It’s always risky to predict the outcome of a court case based on the questions asked by the judges, meaning that which side took the brunt of the queries is not necessarily the loser. But it can be a pretty good indicator all the same. So, the NFL can’t be feeling very good about its chances of keeping the lawsuit against Sunday Ticket dead and buried after a 45-minute hearing before three Democrat-appointed judges on the Ninth Circuit Court of Appeals.
In 2024, a jury ruled the NFL’s Sunday Ticket package illegally restrained trade and awarded the plaintiffs–restaurant owners and general consumers–$4.7 billion in damages. However, the judge overseeing the case–a Republican appointee– overturned the decision, writing that two of the plaintiffs’ experts’ testimony had to be thrown out, and the damages were calculated based on a misunderstanding of the figures presented during the trial.
Now, nearly two years later, the three judges peppered the NFL’s outside counsel–former solicitor general Paul Clement–with a barrage of questions and statements during the oral arguments before the Ninth Circuit.
“My fundamental problem with this, your position, is taking all of this from the jury,” said Judge Joan Humphrey Lefkow, a Clinton appointee. “I know. I mean, juries are imprecise. It’s an archaic sort of process we have to follow, for resolving disputes. And you know, as a trial judge, there have been many times I could point to where the jury came to a result that as long as the instructions were valid and correct, then we accept the jury’s verdict. So if you know this judge, you know, remarkably, very soon after the verdict, decides to take it away from the jury.”
Judge Anthony Johnstone honed in on the trial judge’s main justification for disallowing the testimony of economic expert Dr. Daniel Rascher: his comparison of the NFL to college football. The plaintiffs argue the NFL should not be allowed to pool the out-of-market TV rights as done through Sunday Ticket, and pointed to college football, where 40 games are on national TV on a given weekend, as a model.
Johnstone asked why this was not commonsensical to compare the two, as both are enormously popular football leagues. Clement responded that the NFL’s pooling rights–at least for the Sunday afternoon games–are allowed under the 1961 Sports Broadcasting Act, whereas college football is not covered by that legislation. However, some power brokers in college football are currently exploring the pooling of rights to combat rapid changes to their sport.
Earlier, Johnstone asked the plaintiffs’ attorney, Amanda Bond, why testimony from former CBS Sports chief Sean McManus arguing that allowing wider distribution of Sunday Ticket would undermine his TV package was not compelling and would invalidate Dr. Rascher’s thesis. The economist predicted that removing the restraints on Sunday Ticket would result in all market games being free on cable. She replied that CBS was part of the overall conspiracy to restrict wider distribution of Sunday Ticket, and jurors assessed the two testimonies and discounted McManus’s arguments.
So Johnstone picked up on this in asking Clement why the sophisticated parties wouldn’t work out a new Sunday Ticket paradigm akin to the wider distribution in college football. Clement responded that this model would force CBS and Fox to possibly sell games to their rivals, like NBC and ABC. And later he said teams could then sell their own out-of-market games, possibly making the contests more pricey. But the judges did not seem satisfied.
It’s not that the judges did not ask Bond, the plaintiff’s lawyer, some tough questions. Johnstone seemed unswayed by her defense of the jury’s damages valuation. She had to parry questions on why the SBA did not make it a problem that Dr. Rascher compared the NFL, which is covered under the SBA, and college, which is not.
Appellate courts generally move slowly, so when a decision will come is unclear; hopefully, by the fall. The loser can always appeal to the full Ninth Circuit, and then to the Supreme Court. The plaintiffs are also seeking an injunction against the current Sunday Ticket’s pooling of TV rights, while the NFL is seeking to have the class certification revoked. A decision could sidestep that and just return the case to the lower court.