The Department of Justice asked a federal appeals court Friday to revive part of the lawsuit against the NFL for how it operates Sunday Ticket, leaving no doubt it believes the out-of-market games package is illegal as currently organized.
A federal jury in early July 2024 awarded consumer and retail plaintiffs $4.7 billion after deciding the NFL by pooling its 32 team rights had kept the price for Sunday Ticket artificially high. But in a surprise development, the federal judge overseeing the case threw out the verdict, saying the jury came to illogical conclusions, and witness testimony for the plaintiffs never should have been allowed in.
The case is on appeal.
“The decision below not only tossed out a multi-billion-dollar jury verdict in Plaintiffs’ favor after finding enough evidence to support the jury’s verdict of harm to competition,” the DOJ amicus brief to the Ninth Circuit Court of Appeals reads. “It also dismissed Plaintiffs’ claims for injunctive relief without any legal analysis to justify doing so.”
The judge in the case did not allow injunctive relief to be discussed at the trial, but in his decision overturning the verdict, he ruled against it.
“The district court erred by dismissing Plaintiffs’ injunctive claims on the basis that Plaintiffs failed to show actual injury, without ever considering threatened loss,” the DOJ wrote.
While the DOJ officially is not taking a position on whether overturning the verdict was wrong, it leaves no doubt that is what it thinks.
“The United States takes no position on Plaintiffs’ damages claims, but the district court’s usurpation of the jury, by way of granting a Daubert motion it already denied post-verdict, is similarly troubling, as is the court’s failure to consider seriously whether the qualitative evidence that established a rule-of-reason violation could have grounded findings of actual injury and damages.”
A Daubert motion is a legal challenge to exclude expert testimony or science-based evidence from a trial.
When directly discussing the NFL, the DOJ did not mince words, accusing the league of breaking the law.
“The NFL’s illegal practices are continuing. As a result, millions of NFL fans across the nation will continue to face a choice—watch only limited local games or pay “premium” prices for the Sunday Ticket bundle. Given that the challenged conduct has been found to have anticompetitive effects—yet continues out in the open—Plaintiffs are at least entitled to an opportunity to show that they meet the threatened loss standard for an injunction.”
Notably, the DOJ writes the court should consider recent NFL media deals such as the Christmas Day games with Netflix. While that deal falls well outside the period of the class action, the DOJ’s point is an injunction to prevent future harm. Justice’s point about Netflix appears to be that by taking two games and making them nationally available, the NFL is reducing the number of games in that week’s Sunday Ticket packages, further harming those consumers.
What impact DOJ’s amicus motion will have is unknown, but is probably modest due to the change of administrations Monday. Trump’s DOJ is likely to be more business-friendly. On the other hand, Trump is no fan of the NFL and likes to take potshots at the league for political gain.
The Ninth Circuit has already sent the case back once, in 2019, after a different judge dismissed the case.
About Daniel Kaplan
Daniel Kaplan has been covering the business of sports for more than two decades. A proud founding reporter of SportsBusiness Journal, he spent the last four years at The Athletic.