The U.S. Department of Justice submitted an amicus brief to the Ninth Circuit Court of Appeals last week arguing in favor of plaintiffs who sued the NFL in a class-action lawsuit surrounding the legality of NFL Sunday Ticket. Ahead of kickoff of the NFL season last year, a jury in Los Angeles awarded customers $4.7 billion in the antitrust case surrounding the out-of-market broadcasting package, which has been in operation since 1994. The lawsuit asserted that the league had inflated the price of NFL Sunday Ticket by offering the package exclusively through DirecTV, and the jury subsequently found the league liable. Yet the federal judge presiding on the case overturned the verdict, citing incorrect methodologies and unfounded claims.
“The United States urges this Court to vacate the judgment and remand for further proceedings,” the argument reads. “In dismissing Plaintiffs’ claims for injunctive relief, the district court apparently relied on an evidentiary failure regarding expert testimony that, in its view, doomed Plaintiffs’ damages claims. But even assuming the court did not abuse its discretion in excluding Plaintiffs’ expert testimony, different standards apply for damages and injunctive claims: a plaintiff seeking damages must show an actual injury, while a plaintiff seeking an injunction must show only a threatened loss.”
The amicus brief does not assert an opinion on whether or not the judge was correct to overturn the verdict; however, it does assert the troubling nature of granting a Daubert motion within the trial. This legal request excludes testimony from experts or science-based evidence from a trial, something the document refers to as a “usurpation of the jury.” At the same time, the brief articulates the qualitative evidence utilized to establish “a rule-of-reason violation” was not seriously considered to ground “findings of actual injury and damages.” The league continues to offer NFL Sunday Ticket, albeit through YouTube for the last two seasons under a seven-year deal reportedly worth a total of $14 billion.
“When the NFL removed Sunday Ticket from DirecTV, it looked for a provider that would maintain Sunday Ticket’s high price,” the brief reads. “During negotiations with Apple, the NFL internally discussed ‘a suggested retail price model that would provide incentive for them to keep the price high.’ The NFL rejected a bid for Sunday Ticket from ESPN, because of ‘the low NFL Sunday Ticket price points they wanted to offer, $70 a season, and offering to sell on a team-by-team product,’ which were ‘not going to be complementary to Sunday afternoon.’ The NFL settled on YouTube, which charges $349 per year to YouTube TV subscribers and $449 to non-subscribers.”
The government agency stated, “The NFL’s illegal actions are continuing,” and urged the court to “vacate the district court’s judgment” and bring the case back to the district court to consider evidence of threatened loss for the Plaintiffs. Moreover, it contends that millions of fans are facing a choice to either watch the local games or pay for Sunday Ticket bundle that is says charges “‘premium’ prices.”
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