Ninth Circuit throws flag on NFL win against Sunday Ticket subscribers

The appellate panel sent the case back to the lower court in Los Angeles for a new trial on damages, agreeing that the $4.7 billion the jury awarded two years ago wasn't supported by the evidence.(CN) — The Ninth Circuit on Friday threw out the NFL’s win two years ago in an antitrust trial by subscribers to its Sunday Ticket package.In a unanimous decision, the appellate panel reversed the trial judge who, after the jury had returned a $4.7 billion verdict against the league, sided with the NFL anyway.The panel said U.S. District Judge Philip Gutierrez in Los Angeles — who retired from the bench shortly after the trial — had been wrong to exclude the trial testimony by the plaintiffs’ expert witnesses as “unfounded and unreliable,” which left subscribers’ antitrust claims without adequate support.“Because the district court abused its discretion in excluding the expert testimony, it erred in granting judgment as a matter of law,” wrote U.S. Circuit Judge Anthony Johnstone, a Joe Biden appointee.“As a gatekeeper, a district court must screen expert testimony for admissibility, ensuring that it is based on reliable methods applied to sufficient facts to support the expert’s opinion,” Johnstone said. “But a district court must be careful not to let its view of the credibility or merits of an expert’s testimony distort its evaluation of whether that testimony is sufficiently reliable to go to a jury.”The panel sent the case back to the lower court for a new trial on damages only.To prevail on their antitrust claims, the Sunday Ticket subscribers had to convince the jurors of a reasonable alternative: a “but-for world” without the purported anticompetitive restraints, in which they would pay less to watch NFL games on Sunday afternoon that aren’t available on their local broadcast networks.To that end, the plaintiffs called one economic expert who contrasted the NFL’s exclusive broadcasting deals with the way college football has been made available to viewers after the U.S. Supreme Court invalidated the NCAA’s monopoly on marketing the broadcasts.Another expert testified about the possibility of making out-of-market NFL games available through direct-to-consumers media, such as apps or websites, rather than the wholesale Sunday Ticket package.At a March hearing on the subscribers’ appeal, the Ninth Circuit judges had already expressed their misgivings about the trial judge’s exclusion of the plaintiffs’ experts.Johnstone and U.S. Circuit Judge Holly Thomas, also a Biden appointee, didn’t seem persuaded that comparing the way college football games are distributed on television with the NFL was somehow inappropriate.“If that’s not a yardstick, what is?” Johnstone wondered.The panel, however, upheld Gutierrez’s ruling that the $4.7 billion in damages the jury awarded was based on “speculation and guesswork.”“The jury clearly awarded damages based on its improper consideration of the evidence rather than according to the district court’s instructions,” Johnstone wrote.Attorneys for the NFL and the subscribers didn’t immediately respond to requests for comment.CBS and Fox broadcast the NFL’s Sunday afternoon games through their local affiliates. They typically show the games by local teams in these teams’ markets. Avid fans who want to watch games by teams outside their local market have to get a Sunday Ticket package now offered by YouTube TV for about $480 for returning subscribers.The subscribers claim the NFL inflates the prices of the package in order to minimize competition with the popular CBS and Fox broadcasts for which the networks pay the league billions of dollars a year. The subscribers argued at trial that, if the out-of-market games were available for free, viewership of the CBS and Fox broadcasts would drop along with their advertising revenue.As a result, the networks would be unwilling to pay the league the same steep prices for the broadcast rights.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads