The wheels of justice move slowly but surely. In two weeks, the most significant event yet will happen regarding the appeal of the July 2024 verdict against the NFL in the Sunday Ticket case.
On Monday, March 9, the lawyers will gather in the U.S. Court of Appeals for the Ninth Circuit to conduct oral argument on the question of whether the $4.7 billion verdict (which would be tripled to $14.1 billion if/when it becomes an official judgment) will be reinstated.
The jury found that the Sunday Ticket package, as currently structured, violates federal antitrust law. The judge, Phillip Gutierrez, threw out the damages award.
Basically, the league lost before the jury, and it won before the judge (who has since retired). The appeals court could reinstate the full award.
The threshold question is which three of the 51 judges assigned to the Ninth Circuit will hear the case. That parties to a federal appeal usually find out when they show up for the hearing. To get a win, two of the three judges must be persuaded to accept one side's arguments.
Previously, a three-judge panel on the Ninth Circuit overturned a dismissal of the entire case, allowing it to proceed to discovery and trial. The new panel could put the NFL on the hook for the full $14.1 billion.
The NFL would keep appealing, if it loses. The stakes are too high. The check would be too big, at $440 million per team.
Regardless of what happens in the current case, the jury's finding that the Sunday Ticket package violates federal antitrust law points to an eventual reckoning for the NFL regarding the way it makes out-of-market games available to fans. The transcript of the trial was replete with evidence of efforts by the NFL, working as a 32-team cartel, to insist that the Sunday Ticket package be priced at a level high enough to nudge consumers toward accepting the "free" over-the-air broadcasts in their local markets, in order to enhance the ratings for CBS and Fox.
Basically, the league had a needle to thread, a balance to strike. With CBS and Fox paying billions per year for their Sunday afternoon packages and DirecTV (now YouTube) doing the same for the out-of-market package, the NFL managed to have its in-market cake and out-of-market eat it.
The model continues. The exposure lingers. The flaw in the current case, per the judge who threw out the verdict, was the evidence regarding damages. But the violation was proven. It would be proven again in the next case. And the next. And the next.
Unless and until the NFL comes up with a different way to deliver out-of-market games to consumers who have paid much more than they should have been paying — since 1994 — to watch the games they want to watch.
The package is marketed as a way for, say, fans of the Steelers to watch Steelers games wherever they live. There's never been an option to do that and only that. Instead, it's always been a one-price, all-or-nothing product that forces consumers to pay enough to get many who would flock to the product to accept the games available on their local CBS and Fox affiliates.
Even if they strongly prefer to watch some other game.