A criminal trial boils down to one big question: did the defendant do it? A civil trial has two big questions: did the defendant do it, and if so, what were the monetary damages?
In the NFL’s last major antitrust trial, 38 years ago, the NFL ruled that it had violated the law with respect to the USFL, but that the USFL had failed to prove financial damages. In the ongoing Sunday Ticket trial, testimony has shifted to focus on economic experts regarding the harm suffered by consumers as a result of the NFL’s alleged antitrust violations.
In antitrust cases, monetary damages are even more important because, by law, awards are tripled upon judgment.
Let’s pause here and evaluate the big picture. This is a significant case that could cost the NFL billions of dollars in damages and force them to fundamentally change how they distribute their games to consumers. And almost no one is covering this case. We have to constantly search for whatever information we can find, and we often find it on non-mainstream news sites.
Craig Clough of Law360.com Thursday’s testimony The plaintiffs’ final witness in chief and the defendants’ first witness in chief appeared. Both were economic experts who argued about the impact of purported efforts to keep Sunday Ticket prices high and subscription numbers low.
When losses need to be carefully analyzed and calculated, it almost always plays out like this: the plaintiff puts forward a high figure, and the defendant pokes holes in the calculation or puts forward a lower figure.
Earlier this week, Daniel A. Lasher, academic program director and professor of the University of San Francisco’s Master’s in Sport Management program, testified that the damages exceeded $7 billion. On Thursday, John Douglas Zona, who has a PhD in economics from Stony Brook University, SUNY, testified that Sunday Ticket prices were 24.6 percent above the profit-maximizing “sweet spot.”
He described the difference, which he said the NFL demanded from DirecTV a higher price than it wanted to charge, as the “NFL tax.”
On cross-examination, Zona acknowledged that his calculations showed that the average price consumers actually paid for Sunday Tickets was $102.74 (as someone who has paid much more than that for 27 years, I wish I had known there was a cheaper way to do it outside of piracy).
The plaintiffs appeared to take a break after Zona’s testimony, and on Thursday afternoon the NFL called Stanford economist Ali Yurkoglu, whose testimony focused almost exclusively on attacking Zona’s research, to testify again when the trial resumes on Monday.
Typically, juries will be indifferent to this type of testimony. The challenge for the plaintiff’s attorney is to present the jury with the right numbers in closing arguments — numbers that are supported by the evidence at trial. If the jury believes the NFL broke the law, they have to hit a number — and that number has to be supported by the evidence.
The NFL will not only argue that it did nothing wrong, but will also try to prove that the plaintiffs’ numbers are unreliable, so that the NFL has a chance to do the same thing they did in 1986.
They will lose the battle over responsibility, but win the battle over damages.