I’ve read through 683 pages of the Sunday Ticket trial. Only 1,823 remain.
Hooray?
These 683 pages cover four days of legal proceedings. On the fourth day, only one witness was called. Much to the dismay of Judge Philip Gutierrez. (More on this later.)
The only witness was Larry Jones, a Fox executive. His testimony, which lasted all day, established a fairly obvious fact about the Sunday Ticket program: the television networks that competed with it did not like it.
“I’d rather Sunday Ticket didn’t exist,” Jones said at one point. “From Fox’s perspective, I’d rather Sunday Ticket didn’t exist.”
Jones confirmed Fox’s demand in recent negotiations that the Sunday Ticket be priced at no less than $293.96 per season. He acknowledged that the Sunday Ticket posed an “existential” threat to Fox’s NFL business.
Fox and CBS don’t like the Sunday Ticket because it distracts viewers from their game broadcasts. They prefer exclusivity. The lack of exclusivity led Fox to abandon the Sunday Ticket. Thursday Night Football company, since its games were available on NFL Network and Amazon.
“(W)e actually had to get out of that contract a year early because it was a complete financial disaster for us,” Jones said, “and the real problem with Thursday Night Football “If you’re a broadcaster, we didn’t have exclusivity on those games, so we were airing a game on Thursday night, but the NFL Network was also simulcasting the same game, our broadcast, and then Amazon, I believe, was also airing that game. So we were now one of three places where you could watch the game on Thursday night, and that really impacted our ad revenue.”
CBS and Fox only want one place to watch their games. They don’t want fans to have the option to watch other games, produced by CBS and Fox, on another platform.
This prompted the NFL to ensure that the Sunday Ticket would be priced in a way that would prevent most fans from choosing not to pay for the Sunday Ticket, which would require them to first get a satellite dish and pay for DirecTV.
That’s the crux of the dispute. The NFL’s 32 teams — 32 separate companies — have come together to ensure that the price will be high enough to strike a balance between having enough Sunday Ticket subscribers to justify the money DirecTV pays and enough non-subscribers to justify the money CBS and Fox pay for games available for free in all local markets.
Adams’ key testimony could have been taken in an hour, not a full day, so the fourth day of the trial turned out to be very interesting after Jones finished testifying and the jury was dismissed.
To the extent that the plaintiffs began to alienate Judge Gutierrez, that was apparently the day it happened.
“How did we get one witness today?” Judge Gutierrez asked Amanda Bonn, the attorney who questioned Jones for the plaintiffs. “I mean, you said your estimate was an hour in direct hearing and we were at about two hours and 33 minutes. . . . (A) few times I thought you were taking a deposition.”
“Well, we — the material wasn’t produced by Fox, it was produced by the NFL, so we just did the best we could, and I apologize if it took longer than expected,” Bonn said.
“I’m going to give you that warning,” Judge Gutierrez said. “You’re not going to get more than 25 hours of extra time (to present your case) because you took a deposition today. I don’t care what the reason was — I mean, why wasn’t this witness asked to talk about these documents in his deposition? What’s the answer to that?”
“Your Honor,” Bonn said, “I apologize, but I cannot answer. I was not on the subject at the time. I apologize.”
“I mean, it seems like the trial is going a little bit oddly in some ways because it seems to me that there’s a deposition going on,” Judge Gutierrez said. “Whether you were part of the trial team or not is not really my concern, but it seems to me that you shouldn’t be questioning the witness on a document for the first time at trial. That’s the point I made yesterday. The crude term would be ‘ambush’; that’s the crude term. But in any event, all I’m saying is that it was a deposition and it was pretty repetitive and you shouldn’t expect any extra time.”
Judge Gutierrez’s frustrations boiled over later in the trial, when he criticized the plaintiffs’ attorneys and threatened to close the case. Whether he was simply trying to move the case forward or whether he truly believed the case should be dismissed remains to be seen. Because now he has on his desk an opportunity to pass judgment on the NFL, notwithstanding the verdict.
It would have been easier to do so, frankly, without the $4.7 billion verdict attached to it. In any case, the ball is now in his court.
And if that happens, the plaintiffs’ lawyers will likely shout some terms far cruder than “ambush.”
