Sunday Ticket trial moves toward jury verdict
With widespread accounts of the judge’s mini-tantrum against the plaintiff’s case creating a reaction from some that he's about to throw the case out of court, it's easy to forget that the litigation remains on track. Not dismissed. And heading for a jury verdict.
After a Wednesday break in the Sunday Ticket trial, testimony resumed on Thursday. Via Craig Clough of Law360.com, Stanford economist Douglas Bernheim returned to the stand, spent the full day testifying, and will finish his testimony when the trial reconvenes on Monday.
With Bernheim being the last scheduled witness for the NFL, the question then becomes whether the plaintiffs will present a rebuttal case. If they do, there will be one or more additional witnesses. If they don't, it will be time to finalize the jury instructions and conduct closing arguments.
As to Bernheim, the NFL used him to paint a parade of horribles regarding the potential implosion of the NFL's current TV model, which entails the league not the teams selling broadcast rights to networks. Although the current case focuses only on the way the NFL prices the out-of-market package, the league is trying to push the idea that the entire operation will fall apart if the teams are required to sell their own rights.
Basically, the popular teams would make a lot more money, the less-popular teams wouldn't make nearly as much, the salary cap could implode, and football could diminish because the competitive balance would be thrown out of whack.
These shouldn't be concerns for the current case, which doesn't sweep quite so broadly. Without being in the courtroom, it's hard to know why the plaintiffs' lawyers weren't objecting to any and all questions and testimony aimed at making the jury think this fairly narrow issue could be the first domino in the collapse of the league. Clearly, that's the impression the league is trying to create.
So here's where the case stands. (On Thursday, Joe Reedy of the Associated Press posted a solid summary of how the case got to where it is.) Bernheim will finish his testimony on Monday. The plaintiffs will or won't call rebuttal witnesses. The NFL will argue (without the jury present) that the judge should grant judgment as a matter of law for the league. The judge, as nearly all judges do at that point in a trial, will let the jury sort it out. The jury will do that, after instructions and closing arguments.
Then, the verdict will come. And if the plaintiffs win anything, it will be tripled under the antitrust laws.
Remember this. If the NFL loses, the judge could still enter judgment notwithstanding the verdict for the league. That's a real possibility, given his comments from Tuesday. (It's also possible that he was simply venting his frustrations, performing for the media, and/or trying to get the plaintiffs to move the case along.)
If the judge upholds the verdict, the NFL will appeal to the U.S. Court of Appeals for the Ninth Circuit. If the NFL loses in the appellate court, it undoubtedly will take the case to the U.S. Supreme Court. Before the Supreme Court can rule on the case, it first has to decide whether to accept it.
Per the U.S. government, the Supreme Court accepts 100 to 150 of more than 7,000 cases it's asked to review each year. So at least four of the nine justices will have to agree to take the case, before at least five of them can rule in the NFL's favor.
Given the current composition of the business-friendly Supreme Court, that's hardly a long shot. If nothing else, it will give Justice Clarence Thomas an opportunity to earn the Super Bowl ring he once got from Cowboys owner Jerry Jones.
