they did nothing wrong, but an alternative formula is significant for potentially allowing the appeal or a new trial to get rid of a key part of what the NFL objected to here.
Of course, the damages calculation was not the only thing Gutierrez took exception to. There was the aforementioned criticism during the trial on how the plaintiffs’ attorneys approached the case and what other angles they tried to bring in. The eventual ruling here cited issues with their economic experts (also a key part of the NFL opposition), although Pro Football Talk’s Mike Florio accurately noted in his profane criticisms of the ruling that Gutierrez allowed those experts to testify.
It’s far from certain that the alternative formula approach will be enough for a successful appeal. But, interestingly, the plaintiffs have submitted one. There’s at least a possibility that could make a big difference to how this eventually plays out. This adds to the case that the NFL may not be quite out of the antitrust woods on this front just yet.
