NFL awaits key appeals court ruling in Sunday Ticket case

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Monday's NFL news focused on free agency. There was another development that could lead to an outcome that will dwarf the value of the contracts negotiated that day. The Sunday Ticket class action returned to court, for oral argument on the appeal of the trial judge's decision to throw out a $4.7 billion antitrust verdict entered by a jury against the league. As explained by Ben Fischer of Sports Business Journal , the case drew a panel of three judges who had been nominated by Democratic presidents : Anthony Johnstone, Joan Lefkow, and Holly Thomas. That alone is good news for the plaintiffs and bad news for the NFL. It's widely regarded throughout the legal community that, in civil cases, federal judges nominated by Democratic presidents will be more favorable to individual interests and federal judges nominated by Republican presidents will be more favorable to business interests. (That basic fact tends to trigger some; it doesn't make it not a fact.) The trial judge, Philip Gutierrez, wiped out the damages award based on concerns about the quality of the testimony used by the plaintiffs to prove the financial harm resulting from the NFL's antitrust violation. If the lower court's ruling is overturned, the verdict could be reinstated or a new trial could be ordered to determine the magnitude of the harm to the nationwide classes of individual consumers and bar/restaurant owners. The harm can't be zero. The basic argument is that the NFL insisted on Sunday Ticket being priced high enough to discourage consumers from buying it — and in turn to encourage them to watch the "free" broadcasts on their local CBS and/or Fox affiliates. The league's overriding plan, as proven repeatedly in the evidence introduced at trial (we bought and read the entire transcript), was to balance the in-market and out-of-market packages, maximizing the total revenue the league receives from both. By acting collectively to influence the pricing of Sunday Ticket, the 32 independent businesses that make up the NFL violated the antitrust laws. And any final judgment will be tripled, under those same antitrust laws. For example, $4.7 billion would become $14.1 billion. Eriq Gardner of Puck predicts that the scuttling of the $4.7 billion verdict will be reversed by the appeals court . Judge Lefkow, per Gardner, called the judge's decision to scrap the verdict "remarkable." Judge Johnstone's questions hinted in part at the possibility of an injunction. An injunction would make sense, because the antitrust violation continues. The price charged for Sunday Ticket is still inflated to protect the CBS and Fox agreements. Fans of, say, the Dolphins who live in, say, Minnesota still have to pay an inflated price for the entire package of out-of-market games. And the league has marketed Sunday Ticket as a tool for displaced fans to watch their favorite teams, while deliberately thumbing the scale to ensure that plenty of fans will settle for the games available on their local three-letter networks. Through it all, the league has harped on the availability of games on "free" TV. But the dirty little secret that continues to hide in plain sight is that the league wants Sunday Ticket to be expensive enough to deter millions of consumers from seeing the games they prefer to watch. A reckoning is inevitable. And the end result will be good for the customers about whom the NFL pretends to care. We'll all have more flexibility to watch more games for less money. For now, the fan…