Doug Bernheim was retained on behalf of the NFL in In re National Football League’s “Sunday Ticket” Antitrust Litigation. Two classes of plaintiffs—residential and commercial subscribers to NFL’s Sunday Ticket package—alleged violation of US antitrust laws. They argued that the agreements between the NFL, its teams, and their broadcast partners to pool the teams’ telecast rights to out-of-market games and grant the distribution of NFL Sunday Ticket exclusively to DirecTV suppressed the output of out-of-market game telecasts, resulting in higher prices for NFL Sunday Ticket subscribers.
In his June 2024 trial testimony, Dr. Bernheim described the substantial procompetitive benefits associated with the challenged conduct, including a high degree of competitive balance within the NFL and a large number of free over-the-air broadcasts of NFL games provided to fans. He also detailed numerous significant deficiencies in the plaintiffs’ liability expert’s analysis, including the expert’s failure to consider the teams’ economic incentives in his envisioned but-for world modeled after college football.
The jury initially concluded that the NFL, its teams, and DirecTV violated Sections I and II of the Sherman Act and awarded the plaintiffs $4.7 billion in damages. Following the trial, the NFL filed a renewed motion for a judgment as a matter of law, challenging the sufficiency of the evidence that plaintiffs presented at trial.
Several weeks later, US District Judge Philip S. Gutierrez vacated the verdict, finding that plaintiffs’ experts’ testimony proffered at trial was unreliable and also noting that the jury had failed to follow his instructions. He concluded that the liability expert’s but-for world analysis was not based on a reliable methodology and that the damages expert failed to define his “direct-to-consumer” product with sufficient specificity.
The case received extensive media coverage, including from ESPN, the Washington Post, the New York Times, and the Associated Press.
