Jury begins deliberations in class action lawsuit against NFL by ‘Sunday Ticket’ subscribers

Case documents will be brought to federal court in Los Angeles on Monday, June 17, 2024. NFL Commissioner Roger Goodell and Dallas Cowboys owner Jerry Jones, a longtime member of the league’s broadcast committee, are expected to testify in a trial that could last up to three weeks. (AP Photo/Damian Dovarganes)

LOS ANGELES (AP) — The NFL in 2017 explored a world without “Sunday Ticket,” where cable channels would air out-of-market games not on Fox or CBS on Sunday afternoons.

The league demo was shown by the plaintiffs during their closing arguments on Wednesday as the jury in the class action lawsuit brought by “Sunday Ticket” subscribers began deliberations.

After receiving instructions from U.S. District Judge Philip Gutierrez, the jury heard closing statements from the prosecution in the morning. After lunch, the NFL made its final submissions before the prosecution had twenty minutes for rebuttal.

The jury met for 90 minutes before wrapping up the day. Deliberations will continue on Thursday.

In a three-week trial that saw NFL Commissioner Roger Goodell and Dallas Cowboys owner Jerry Jones testify, the April 21, 2017 memo, titled “NFL New Frontier,” provided one of the biggest highlights.

The memo was a reinterpretation of the Sunday afternoon when each game would be on a television or cable network. Fox and CBS would have paid 25% less per game (about $10 million per game), while cable networks would have paid $9 million per game, which was the average DirecTV doled out in its contract with the league.

The figures relate to rights expiring after the 2022 season. Those averages would now be higher with agreements that started last season.

The league memo showed early games on FS1, ESPN, ESPN2, TBS, TNT, NFL Network and CBS Sports Network with late games on FS1, TBS and TNT.

Bill Carmody, one of the plaintiffs’ attorneys, called the memo “one of the most striking documents in the case” during his closing arguments.

“It’s so important because this is a document that says it all that our damages model is based on the NFL, viewed and approved, and in real life, behind the scenes,” Carmody said. “What the NFL is talking about here … is they’re talking about moving forward with the same network games on Fox and CBS, but instead of a subscription, why don’t we put it on basic cable? That’s what we’re talking about. Lose the subscription price, compete, be fair, let’s see what happens.”

However, some of the out-of-market games according to the NFL memo would not be available on basic cable. Fans and cable companies would also absorb some of the costs through higher subscription prices.

The lawsuit covers 2.4 million residential subscribers and 48,000 businesses that paid for the package of out-of-market games from the 2011 through 2022 seasons on DirecTV. It claims the league violated antitrust laws by selling its package of Sunday games at an inflated price. The subscribers also say the league limits competition by offering “Sunday Ticket” only through a satellite provider.

“This matter transcends football. This case matters,” Carmody said. “It’s about justice. It’s about telling the 32 team owners who collectively own all the major TV rights that the most popular content in TV history is what they have. It’s about telling them that even you can’t ignore antitrust laws. Even you can’t conspire to overcharge consumers. Even you can’t hide the truth and think you can get away with it.”

The league claims it has the right to sell “Sunday Ticket” under the broadcast antitrust exemption. Prosecutors say this only affects over-the-air broadcasts and not pay TV.

Beth Wilkinson, the NFL’s lead attorney, said the league has not disputed that “Sunday Ticket” is a premium product and that it has always been marketed that way.

“That was never up for discussion in this case, because none of this is secret. None of it is a surprise,” Wilkinson said in her closing argument. “Nobody in this broadcasting world thinks there’s anything wrong with it. They have failed to bring witnesses into this courtroom who agree with them.”

Even if the jury of five men and three women decide for the plaintiffs, Gutierrez could still rule in favor of the NFL and say the plaintiffs haven’t proven their case.

DirecTV had “Sunday Ticket” from its founding in 1994 through 2022. The league signed a seven-year deal with Google’s YouTube TV that began with the 2023 season.

If the NFL is found liable, a jury could award $7 billion in damages, but that number could rise to $21 billion because antitrust suits could triple damages. It would also change how the league would have to distribute its out-of-market broadcasts and could lead to renegotiation of contracts with Fox and CBS. The current agreements with the league run through the 2033 season.

CBS and Fox together pay an average of $4.3 billion per season for Sunday afternoon games, while YouTube TV pays an average of $2 billion per season for “Sunday Ticket” rights.

The lawsuit was originally filed in 2015 by San Francisco sports bar Mucky Duck, but was dismissed in 2017. Two years later, the 9th US Circuit Court of Appeals, which has jurisdiction over California and eight other states, reinstated the case. Gutierrez ruled last year that the case could proceed as a class action.

Whatever the final decision, the losing party is expected to appeal to the 9th Circuit and then possibly to the Supreme Court.

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