The battle of the briefs continues, with $14.1 billion on the line.
In response to the NFL’s 25-page memorandum of law outlining the umpteen reasons why the $4.7 billion Sunday Ticket antitrust verdict should be overturned, the plaintiffs have submitted a 25-page memorandum of law responding to the NFL’s many, many (many) arguments. PFT has obtained and reviewed a copy of the document.
The biggest sticking point, as explained in our item about the brief and in a more recent effort to predict the response, relates to the jury’s apparent effort to calculate a verdict literally on an iPhone.
The league believes that amounts to a rejection of the two formulas the plaintiffs presented, which (in the NFL’s opinion) prevents the jury from coming up with their own methodology. The plaintiffs argue that, basically, violations of the antitrust laws naturally require a little fuzzy math to rectify.
The plaintiffs submitted evidence of $7 billion in losses to the members of the class. That number came from the difference between the real world, in which the NFL overcharged for Sunday Ticket in order to ensure that many would opt to watch the games offered by their local CBS and/or Fox affiliates, and an alternative universe in which the NFL would have sold the out-of-market games to the various cable channels, allowing fans to simply flip the dial and watch any game at no extra charge.
“The jury heard a proper model, the history of college football telecasts, as a real-world yardstick from which it could have concluded class members would not have paid anything above the price of a regular DirecTV subscription but for the restraints, yielding $7 billion in damages over a 12-year class period,” the plaintiffs argued in their brief.
With the actual number on the verdict form — $4.7 billion — being lower than the amount the plaintiffs submitted, the outcome reflects (in the opinion of the plaintiffs) “a just and reasonable estimate of damages.”
Regarding the characterization of the outcome as the product of a “runaway jury,” the plaintiffs explain that "[t]he Court closely supervised and managed the trial and carefully instructed the jury on the law,” that the "$4.7 billion award here was substantially less than the total amount Plaintiffs reasonably asked for ($7 billion) and $10 billion less than the total licensing revenue the NFL received from DirecTV for Sunday Ticket during the class period ($15 billion).”
Is the number big? Yes. The plaintiffs also point out that it isn’t “unusual for modern antitrust cases to have a recovery in the billions of dollars given the volume of commerce at stake.”
Still, it’s impossible to determine the precise number of billions lost, where (as here) an antitrust violation created a warped reality. The plaintiffs also note that, if the NFL had wanted to offer a reduced formula for calculating damages, it could have. The league opted not to do so.
The brief ends with this observation: “Those who violate the antitrust laws and thereby prevent a competitive market from existing may not escape accountability by complaining that damages cannot be measured with precision.”
The league has made that very complaint, in an effort to drive the verdict all the way down to $1. The plaintiffs, in their brief, dismiss the effort to reverse engineer the jury’s verdict as “conjecture.”
Next, the NFL will get the last word in writing. Then, Judge Philip Gutierrez will hear arguments from the parties on July 31. Eventually, the judge will issue a decision.
Inevitably, the case will be appealed — all the way to the United States Supreme Court. With that much money on the line, there’s no way either side will accept defeat unless and until every legal stone has been turned.