This is Bloomberg Law with June Brusso from Bloomberg Radio. It's official. A federal judge has ruled that Google is a monopolist, a stunning defeat for the search giant and a huge win for the government in its biggest antitrust showdown against a tech giant in a quarter century. And make no mistake, the Biden administration and Attorney General Merrick Garland have made taking on the tech giants a priority.
Monopolies threaten the free and fair markets upon which our economy is based. They stifle innovation, They hurt producers and workers, and they increase costs for consumers.
DC judge on mit Meta found that Google broke the law by exploiting its dominance to squash competition and stifle innovation. The sanctions could be anything from a breakup of the company to unwinding its excluded deals, but that won't be decided until after yet another trial. Of course, Google says
it will appeal. Joining me is anti trust Expert William Kavasik, a professor at GW Law School and the former chair of the Federal Trade Commission, will this decision stand as a landmark, along with say the at and t Standard Oil and Microsoft cases.
It's the beginning of a process that could become a landmark, but there's still many rivers to cross before this specific contest is over. We have a proceeding coming up this fall on the remedy to be issued. Judge Meta will be writing an opinion on what that remedy should be, probably issues that by the end of the year. But then we go through the inevitable process of appeals where Google and maybe the government point is, decide to appeal.
Different issues raise different points about Judge Meta's decisions on liability and remedy. So this promising first step for the government is only the first step in the process that will lead through a fairly difficult gauntlet of appeals. And I think ultimately this is a case that gets to the US Supreme Court. The Supreme Court hasn't informed me about whether that's the case, So this is speculation that
I can't defend in any scientific way. But it's a case of such significance both were with respect to doctrine and commerce, that it's a natural candidate to be reviewed by the Supreme Court, and that process could take us well into twenty twenty six. So your crucial question about what kind of landmarks this is, I will answer with the typical academics evasion. It depends on the final resolution of the matter through the appeals, an answer that won't come to us probably for two more years.
Judge Meta found the Google is a monopolist and has acted as one to maintain its monopoly. Can you explain broadly how he came to that conclusion?
On the crucial question of monopoly, the government has to show that the company exercises tremendous power within an area of commerce and in any trust language, that's usually called
a relevant market. It's a technical term that refers to products that people regard as good substitutes for each other, and the government, to Judge Meta's satisfaction, proved that in a market consisting of general search services, that Google indeed is a monopolist, It does not have effective competitors, that it accounts for an overwhelming share of activity of searches that are carried out, and as a consequence, its power is not only significant today, but the court concluded it's
going to be durable. But any trust law, it's not enough to simply be big. There are lots of expressions by courts over time. That's saying achieving a position of preeminence is the market of distinction. It's not a badge of shame. So you have to do something more. You have to show that that power was achieved to means that are improper, that you achieved it through improper means,
you protected it through improper means. A colleague once told me that it means in US law that you need not only be big, you have to be bad as well. And on that point, Judge Meta found that Google's behavior in a number of instances was improper. That it excluded rivals from having access to business opportunities that they needed to compete, and it did it through a variety of different forms of exclusivity agreements that gave it the sole access to a crucial asset in dealing with third parties
such as Apple and the Menta. Competitors didn't have the opportunity to use that valuable asset to compete effectively with Google. So for those two core elements of the monopolization case,
Judge Meta validated the heart of the government's seriod. The government did not get everything it wanted here, but it got validation of its core interpretation of this crucial principle of monopolization law that the firm in question must indeed have tremendous power within a specific part of the marketplace, and must have achieved or protected that position through improper means. On those larger themes, Judge Meta concluded that the government
had proven its case. Google has some things in this opinion that I'm sure likes. Disappointed with the larger outcome, I imagine.
Google plans to appeal no surprise, and in a statement said that this goes to your point that Meta's opinion recognize Google as the Internet's best search engine quote, but concludes that we shouldn't be allowed to make it easily available. Do you think Google has a lot of ammunition for appeal?
It enjoys a couple of potential advantages on appeal, and a couple of that aren't merely potential, they're real. The law, the jurisprudence of US antitrust law since the late seventies has tended to error on the side of dominant terms in evaluating their behavior. It has not told them they can do anything they want, but it's imposed fairly severe
burdens on government and private planets. Trying to attack the behavior of dominant firms, so that the arena in which the appeals will take place is one in which the doctrine is generally sympathetic to the kinds of arguments that Google has offered about its own work and developed or
in the trial. Another advantage is that they'll point to the evidence in the record that suggests that people turn back to Google when they have a choice, When the starting point of their experience is another product, they switch to the default, they abandon that product and turn back to Google. So Google's going to stay. There's evidence in the case that says people come back to us because we're offering them the better experience. Those aren't so many arguments.
Those are arguments that enjoy some philosophical and doctrinal support and what courts have done in the past. So Google would be standing before the Court of Appeals saying that the practices that the government complains about cannot appropriately be deemed to be improper, and the remedial hearings will focus a lot on what Google should be allowed to do in the future, how much should it be able to bid for, say, the placement on the iPhone. When it
comes to the famous rect angle on the iPhone. Should it be more cautious and how it bids, should it bid less aggressively? What exactly should its position be? Those are hard issues to be resolved in the remedial proceeding. And then jed Ji Metta in a couple of places expressed a concern that has appeared in earlier Supreme Court decisions about the difficulty judges face in trying to tell companies whom they must deal with and on what terms
they must deal with them. It express concern about mandating a general obligation on the part of dominant firms to deal with other companies, anxiety about the role that courts would undertake, and becoming a referee that examines and evaluates each of these interactions between the dominant firm and the third party. Court said, we're not wealth suited to do that. The intervention that we have to undertake has to be much cleaner and not involve such long term, ongoing entanglements.
We can't do that. You know, during the remedy proceedings and probably in the appellate process, Google will be saying, well, in light of that express concern, how do you write an order or an injunction that tells us what we can and can't do without in some crucial ways just disabling us. How do you do that? So those would be very live and important issues for debate during the It.
Sounds as if, and I could be wrong here, you think that Google has the better arguments on appeal.
I don't know in substance that they have the better arguments on appeal. I just think a caution to keep
in mind. In some ways, amid the euphoria that many felt about the outcome, those who wanted the judge to find liability, the caution is that there's a lot of hard work to be done in defining what it is Google can't do in the future, and Google's operating in the judicial environment, a doct final environment built up, especially since the late nineteen seventies that tends to be sympathetic to some of the kinds of arguments that Google has
been making. So it's really a caution that, notwithstanding the exceptional result that the government achieved, that there are many rivers to cross before the final outcome validates the approach that they've been taken, and Google is not yet defeated in its efforts to persuade the appellate judges that it didn't behave improperly.
So you mentioned the remedy and judgment US scheduled to hearing for next month to decide the timing for the separate trial. And the remedies and potential remedies mentioned have been everything from ordering a breakup of Google to unwinding exclusive search deals everything in between. What do you see as the most likely potential remedy or remedies.
A starting point is like to be controls on conduct, that is, to define the types of agreements that Google cannot enter into in the future, to indicate that certain types of existing agreements or practices are no longer permissible with the caveat that writing, the injunction that prohibits those practices will require a lot of further attention and thought in light of some of the concerns that we've just
been talking about. In some sense, the boulder, the more visually striking solution is to force the company to divest assets. That's the breakup solution. Theoretically, it's in the solution set. It's a well established anti trust remedy from anopilization going back to the earliest phase of enforcement of the Sherman
Act in the late nineteen in early twentieth centuries. It's also been a remedy the courts have applied with some reluctant, some anxiety on the part of individual federal judges about whether they are performing surgery of a sort that's going to make the commercial system better or worse off. So I would say there's an implicit additional burden that government plaintiffs carry when they're trying to argue for divestiture remedies in monopolization cases. It's not impossible to bear that burden.
And the famous DOJ prosecution of Microsoft, DOJ succeeded in persuading the trial judge to mandate to the separation of Microsoft into two parts, an operating systems company and an applications company. To the Court of Appeals rejected that remedy for a variety of reasons, but one of them was that Judge Jackson, the trial judge in the case, held an adequate set of hearings on the remedy. He basically had a two hour conversation with the parties in the
courtroom and that was it. So conceptually, legally, theoretically, it's part of the solution set in practice. It challenging remedy in some instances. For the government to obtain I'd say to get the remedy, the government has to do two things. Want us to say that the misconduct created serious competitive clause in the relevant line of commerce, seriously retarded competition, and that the structural solution is vital to restoring competition
and making it effective in the future. That impossible, but very challenging, which tends to mean that a more likely outcome perhaps is some set of controls on conduct rather than mandated divestitures.
And at this point we don't even know what the government will be asking for as remedies. So, as you say, a long way to go. Thanks so much for sharing your insights with us. That's Professor William Kavasik of GW Law School. I'm June Grosso and you're listening to Bloomberg.
Look for me, youngs in on the West Side Way. What we like to do?
That way from Beyonce and jay Z fum Cedy crazy to do a lip up the Pitbull and Cardi b.
Alex Dallas, Alec Dumms, Alex Sunn, Alex Shun, Alec Million, Dalis.
Your favorite NBA team may have been using copyrighted music from your favorite artists in promotional videos on social media without getting permission. Nearly half of the teams in the league are being sued for using copyrighted songs without consent in videos on TikTok, Facebook, Instagram, YouTube, and x meaning they didn't pay a fee to get the required synchronization license.
The New York Knicks, the Philadelphia seventy six ers, and the Atlanta Hawks are among the fourteen teams being sued by music companies for knowingly and wilfully infringing on their intellectual property rights. Joining me is intellectual property litigator Terrence Ross, a partner at Katinyuchen Terry, explain the issue here.
Here's the problem that they face. Each of these social media sites has a license with the major music publishing houses and recording studios, and they have available to their users hundreds of thousands pieces of music. The problem is that that license is limited to non commercial use, and this is where companies make mistakes all the time on social media platforms. And this is truly these lawsuits are truly a cautionary tale for every business that should wake
up and pay attention here. When a business goes on a social media platform, it's simply assumed that you're doing that for commercial purposes your business. What other purpose could there be other than for commercial purpose? And therefore that license that individual users teenagers for example, can take advantage of cannot be taken advantage of by a business because it expressly excludes commercial use on these websites, whether it
be TikTok or Instagram. And that's the problem here is that these NBA teams did not seem to be cognizant of that limitation on the general available license and simply assumed that they could do this, and nobody really thought twice and.
I assumed isn't a defense.
I assume it's not a defense like that famous Steve Martin vitt. Sorry here, Hunter, I didn't know that armed robbery was against the law. That doesn't work in a court of law. Fair use is a legitimate defense, But in light of the fact that they were trying to take advantage of a license to the site for music and simply didn't comply the right way, it makes it really hard to then succeed with the fair use defense, in my opinion.
And when drinkmaker Bang Energy was sued for using hundreds of copyrighted songs in TikTok videos. It said it believed that the TikTok licenses gave it permission, but the judge said it really didn't matter what Bang thought. Going back to the Steve Martin defense, it seems like a lot of similar suits are being.
Filed, so there's a large number of these that have been percolating over the last year. The Beastie Boys sued Chile's the restaurant chain for using their song sabotage in social media clips. Sony sued Marriott just this last May for using some of its songs. Sony has a very large music catalog, and Mary apparently used some of those in its social media platform campaigns. So you're seeing this happen all the time. It's part of a broader trend
within the music business. The music industry and performers in general believe that they're being undercompensated, and so they have become very aggressive on the litigation front. There have been a number of lawsuits against streaming platforms, mostly recently Verizon ut suit alleging that they are willfully allowing this to happen that people share songs notwithstanding getting copious numbers of
copyright down notices from the music companies. And so this is just part of a larger trend of pushing back by music companies, recording studios, performers to try to capture more monetary compensation for their work.
To me, this seems like an open and shutcase.
Look, if I got hired to represent one of the teams, I'd be calling and trying to answer real quick what they want. You know, litigating a lawsuit like this can only be embarrassing at best, and at worst can really be a black eye for a team, particularly since the music ledged to be used here is by some of the most popular performers on the contemporary music scene. The allegations are that the songs used came from hit Bull, Doja, Cat, Dualipa, Miley Cyrus, jay Z, Cardi B, just to name a few.
I mean, these are really popular performers and their fans tend to resent it when their music is being used improperly like this, and so this can only be a black eye for these NBA teams. There's that old saying, you know, the first rule of holes h O. L. Ees is when you're in a hole, stop thinking. And so my view is, you know, I didn't vote meacopa meticopa man maxima culpa, and do my five hail Mary's and pennants and and move on. You know, just what is it that you want to make this go away?
And do it and we'll promise never to do it again, and then I put in place some sort of training for the people who are actually doing my social media platform so that this never happens again. Now, part of the problem here is that sometimes corporations farm that workout to third parties. I mean, there are lots of companies who for a price, will do your social media postings for you. That's what most celebrities have. You know, you don't see people like Kevin Durant sitting down and doing
his own posting on TikTok. What you see is, you know, wealthy people in big corporation pushing that out, outsourcing it to third party you will do it for them. And that's a different problem to the except the NBA teams are doing that, not doing it in house. They've got to crack down on that and make sure that their third party vendors who are providing these services are doing it in a lawful way.
Maybe the Knicks thought that since jay Z is such a fan and since courtside all the time, he wouldn't mind if they used his song, that could well be the case.
I don't know, so I suspect me honestly to I mean, we can laugh about this, and it is comical in some ways, but I suspect that none of these teams realized what was going on. None of these teams would have willfully set out to break the copyright laws because they don't have their own copyrights and don't want them infringe.
This is a mistake that the team's made, and it's what we would call in the business innocent infringement, and they should just do their penance, figure out what it needs to make this go away, and make sure it doesn't happen.
Yet, So none of these fourteen teams, sophisticated corporate players realized that they had to get to use an artist copyrighted music and a promotional video. Don't they have teams of in house lawyers advising them on things like this.
Fundamentally, the NBA is an entertainment business, and as with any entertainment business, they have to have copyrights on their broadcast, trademarks, on their logos, on the team names, et cetera. So they are aware of intellectual property laws. There's no question about that. The question that he poses, how did this happen? Each of these NBA teams have in house legal staff. The league has a fairly large in house legal staff
that can be accessed by the teams as necessary. I mean, most of the trademark registration process goes through the League, not through the individual teams. And so the question is a very good one. He asked you how could this happen?
And the simple answer is that, as with many corporations, the mere fact that you're big and that you have knowledge of the intellectual proper it doesn't mean that you have a large enough legal staff or legal staff that is experienced in intellectual property to be able to deal with every problem that comes up. The biggest problem that NBA teams face are labor and employment issue, so they obviously have people who are very familiar with employment issues
and with the collective bargaining agreement. They also have basic contract problems, contracts with the venue that they play in, contracts with sponsors, and so they obviously have people on their legal staff who are very familiar contracts. That doesn't mean that they're going to have a copyright specialist because that doesn't come up as often, and they probably when they have a problem refer to outside council in that field.
And so the simple answer is, yeah, their big corporation, but when it comes to social media platforms, they're often no more cognizant of what the rules are than any late person like your kid or my kid.
So the plaintiffs are seeking damages of up to one hundred and fifty thousand per song infringed, So it's not about how many times the videos were viewed.
It's an interesting aspect of the Copyright Act. You can seek actual damages whatever the harm to you was. And perhaps one of these videos was viewed a million times, and you can make some sort of argument that that would be worth two cents for each viewing to you. So that's one way you can go the actual loss. That's often really hard to prove in copyright cases like this, and so the Copyright Act includes as a core part
of the damage's provision the remedy of statutory damages. Congress knowing that it was hard to prove up actual loss, and copyright cases allowed for a plaintiff, a copyright owner to come in to court and say, look, I had these three works, they were each infringed, and for each work you can get up to up to one hundred
and fifty thousand dollars in what they're called statutory damages. Now, that's not an automatic one hundred and fifty thousand and one hundred and fifty thousand knowledge is for willful copyright infringement. For innocent infringement, it's much less. For ordinary infringements the cap of thirty thousand, and for wolf one infringements the cap of the one hundred and fifty thousand. So it's not simply well, you infringe three songs times one hundred
and fifty thousand. Doesn't work that way. There has to be a determination made as to the mental state of the defendant when it went about this infringement. And as I said, I don't think any of these teams set out to willfully infringe, as that term is used in the copyright laws. They made a mistake, and so I think the damages, if this were to go to Troup, should be set at much lower than one hundred and fifty thousand dollars per work. But there's some teams who
used a lot of different songs. The Knicks had twenty three different songs allegedly used. The Orlando Magic had thirty seven different songs allegedly used by them. So I mean there's a lot of potential damages on the line.
Yeah, and Terry, let's say the Knicks had tried to get a license, how much would it have cost?
What should have happened here is the Knicks would have had to go to the license or of the music and got what's known as a thing nchronization license. A synchronization license is required whenever you want to use a song that is copyrighted in a video format. So keep in mind we're dealing here with social media platforms that use, for example, a video of a Knicks player dunking on an opposing player, and you know there'll be some written commentary like oh another great dunk, And then to make
it interesting, the video clip will have music playing the background. Well, that requires a sync license in order to show the music in a video format. And that's fundamentally what they did wrong here, not going getting that. How much would it cost it's an individualized negotiation. It's not a set price.
You know.
It's different than internet streaming. These satellite radio stations, for example, there is a set price per song. I don't remember what it is, like nine point six cents or something like that, that's revised every couple of years. That's not true with a sink license. It's individually negotiated and they'd
have to go and see what they could get. Usually, the license and companies are very eager to do that, and you certainly would get it for a lot less than one hundred and fifty thousand dollars per song.
So it seems like these suits will be settled, although I don't know why Chili's hasn't settled with the Beastie Boys.
I don't understand why an eighties or religated. Usually the answer is that the plaintiff is asking for an exorbitant amount, not being reasonable in the settlement negotiation, and so you have to wait and push it down the road a little bit until it gets to what happens in most courts nowadays, a court ordered mediation, usually with a magistrate judge who sort of beats up on the plaintiff to settle, but you would think that this would settle relatively quickly.
I mean one team here, the Indiana Pacers, who have been accused of only infringing one or two songs, and you would think that would get settled real quick. But some of these others, where the thirty seven songs, there's a lot of infringement and a lot of potential damages, so that might be harder to settle in the short term. But I doubt it any of these we'll go to trial.
Thanks so much, Terry, and I have to say, I think the rule of holes is something that every lawyer should follow. That's Terrence Ross of Catain. Euchen Rosenman.
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Anti Truss litigation over the NFL's Sunday Ticket has been going on for more than a decade, but now in just a five week span, the NFL's biggest financial threat in years has been erased in court almost like magic, well legal magic. At the end of June, a jury had sided with football fans and awarded four point seven billion dollars in damages to subscribers, finding that the NFL had violated anti trust laws in distributing out of market
Sunday afternoon games on a premium subscription service. Because damages can be tripled under federal antitrust laws, the NFL was facing a more than fourteen billion dollar reward, but then last week, a California federal judge tossed out the verdict after striking the testimony of two expert witnesses and concluding
that the jury had improperly calculated the damages. Joining me is Bloomberg Intelligence senior litigation analyst Jenniferree, the jury found anti competitive behavior, did the judge find any anti competitive behavior?
So the judge didn't necessarily find anti competitive behavior. What he said was that it wasn't unreasonable based on the evidence presented at trial for the jury to reach that conclusion. So essentially he supported the jury reaching the conclusion that the agreements between the NFL teams and the NFL, and possibly also with DirecTV were anti competitive restraints.
The NFL had argued that the jury had made up methodology to calculate the damages, and that was one of the points that the judge really focused on. Tell us why he went off on that.
I have to tell you it was really kind of a strange way for a jury to calculate damages. So what happens in trial is there are experts, and the experts are there to assist the jury to explain to them how damages can be calculated, what they think the world would have looked like but for these restraints that were deemed to be anti competitive, and what the prices
would have been. So what a jury is meant to do is say, okay, in that butt for world where we didn't have these restraints, what would people have paid? But what did they actually pay and what's the difference. And the judge actually instructed them that way. You have to say how much were people overcharged because of this bad behavior? What they need to get back is what they overpaid essentially, But instead the jury just kind of projected all of that and they took the list price.
This is Sunday ticket is what we're talking about, right. It's something you can buy from the NFL to get out of market games. And that's what the issue is here, what did people pay for Sunday ticket. They took the list price for Sunday ticket, and then they took the testimony about what the actual average price paid for Sunday
ticket was. Because you know, people get coupons, they get discounts, they get specials, whatever, so there was, you know, a little more than I think one hundred dollars difference between the list price and the average price actually paid. They took that difference. So in other words, they took what was the discount and then they multiplied that by the number of subscribers. So that really doesn't bear any relation to what the experts testified as to the overcharges. So
the judge said, look, you can do the math. You can see how they calculated this. It's to the penny and it doesn't make sense.
So that's part of it. The jury calculation was wrong, according to the judge. He also struck two economic experts who had testified for the subscribers.
Right, you know, I just talked about the butt four world.
So one of those experts described what the butt four world might have looked like if they hadn't had the restraints, and the other one sort of talked about that and what people would have paid, how things would have been, and what would have been paid to be a subscriber to these out of market telecasts of NFL games, And an expert's conclusions and testimony really have to be based on some sort of a methodology and economic methodology that
makes sense. And here he basically said it really wasn't. It wasn't reliable. Neither expert were reliable one because really their testimony wasn't based on a methodology that made sense. In one case, the first expert basically said, Hey, if you didn't have these restraints, it would be just like
college football. We have a bunch of college football games all over the place on some cable channels, on some over the air channels like ABC on cable channels, and you see, you know, loads of games every weekend, and this would be just like that. But he didn't really explain how it would. NFL has differences. It's different from college football. It isn't the same. And CBS and Box have some contracts with the NFL which aren't necessarily illegal,
and those probably would have stayed in place. But he didn't do is say how this would have happened and when asked, how would this have all worked out? He said, these are sophisticated entities. They would have made it work. That isn't good enough. You know, it needs to be based on some economic analysis that backs up, explaining exactly how everything would have panned out, what would have been shown, how it would have been shown, how much it would
have been had the restraints not been in place. And so the judge said, this is really just speculation that things would have been like college football, without explaining why or how it would be like college football.
It's surprising to me that the plaintiffs, after all these years of litigation, didn't get an expert who could do that. It doesn't sound like it's something that's so impossible to figure out.
I think they thought it would be sufficient because there was some effort by the defendants earlier in the litigation it's called a dobear motion to try to exclude the experts, and they weren't able to do that. The judge said, no, I'm going to go ahead and let them testify. And I think the plaintiffs thought that this testimony might be good enough. College football did face years ago a case that was similar to this one, and as a result of that litigation, we got what we got out of
the NCAA. We got a lot of college games on a lot of different cable stations and over the air stations, and I think they thought it would be good enough to basically say, look, it's very similar, and it would be similar. But again, from the perspective of what an expert supposed to provide, the judge just deemed that to be too speculative.
Was this a shocking decision to toss out the verdict?
I think not, because first, all the way through trial, the judge seemed a really skeptical of plaintiff's evidence. He made comments like, I don't really think the evidence that you're presenting here supports your theory or supports your case. I don't really think you're making your case. So he was skeptical the whole way. So that's one thing. And the second thing is when you did look at the
damages that the jury awarded, they did look odd. They weren't the damages that the experts predicted would be the appropriate damages, and you saw that it was kind of clear the way they calculated them in a way that didn't make sense, right, So I think that wasn't surprise. And then June also, this has a long history, right, This litigation has been going for ten years, and it already went before the Supreme Court at one point, I should say that the NFL tried to get Supreme Court review.
The Supreme Court didn't pick up the case because it was just on emotion to dismiss, and that's kind of early on in the matter and sort of procedural. But in saying we won't review the case, Justice Kavanaugh released a statement and in the statement, he basically said he doesn't think that the plaintiff's case is good here that he agrees with the NFL's position, and they didn't take the case because it's just on emotion to dismiss.
It's early on.
But by the way, NFL, if you lose, practically invited them to come back to the Supreme Court.
That's some invitation to get. What surprised me here is the jury didn't follow the judge's instructions and the judge said they calculated the damages incorrectly. So then you order a new trial and you give another jury a chance, especially after ten years of litigation.
So I think a new trial could be where we end up here. But the reason he did that is because there were sort of three issues.
Right.
He didn't just say that the jury's damages made no sense. That was one thing, But he also discounted and discluded the evidence of two experts. And because he did that, he granted judgment notwithstanding the verdict. Because without those two experts testimony, there was no evidence presented at all to establish that there was injury or what the damages would have been for that injury. And because of that, it was judgment notwithstanding the verdict. Now here's the thing. What
happens now. I would think that the plaintiffs will probably appeal, based on what we talked about right at the beginning of this segment, that the judge didn't find it unreasonable for the jury to decide that there'd been anti competitive conduct. Right, So the judge agreed with that. So on that basis, consumers and commercial entities, they're do something right, There was
anti competitive conduct according to this jury. I would think the plaintiffs would appeal, and I would believe that the upshot of that appeal, if they're successful, would be to send it back for a new trial on damages.
This has been going on so long that in twenty seventeen a judge dismissed the lawsuit right at that point, too right, And the Ninth Circuit two years later reversed and revived the litigation.
That was really early on. So it was first dismissed, it went to the Ninth Circuit. The Ninth Circuit resurrected it, and that's when the NFL tried to get before the Supreme Court. It was on that Ninth Circuit's decision to send it back to the trial court on remand well it was a reversal, so you know, no motion to dismiss, keep litigating, and that's when the Supreme Court refused to take the case. And then we went through the litigation and the trial.
And does the Sports Broadcasting Act from the nineteen sixties play in here.
What it does is it exempts professional football from antitrust laws, the conspiracy laws for the purpose of organizing a league, right and for the purpose of having all these teams that must come together to present professional football, the game's the Super Bowl, et cetera. And what it did at the time is it exempted it for the purpose of pooling their licensing for free TV. But there was nothing but free TV. Then there was no cable. It was just ad supported television is what we got, and we
didn't pay for it. Things are different today. So one of the arguments here by the NFL was that, well, we're exempt from the antitrust laws because of the Sports Broadcasting Act.
We can do this.
We can go ahead and license pull the rights to the telecasts of all the games and then sell them as a package to Direct TV and let Direct TV charge subscribers whatever they want to, right, because this was the issue. So the question is does the Sports Broadcasting Act apply or not? And I think that if the NFL was planning ahead and looking at their conduct, their position would have been, well, we're exempt, so we can do this.
And another surprise to me in this case is that we haven't heard from the plaintiffs saying we're going to appeal this. Usually that's the refrain right after a losing verdict, especially because they've been successful at the Ninth Circuit before.
You know.
I think it's such an interesting situation because I would think the plaintiffs would want to appeal just because they did get the jury verdict that there was anti competitive conduct. But on the other hand, this litigation has been going for ten years now. If they appeal, we're tacking on years and years and years because the Ninth Circuit is pretty backed up. They've got a lot of cases. They're taking a long time to decide on these appellate matters
you're looking at. It could be another two years before they get that decision. It's been ten years. And if the decision is to send it back to a new trial, I mean, I think at this point they may just want to get paid. So what I think this could lead to is some sort of a settlement here.
Not much of a settlement though, I don't think so.
I mean, you know, that's the thing their issues here. On both sides. The NFL probably feels like they have a strong case, But on the other hand, everybody's probably tired of this litigation and it may be worth their while just to pay these plaintiffs and make it all go away, because the litigation itself is costing them a lot of money and as I said, could drag on for years. So we'll have to see what happens. I suspect at least there will be an appeal and it might get to the Ninth Circuit.
So we'll see whether the peel comes first or the settlement. Thanks so much, Jen. That's Jennifer Reed, Bloomberg Intelligence Senior litigation Analyst. And that's it for this edition of the Bloomberg Law Podcast. Remember you can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast, slash Law. I'm June Grosso and this is Bloomberg