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Sunday Ticket trial, Day One: Picking a jury

As mentioned last night, we’ve purchased the full trial transcript from the Sunday Ticket trial. And we still don’t know what to do with it.

The easiest thing to do is start reading it. All 2,506 pages.

The goal will be to focus on one day of courtroom activity and/or one key moment in the trial at a time.

For day one, there was a single key moment. Jury selection.

At only 88 pages, it’s one of the shortest of the 10 volumes that will inevitably strain my retinas and haunt my dreams over the next couple of weeks. So I read it first, pretending I was sitting in the courtroom and observing the proceedings as they happened.

For those who still aren’t entirely sure what the case was about, here’s the summary Judge Philip Gutierrez gave to the prospective jurors on June 5, 2024:

“This is a class action case brought under the federal antitrust laws against the National Football League and its 32 member clubs. The case involves a television subscription package called NFL Sunday Ticket. On Sundays, during the NFL’s regular season, approximately 10 to 13 football games are played between
10:00 a.m. and 4:00 p.m. Pacific time.

“Of those, three to four games, including those in which a local team is participating, are broadcast on local Fox or CBS stations. These are referred to as in-market games because they are being broadcast into a viewer’s local television market.

“The remaining games played during that period are not broadcast on viewers’ local Fox or CBS stations. They are often referred to as out-of-market games. NFL football fans and businesses could access the complete live broadcast of those out-of-market games only by purchasing NFL Sunday Ticket. During the period in dispute [i.e., 2011 through 2022], NFL Sunday Ticket was available only through DirecTV, a satellite television provider.

“Plaintiffs allege that the NFL and its teams illegally agreed to monopolize the market for telecasts of NFL games and . . . that through a series of interrelated agreements among the NFL, its member clubs, CBS, Fox, and DirecTV, unreasonably limited television viewer access to out-of-market games and kept prices high for Sunday Ticket by agreeing to restrict competition among themselves. . . .

“Plaintiffs also claim the defendants will not be able to show that the agreements served a legitimate procompetitive purpose. Plaintiffs claim that by doing so, the defendants violated a federal antitrust law called the Sherman Act.

“The defendants deny plaintiffs’ claims and contend that the agreements challenged by the plaintiffs ensure that consumers across the United States have broad access to watch competitive and exciting NFL games at various prices, including multiple live games on free broadcast television every week during the regular season. The defendants assert that plaintiffs will not be able to show that the NFL illegally obtained a monopoly, that the agreements at issue were unreasonable, or that any alternative to the current system would have provided the same benefits to the fans.”

That’s the case in a nutshell. With that, the prospective jurors were asked questions that came directly from responses they had previously provided on questionnaires.

The transcript included observations from multiple jurors who were excused for cause, given their apparent inability to be fair and impartial based on the things they said in court. Although their names are included in the transcript, we’ll be omitting them, for present purposes.

Said one prospective juror: “So I mean, no disrespect to the NFL, but honestly I already think that most likely you guys wanted more money and then that’s why the Sunday Tickets were happening and -- to be honest with you, I’m going to lean more towards the plaintiffs, um, just based off of that.”

Another one echoed that sentiment: “I have to agree with her. I -- I, um, don’t think that the prices they are charging are fair. They’re -- I feel like they’re super over-raised and especially because I’ve worked . . . retail for Super Bowl Sunday and I’ve seen, like, the crazy prices and stuff like that and how, like, people get crazy for it. I just don’t understand it.”

Another juror said that he swore off the NFL during the national anthem kneeling controversy, and still hasn’t gone back.

“I stopped watching the NFL,” the prospective juror said in response to a question sparked by his reference to Colin Kaepernick on the jury questionnaire. “I know it’s not related to this, what we’re talking about, but, you know, I did -- I’ll be honest -- send a scathing e-mail to the NFL and told them that I would never talk with -- or never watch or support the NFL in any way ever again.”

The judge was curious about what the prospective juror had said: “And did you feel that way -- I have a question about that. Did you feel that they -- I guess, why did you feel that? Did you feel that way because you thought they should have punished Mr. Kaepernick?”

“I think the act of kneeling during the national anthem is un-American, and I also think that it was un-American for nothing to be done to Mr. Kaepernick,” the prospective juror said. “From the NFL standpoint. And I understand that I -- at least I think my understanding is that Mr. Kaepernick doesn’t work for the NFL anymore. I don’t know. But I just completely stopped watching [the] NFL.”

Another juror had broader concerns about pro football: "[T]he NFL for me is like -- like Rome, like they have the gladiators and then as long as they’re disposable, they don’t care and then let them -- that’s why.”

“And because you feel that way, you can’t be fair to the NFL?” the judge asked.

“I don’t like the NFL and that’s the reason my mind just said that,” the prospective juror replied.

Again, each of those prospective jurors were excused for cause.

Another one first became a subscriber to Sunday Ticket in 2023, when the package moved to YouTube. The plaintiffs argued that the juror was appropriate since he wasn’t part of the class. The NFL argued otherwise, and the judge agreed. (Based simply on the contents of the plaintiffs’ opening statement, which included reference to the fact that the antitrust violations continued beyond 2022, it made a ton of sense for that juror not to be on the panel.)

Another prospective juror pointed out that he and his wife would be going to Canada for a vacation on June 27. The judge considered rolling the dice on keeping the juror, but he opted to play it safe. Which was smart, because the verdict was finally entered on the same day that juror would have taken off to the land of Bob and Doug McKenzie.

For now, we’ll take off from Day One of the trial. Up next (at some point) will be an item on the opening statements. I might do something covering both of them. Or I might do one post for the plaintiffs’ opening and a separate one for the NFL’s opening.

Given my own suspicion that the jurors emerged from the opening statements already believing that the NFL had violated federal antitrust laws, I might address them one at a time.

UPDATE 7:38 a.m. ET, 7/10/24: The juror who became a subscriber in 2023, after the package moved to YouTube, was not excused. Per a source with knowledge of the situation, the official transcript contains an error Although it reflects, at page 71, line 10-11, an acknowledgement that the juror is "[e]xcused for cause,” the juror was actually not excused for cause. And the failure to excuse the juror for cause has become one of the arguments the NFL has made in support of its effort to get a new trial.