Thrown For A Loss? Here Comes The Challenge Flag

Leave it to the NFL and the judicial system to find a way for the league to still dominate headlines even during  perhaps the least likely time of the year for it to find a way there with actual news about players and teams.  This was how YAHOO! SPORTS’ Ian Casselberry broke the story yesterday afternoon:

The NFL has been ordered to pay $4.7 billion in residential class damages and $96 million in commercial class damages by a federal jury in a class action lawsuit filed against the league by subscribers to “NFL Sunday Ticket.” The verdict was first reported by journalist Meghann Cuniff.

The lawsuit argued that the NFL, its teams and its network partners (DirecTV, CBS, ESPN and Fox) violated antitrust rules by working together to limit competition and sell the out-of-market TV package at an inflated price.

Plaintiffs included more than 2.4 million residential subscribers and more than 48,000 restaurants, bars and other commercial establishments that purchased a subscription to “Sunday Ticket.” The lawsuit was originally filed in 2015 on behalf of San Francisco’s Mucky Duck sports bar, alleging that DirecTV, CBS, ESPN and Fox violated antitrust law by suppressing competition in exclusive agreements with the NFL that restricted fans’ ability to view out-of-market games.

The plaintiffs sought $7 billion in damages in the lawsuit. Under federal antitrust law, damages can triple, so the $4 billion of the verdict will increase to $12 billion, according to Spotrac.

And since I was one of those 2.4 million residntial subscribers during that period, I suppose I should be doing my own victory lap.   But in the words of that college football legend Lee Corso, “not so fast, my friend”.

As THE ATHLETIC’s Jacob Robinson reminded in his publication’s THE SCOOP newsletter yesterday:

(W)e have a long way to go…It took nine years before Sunday Ticket subscribers saw their day in court…(T)he NFL has refused to settle, likely for two reasons: (1) They think they can win and (2) They need to win. 

And as Castleberry further noted, the league has indeed already started its counterpunch:

The NFL intends to appeal the decision to U.S. District Judge Philip Gutierrez, arguing that the damages are “excessive and unreasonable,” via Sportico’s Michael McCann. The league also issued a statement saying it’s “disappointed with the jury’s verdict today.”

“We will certainly contest this decision as we believe that the class action claims in this case are baseless and without merit,” the NFL said in the statement.  

The NFL, team owners including Jerry Jones and Robert Kraft, and commissioner Roger Goodell argued in testimony that “Sunday Ticket” was “a premium product” not concerned with drawing big subscriber numbers because the league did not want to adversely affect ratings for its TV partners.

Interestingly, it was one of the league’s most supportive media partners that seemed to be part of the smoking gun that apparently swayed the jurors.  Again per Castleberry:

(A) 2021 email from ESPN proposed a lesser package with a price of $70 per season that the NFL rejected, according to The Boston Globe. The “Sunday Ticket” service is now available through YouTube TV and was priced at $349 last season.

Would one therefore be surprised that some fairly revealing hindsight about who and how the NFL’s court gameplan was executed just happened to come from an ESPN legal analyst?

Considering the case involved antitrust law, the NFL’s decision to use attorney Beth Wilkinson was curious because she has no experience in litigating such cases, a source told ESPN’s Don Van Natta Jr.

A few of Van Natta’s X-eets from yesterday:

The lead lawyer for the NFL in the Sunday Ticket trial was Beth Wilkinson, who investigated Dan Snyder on behalf of the league and whose report was conveniently buried. A major defeat for Wilkinson and the league.

Beth Wilkinson had zero antitrust trial experience prior to this case (she has worked on a few antitrust cases, according to her law firm’s website).

With billions of dollars on the line, the NFL sent a rookie into battle on its behalf. It’s mind-boggling.

Look, I somehow made it through last year without Sunday Ticket.  Once the price went up to $450, and last year YouTube didn’t even allow for monthly payments, I found a way to otherwise cope.  And a closer look at exactly how much one gets for their money these days is telling.  When the lawsuit was first filed in 2015, roughly 20 percent of the regular season games (51 of 256) were airing in prime time on national networks, which Sunday Ticket has no connection to whatsoever.  For the upcoming season, that proportion is just about 25 percent. (66 of 272).    Furthermore, with more primetime games, that means local over-the-air slots are being filled with games of consequence that get wider regional windows.  That means my favorite teams tend to air more often on Sundays even on out-of-market stations.  And that’s assuming their games actually matter.  Considering my teams have included the Jets and Giants, that frequently hasn’t been the case, especially once Halloween comes and goes.

But I’ll sure be paying attention because, by my count, as someone who was around for a great deal of that period, even at a diminished net price because of discounts that conceivably could be a few hundred or more in my pocket, and perhaps four figures if indeed those damages are trebled.

But I’ll confess–if indeed the windfall is enough to cover some of my more pressing expenses, you know where that extra cache is likely to go, don’t you?

A coupla payments for NFL Sunday Ticket.



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