While the presiding judge ponders whether to dismiss the Sunday Ticket class action based on your belief that the plaintiffs’ lawyers are screwing the dog (it’s an industry term), many facts point to the notion that the NFL deliberately rigged the price of the Sunday Ticket package out of the market to protect CBS and the Fox packages on the market.
Many don’t.
Former CBS Sports President Sean McManus provided some facts for the “don’t do” category on Tuesday in two significant ways. Via Craig Clough of Law360.com, McManus categorically denied the fundamental questions of whether he knew the NFL controlled the price charged for Sunday Ticket or whether CBS had a side deal with the NFL to ensure the price would be kept high enough to drive many fans to watch games on their local CBS and Fox affiliates.
As is the case in many civil actions that require one side to cross the This is our story and we are sticking to it proclamations from a defense perspective (I addressed this dynamic during Tuesday’s #PFTPM, about the Jim Trotter lawsuit), witnesses scream “no, no, no,” while other evidence potentially whispers “yes, yes, yes.”
For example, in 2011, McManus sent an email to NFL executives explaining that CBS “needs to[s] clarification” regarding the price of the Sunday Ticket, as the “concept” of the package was that it would be “sold at a premium price” and “limit distribution”.
In a pre-Orwellian world where inconvenient facts are not routinely ignored, this would be a smoking gun, a “gotcha” document that would undermine predictable denials about the more obvious yes or no questions about whether price fixing was in effect.
McManus also agreed that he would have preferred Sunday Ticket not to exist because it impacted CBS’ ratings for broadcast and free TV. (McManus testified, through Joe Flint of Wall Street JournalWhat CBS used to be compensated for the use of their feeds on Sunday Ticket, but this is no longer the case. That’s another reason to dislike the Sunday Ticket product.)
The official response to McManus’ email is that the league never specifically promised that the Sunday Ticket will be priced at a certain price in order to ensure limited distribution. This points to the possibility of a side deal, or at the very least a gentlemen’s understanding, that the league would in fact keep the price high enough to suppress Sunday Ticket subscribers, thus increasing the value of the CBS and Fox packages.
This makes it even more important for everyone on the NFL-CBS-Fox-DirecTV side to follow the official story. It is not perjury in the classical sense, if in fact there was a parallel agreement. It’s an institutional lie, embodied in the not-uncommon practice of people having conversations that never happened. Once the parties agree that a conversation never took place, they often feel inclined to put that oath rather than tell the truth, the whole truth, and nothing but the truth – if at all.
There’s also a chance that there was no side deal because everyone was smart enough to know what needed to be done without it. Why else wouldn’t the NFL have at least experimented at some point in the last 30 years with giving fans more options and greater flexibility by (for example) accepting ESPN offer to make the complete package available for $70 per year and create an option one team at a time?
The judge reprimanded the plaintiffs’ lawyers for overcomplicating the case. The case is complicated in part by the fact that the NFL has been steadily circulating, offering final positions that defy common sense and that force plaintiffs’ lawyers to constantly pursue the truth by reminding witnesses of things said in writing. and getting jurors to focus on the central issues.
In our opinion, this is what really matters:
Why has the Sunday Ticket price always been so high?
Why has the single-team option never been available even though the NFL markets Sunday Ticket specifically to displaced fans who can’t see their favorite teams’ games?
Why wouldn’t the NFL just take the biggest check possible for Sunday Ticket and let DirecTV (now YouTubeTV) charge whatever they want for it?
Nothing happens spontaneously or accidentally for the NFL. The truth is, and has been, hidden in plain sight for 30 years. The NFL wants to ensure that as many people say, “Too rich for my blood” and only watch the games available on their local affiliates on Sunday afternoons.
In her opening statement, NFL attorney Beth Wilkinson said: “The case is about choice.” She then said, “We want as many people as possible to watch the free broadcasts.”
Both cannot be true. If it’s a matter of choice, the Sunday Ticket would be cheap. If it were a question of maximizing the audience for free broadcasts, Sunday Ticket would be expensive.
Because it’s expensive, common sense dictates that boosting CBS and Fox’s ratings is the driving force. Which points directly to an express or implied agreement with CBS, Fox and DirecTV to manipulate pricing in order to improve ratings for free broadcasts.
Maybe that’s why the judge is getting bored. This is really a simple case. But the biggest challenge for lawyers who are fighting a no-turns-out defense lawyer who makes $1,500 an hour or more is not taking the lawyer’s cheese.
Currently it appears that the lawyers representing the class attacking the Sunday Ticket are chewing on a piece of cheese the size of a car battery.
