With widespread accounts that the judge’s minor tantrum against the plaintiff’s case has generated a reaction from some that he is about to throw the case out of court, it is easy to forget that the litigation is still ongoing. Not fired. And heading towards a jury verdict.
After a Wednesday break in the Sunday Ticket trial, testimony resumed Thursday. Via Craig Clough of Law360.com, Stanford economist Douglas Bernheim returned to the stand, spent the entire day testifying, and will finish his testimony when the trial resumes Monday.
Since Bernheim is the last witness scheduled for the NFL, the question is 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 jury instructions and make closing arguments.
As for Bernheim, the NFL used him to paint a parade of horrible things regarding the potential implosion of the current NFL television model, which involves the league, not the teams, selling broadcast rights to networks. Although the current case focuses solely on the way the NFL prices the off-market package, the league is trying to push the idea that the entire operation will fall apart if teams are required to sell their own rights.
Basically, popular teams would make a lot more money, less popular teams wouldn’t make as much, the salary cap could implode, and football could decline because the competitive balance would become imbalanced.
These should not be concerns for the current case, which is not as broad in scope. Without being in the courtroom, it is difficult to know why the plaintiffs’ attorneys did not object to each and every question and testimony intended to make the jury think that this rather 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 this is where the case is. (On Thursday, Joe Reedy of the KeynoteUSA published a solid summary of how the case got to where it is.) Bernheim will finish his testimony on Monday. Plaintiffs will or will not call rebuttal witnesses. The NFL will argue (without the jury present) that the judge should rule as a matter of law for the league. The judge, as almost all judges do at that point in the trial, will let the jury resolve the matter. The jury will do so, after instructions and final arguments.
Then the verdict will come. And if the plaintiffs win anything, it will be tripled under antitrust laws.
Remember this. If the NFL loses, the judge could still rule regardless of the verdict for the league. That’s a real possibility, given his comments 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 forward with the case.)
If the judge upholds the verdict, the NFL will appeal to the United States Court of Appeals for the Ninth Circuit. If the NFL loses in the appeals court, it will undoubtedly take the case to the United States Supreme Court. Before the Supreme Court can rule on the case, it must first decide whether to accept it.
According to the United States government, the Supreme Court accepts between 100 and 150 of the more than 7,000 cases it must review each year. So at least four of the nine judges will have to agree to take the case, before at least five of them can rule in favor of the NFL.
Given the current pro-business makeup of the Supreme Court, it’s not a long shot. At the very least, it will give Judge Clarence Thomas a chance to earn the Super Bowl ring he once received from Cowboys owner Jerry Jones.
Keynote USA
For the Latest Sports News, Follow Keynote USA Sports on Twitter.