Plaintiffs will soon respond to NFL’s attack on Sunday Ticket ruling

Two weeks ago, the NFL filed papers seeking to overturn the $4.7 billion judgment in the Sunday Ticket case. The plaintiffs’ response will be filed very soon, perhaps even shortly.

The latest letter from the NFL The focus is on the question of damages. The judgment is being attacked on the grounds that it is a rejection of the calculations presented by the plaintiffs and a made-up formula that was literally entered into an iPhone.

The league’s argument is certainly attractive. The plaintiffs, through their so-called expert witnesses, presented two formulas. The jury did not accept either and came up with its own figure, which, as explained in the NFL’s statement, represents the difference between the list price for the basic Sunday Ticket package in 2018 and 2019 ($294) and the average price that Sunday Ticket subscribers actually paid during the course period ($102.74), multiplied by the membership of the two classes, commercial and residential.

One would likely object that the final figure of $4.7 billion was within the range established by the plaintiffs’ experts. The upper limit ($7 billion) was based on a world in which NFL teams had sold the out-of-market games to various cable channels, so that the games were distributed to all plaintiffs (and the rest of the world) at no additional cost. The lower limit came from trying to imagine a reality with at least one competitor to the exclusive approach the league took when it awarded Sunday Ticket to DirecTV.

The challenge in any case of this nature is to create an alternate universe in which the defendants did not commit antitrust violations. It’s not going to be perfect. You need a crystal ball. You have to guess. And facing that ambiguity should be one of the consequences for parties who violate federal antitrust laws.

How fair would it be if the defendants were allowed to dismantle all of the plaintiffs’ efforts to show the concrete economics that would have resulted had the defendants not violated the antitrust laws? Here, the plaintiffs presented enough evidence to set a cap of $7 billion. The jury went for a much lower amount.

This is not uncommon in civil litigation. In employment litigation, for example, the plaintiff presents evidence of lost wages before trial (which are easy to calculate) and of lost wages from the date of trial to the time the plaintiff would have naturally left the company, reduced to current value. This is called “front pay” and is inherently vague and messy.

Jurors often estimate for themselves how long a plaintiff would have continued working had he not been fired in violation of an applicable legal principle (e.g.Discrimination, retaliation). For example, if the plaintiff is 42 years old and the expert calculates future losses to 65, reduced to present value, the jury is entitled to determine an amount based on employment with the company to a lower age (50, 55, 60, etc.).

In practice, there is room for the jury to compromise. And it happens all the time. In this case, the plaintiffs presented evidence of $7 billion in losses. The jury decided to award $4.7 billion. The argument could/should/maybe will be that the jury has the right to find a formula to arrive at that number, even if the number is very specific and was never presented to them by the plaintiffs’ experts.

Ultimately, the judge must decide whether to let the verdict stand. If he converts the verdict into a judgment, the $4.7 billion will become $14.1 billion under antitrust law.

The tripling of the verdict is one of the concrete consequences for companies that violate antitrust law. Why should there not also be the possibility of blurring the lines and negotiating the jury’s case for the reverse engineering method that should have determined costs in the absence of antitrust violations?