Plaintiffs brought an antitrust lawsuit against Defendants, asserting that Defendants entered a set of agreements with each other and their broadcast partners that suppressed the output of telecasts of out-of-market professional football games, resulting in higher prices for Sunday Ticket.
Since Judge Philip Gutierrez decided the opinions provided by the Plaintiffs’ expert witnesses regarding financial damages were not reliable, the Sunday Ticket Plaintiffs won’t be getting a mulligan on damages, at least not for now.
Daniel Rascher, one of the expert witnesses whose testimony was allowed until it wasn’t, crafted a model based on the NFL ditching Sunday Ticket and selling the out-of-market games to various networks that would broadcast the feeds from CBS and Fox.
Economics Expert Witness
Daniel Rascher has taught sports economics and finance, business research methods, and master’s project. As President of SportsEconomics, his clients have included organizations involved in the NBA, NFL, MLB, NHL, NCAA, NASCAR, MLS, PGA, WTA, media, sporting goods and apparel, professional boxing, mixed martial arts, minor league baseball, NHRA, AHL, Formula 1. He has authored articles for academic and professional journals, book chapters, and a text book in the sport management and economics fields, has been interviewed hundreds of times by the media for his opinion on various aspects of the business of sports, and has given over fifty presentations at professional and academic conferences.
Discussion by the Court
Rascher used college football as his model of what would happen in the absence of the competitive restraints at issue in the case (“college football but-for world”). He opined that if the NFL Teams stopped “colluding and selling” their out-of-market games through the NFL, but sold them either independently or in divisions, the result would be like college football as the games would “become available, just like on Saturday, on over-the-air channels and . . . basic sport cable channels” and customers would not “pay anything extra above what they were already paying for their TV package.”
Judge Gutierrez held that Rascher’s failure to produce a coherent model is particularly problematic as there are significant differences between college football and the outcome in his college football but-for world. Unlike Rascher’s college but-for world, not all college football games are available on over-the-air networks and on the major cable stations as some college football games—including games of top 25 ranked teams—were available only by purchasing premium offerings like the Pac 12, SEC, or ACC network packages or viewable only on local regional networks.
The judge upheld the finding that Sunday Ticket, as constructed, violated federal antitrust laws.
From June 5, 2024 to June 26, 2024, a trial took place, where the jury found that Defendants’ conduct violated § 1 and § 2 of the Sherman Act. The jury awarded the Commercial Class $96,928,272.90 and the Residential Class $4,610,331,671.74 in damages.
Judge Gutierrez specifically found that there was enough evidence to justify the verdict as to the issue of liability. He threw the verdict out because he determined that the expert witnesses he allowed to testify weren’t reliable.
Held
The Court excluded Daniel Rascher’s testimony under FRE 702 because it relied on a college football model that was developed based on speculation and ipse dixit opinion.
Key Takeaway:
After review of Rascher’s testimony, the Court finds that his college but-for world was not based on a reliable methodology but rather ipse dixit opinion untethered to an economic analysis of what would have likely occurred in the but-for world and must be excluded. Rascher had to present a but-for world grounded in economic rationality.
Case Details:
| Case Caption: | In re: NFL “Sunday Ticket” Antitrust Litigation |
| Docket Number: | 2:15ml2668 |
| Court: | United States District Court for the Central District of California |
| Order Date: | August 01, 2024 |
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