By J.R. Howell

On October 30, 2026, the Ninth Circuit directed the district court to reinstate a jury’s finding that the NFL and its member teams violated the Sherman Act in the sale of Sunday Ticket. It also ordered a new trial on damages. The subscribers had offered evidence from which a jury could find that competition would have reduced what they paid to watch out-of-market games. The difficulty with the $4.7 billion award was that the figure the jury apparently used for that reduction could be calculated entirely from prices charged while the challenged agreements were in effect. Neither price told the jury what a household or a sports bar would have paid if the agreements had been different.[1]

The result makes sense once one identifies the commercial decision the subscribers challenged. The clubs had to agree on which teams would play on Sunday. They also agreed that a club could not separately license its game to a distributor seeking to reach that club’s fans outside its home market. The first agreement explains how there came to be a game to watch. The second helps explain why a fan who wanted that game might have to buy the entire league’s out-of-market schedule. For purposes of antitrust law, the NFL had to defend the terms on which it sold the telecasts with reasons that accounted for those particular terms.

How three agreements determined what a fan could buy

The clubs placed their telecasting rights under the NFL’s control. The NFL licensed CBS and Fox to produce and show Sunday games in selected local markets. It then gave DirecTV exclusive rights to distribute those network feeds outside those markets through Sunday Ticket. Between June 2011 and February 2023, the period covered by the suit, residential list prices ranged from $200 to nearly $400 per season on top of the regular satellite subscription. Promotions reduced what some households actually paid. Commercial pricing reflected the size of the establishment and could run to more than $100,000 for a season.[2]

Consider the same Eagles–Vikings game in two places. A viewer in Philadelphia could watch the network feed over the air. An Eagles fan living elsewhere, whose local affiliate carried a different game, could obtain that feed through the DirecTV package. The viewer in Philadelphia received an advertiser-supported broadcast of the kind Congress protected when it authorized the joint sale of rights to sponsored telecasts. The fact that DirecTV delivered the same pictures to the out-of-market viewer did not extend that exemption to the separately priced subscription. Congress defined the exemption by what rights the league sold and how the telecast was sponsored. The identity of the two teams on the screen remained the same.[3]

The subscribers’ theory depended on the agreements working together. An exclusive distributor ordinarily must consider whether someone else can sell its customers a substitute. DirecTV could offer only the all-games package while a club whose fans wanted a different offering had already committed its rights to the league. The horizontal pooling agreement took each club out of the market as an independent seller. The vertical grant of exclusivity then prevented another distributor from obtaining the same rights from the league. A distributor willing to sell a single-team package encountered both restrictions, whichever party it approached first. On the subscribers’ account, the networks had a reason to favor that arrangement as well. A lower-priced out-of-market option would compete for the attention of viewers watching the game chosen by the local affiliate. The alleged premium on Sunday Ticket could therefore serve the interests of the NFL’s network partners even if DirecTV, left to maximize its own profits, would have preferred a lower price and more subscribers.[4]

The need to produce a game does not settle who may sell its telecast

Under Section 1, the first question was whether the challenged arrangement displaced decisions the clubs could otherwise have made independently. In American Needle, Inc. v. National Football League, the Supreme Court considered the NFL clubs’ decision to license their trademarks through one organization. Two clubs must cooperate to play football. They nevertheless have distinct economic interests in licensing their marks. Entrusting those decisions to a common agent could eliminate a source of competition and subject the arrangement to examination under the rule of reason. The same principle makes the ownership and disposition of telecast rights consequential here. The fact that the league can sell a national package efficiently supplies a reason to permit some collective action. It does not, without more, explain why a second distributor must be excluded from selling out-of-market games.[5]

The 2019 appeal established the significance of viewing the agreements together. The district court had dismissed the complaint after examining whether any one agreement independently reduced output. The Ninth Circuit reinstated it because the combined effect could be to eliminate competing telecasts and routes to viewers. The number of games played during a season could remain constant while fewer distributors offered those games and fewer viewers could afford to watch them. The market alleged in the earlier decision was live professional football telecasts in the United States. That market allegation concerns the alternatives viewers would accept. The distinct availability of college football would later become evidence of how telecasts might be distributed, an analytically different use of the comparison.[6]

The NFL had a substantial answer. Collective licensing can create a nationwide product no club can supply on its own, support common production, and allow the league to share revenues. Justice Kavanaugh identified the danger in treating the failure to offer a different product as proof of an antitrust violation. Writing individually when the Supreme Court declined to review the pleading decision, he questioned the premise that the clubs had a duty to license their rights separately and the subscribers’ ability to recover from parties from whom they had not purchased directly. The direct-purchaser issue under Illinois Brick concerned damages attributable to the teams’ horizontal agreement. The earlier Ninth Circuit majority allowed that claim to proceed because the subscribers purchased directly from DirecTV and alleged that it participated in the same output restriction. On that theory, a subscriber could compare the retail price paid with a competitive retail price without tracing a wholesale overcharge through an independent intermediary. The Supreme Court’s denial left the subscribers to prove their case. The claims against DirecTV itself had been sent to arbitration.[7]

At trial, Section 1 required the subscribers to establish an agreement that unreasonably restrained trade and caused injury to their business or property. A jury could credit the benefits of common production and still ask whether wider distribution of the resulting feed would preserve those benefits while allowing more competition in its sale. The distinction had a concrete basis in the record. The NFL had studied making the out-of-market games available on channels included in subscribers’ existing packages. Even after the trial judge excluded the subscribers’ experts, he concluded that other evidence permitted a reasonable jury to find an unreasonable restraint under the rule of reason, including that the asserted benefits were unrelated to the restrictions or could be obtained through a less restrictive alternative.[8]

The Section 2 claim submitted to the jury was conspiracy to monopolize. The instruction required a knowing agreement to obtain or maintain monopoly power in professional football telecasts, specific intent that a party to the agreement obtain or maintain that power, an overt act in furtherance of the conspiracy, and resulting injury to the plaintiffs. A common licensing arrangement could supply evidence of concerted action under Section 1 without necessarily proving that the participants specifically intended to confer monopoly power. The jury found for the subscribers on both claims. The 2026 published opinion concerned the injury and damages issues common to them. Its disposition restores that jury determination without establishing a general prohibition on exclusive sports packages.[9]

The subscribers had to show how competition would have changed the price they paid

A fan who could not afford Sunday Ticket might explain the effect of the restraint on access to games. The plaintiffs who sought money damages were differently situated. They bought the package and received the games. Under Section 4 of the Clayton Act, their claim depended on showing a loss attributable to the aspect of the arrangement that harmed competition. For these purchasers, that loss was the amount they paid above what competition would have permitted the seller to charge. Showing that exclusivity made it harder for a rival to distribute games was one step toward that conclusion. It did not establish the price a household or a bar would have paid in the rival’s presence.[10]

Economist Daniel Rascher approached the missing price by asking what happened when a comparable restriction ended elsewhere. After the Supreme Court invalidated the NCAA’s college football television plan in NCAA v. Board of Regents of the University of Oklahoma, colleges could sell rights individually or through competing conferences. Major games became available across broadcast and basic cable channels. Rascher used games involving top-25 college teams as his benchmark. He reasoned that competing groups of professional teams, selling games with at least comparable audience appeal, could likewise have attracted distributors willing to carry them without charging viewers an additional Sunday Ticket fee. The inference concerns what a fan would pay above an existing television package. Broadcasters, advertisers, and basic subscribers could still fund production and rights fees.[11]

There is an obvious objection. Evidence that college conferences found buyers does not establish which NFL clubs would have sold together, how they would have divided the revenue, or whether every out-of-market NFL game would have moved to a basic channel. The district court considered the missing details sufficiently serious to exclude the opinion after trial under Federal Rule of Evidence 702. The Ninth Circuit located the factual foundation in what happened to comparable games when colleges regained the ability to sell their rights, in the similarities in the products and audiences, and in the league’s own consideration of a no-extra-charge option. Those facts permitted a jury to assess the analogy. They did not oblige a jury to accept Rascher’s prediction. The proponent still had to demonstrate a reliable method, sufficient facts, and a reliable application by a preponderance of the evidence. A comparison bearing no reasonable similarity to the market under examination could still fail that test.[12]

Economist Douglas Zona asked a narrower question. Even if DirecTV continued selling Sunday Ticket, how much would the price fall if the league licensed one more distributor to reach viewers directly? His model predicted a 49.7 percent decline with one additional competitor, corresponding to estimated overcharges of $2.81 billion for residential subscriptions and $670 million for commercial subscriptions. The district court objected that no specific entrant had been established and that the model allowed some consumers to pay more for a competing service. The panel found support for the feasibility of direct distribution and recognized that customers can prefer a different service even when it costs more. Both issues could inform the weight a jury assigned to the estimate.[13]

Zona also tested the subscribers’ theory that the league effectively required DirecTV to maintain a premium to protect the local networks’ audiences. On that assumption, he estimated that DirecTV would have charged 24.6 percent less had it been able to set the price that maximized its own profits. This was the so-called NFL tax. No government collected it. It described the alleged difference between the price that served the league’s network relationships and the price that served the distributor’s interest in selling subscriptions. An objection to the feasibility of a second entrant says little about the price the existing seller would have selected. The district court excluded this model without independently examining it. Nor would adding the two percentages give a jury a measure of damages. Each estimate changes a different feature of the same transaction.[14]

The calculation the jury used answered a different question

After the June 2024 verdict, the district court granted the NFL’s renewed motion for judgment as a matter of law. Having excluded both experts, it concluded that the record could no longer sustain a classwide finding that the subscribers had paid an overcharge. Once the Ninth Circuit reversed the exclusions, the ground for that judgment fell away. The trial judge had also made the conditional new-trial ruling required by Rule 50(c). That ruling asked a separate question about the amount the jury actually awarded. A jury can reject an expert’s estimate, in whole or in part, and still draw a reasonable inference from the evidence. Here the figures provided an unusually good means of testing the inference.[15]

The jury awarded $4,610,331,671.74 to the residential class and $96,928,272.90 to the commercial class. The district court inferred a common figure of $191.26 per subscription. Applying that figure to the residential subscription count reproduced the award to the penny. Applying it to the commercial count came within two cents. The record supplied a source for $191.26. The residential list price in 2018 and 2019 was $294. Subtracting $102.74, a disputed estimate of the average residential price actually paid across the class period, produced precisely $191.26. The calculation used residential figures even for establishments whose fees depended on size and whose average prices were much higher.[16]

A household that paid $102.74 for a package listed at $294 may well have overpaid. To see why the award still fails, suppose for illustration that competition would have produced a price of $80 for that household. Its loss would be $22.74. If the competitive price instead equaled $102.74, its loss would be zero. The distance from the list price remains $191.26 in either circumstance. The NFL therefore had a sound objection to the award even if the jury had been right to credit the subscribers on every question of liability. Because the apparent calculation was independent of the price competition would have produced, no degree of precision in multiplying it by the number of subscriptions could repair it.

What private enforcement can accomplish on remand

The same panel addressed the classes in a separate, unpublished memorandum disposition. It affirmed certification of the residential and commercial damages classes under Rule 23(b)(3) because the expert evidence permitted common proof of injury and damages despite differences among subscribers. It also reversed the judgment for the NFL on the Clayton Act Section 16 claims for prospective relief, for which threatened antitrust injury can suffice. The DirecTV agreement had expired. The district court must consider mootness and whether a single injunction could still provide relief to the members of the injunctive classes under Rule 23(b)(2). The appellate court neither fixed compensation nor prescribed how the NFL must license future games.[17]

In my view, the most consequential feature of the decision is its treatment of the competitor who never obtained a license. If an exclusive license worked as intended, the excluded distributor would have no sales history for a subscriber to introduce at trial. Requiring evidence of a completed competing service as the price of admission for an economist’s opinion would allow the success of the exclusivity to place its price effects beyond examination. A trial court can insist on evidence of feasible distribution, commercially comparable rights sales, and the terms on which customers would have bought, all without insisting that the excluded transaction actually occurred. The new damages jury has a correspondingly exacting task. For each class it must connect the price purchasers paid to a supported estimate of what they could have bought under competitive conditions. That connection is what converts a violation affecting a market into a recovery belonging to the people who paid the bill.

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[1]     Ninth Inning Inc. v. Nat’l Football League, Inc. (In re Nat’l Football League’s “Sunday Ticket” Antitrust Litig.), Nos. 24-5493 & 24-5691, slip op. at 11–12, 30–32 (9th Cir. Oct. 30, 2026) (reversing judgment as a matter of law for the NFL, directing reinstatement of the liability verdict, and affirming the order for a new damages trial).

[2]     Ninth Inning, slip op. at 12–16 (describing the class period, the three agreements, the residential discounts, and the commercial pricing structure).

[3]     15 U.S.C. § 1291 (exempting specified joint sales of sponsored telecasting rights). Shaw v. Dall. Cowboys Football Club, Ltd., 172 F.3d 299, 301–03 (3d Cir. 1999) (distinguishing free sponsored telecasts from their sale through a paid satellite package). Ninth Inning, slip op. at 13–15 (applying the sponsored-telecast distinction to the NFL’s agreements).

[4]     Ninth Inning, slip op. at 13–17, 29 (describing the separate rights transfers, the subscribers’ output theory, and their alternative theory of premium pricing).

[5]     Am. Needle, Inc. v. Nat’l Football League, 560 U.S. 183, 195–204 (2010) (holding that collective licensing by separately owned NFL teams constituted concerted action and recognizing legitimate interests in cooperation).

[6]     In re Nat’l Football League’s Sunday Ticket Antitrust Litig., 933 F.3d 1136, 1148–53, 1156–59 (9th Cir. 2019) (reinstating the complaint after examining the alleged restrictions on the production and distribution of professional football telecasts as a whole).

[7]     Nat’l Football League v. Ninth Inning, Inc., No. 19-1098, slip op. at 1–2 (U.S. Nov. 2, 2020) (Kavanaugh, J., statement respecting denial of certiorari) (questioning the claimed duty to license separately and the subscribers’ damages theory against the league and its clubs). Sunday Ticket, 933 F.3d at 1155–58 (examining direct purchases from an alleged co-conspirator and the scope of the direct-purchaser rule). Ninth Inning, slip op. at 16 (recounting the arbitration ruling involving DirecTV).

[8]     Order at 11–12, In re Nat’l Football League’s “Sunday Ticket” Antitrust Litig., No. 2:15-ml-02668 (C.D. Cal. Aug. 1, 2024), ECF No. 1513 (identifying the Section 1 instruction and finding sufficient evidence on the rule of reason apart from the excluded testimony). Ninth Inning, slip op. at 27–28 (identifying the league’s own distribution study as evidence of feasibility).

[9]     Order at 11–12 & n.7, In re Nat’l Football League’s “Sunday Ticket” Antitrust Litig., No. 2:15-ml-02668 (C.D. Cal. Aug. 1, 2024), ECF No. 1513 (reproducing the elements of conspiracy to monopolize in the jury instruction). Ninth Inning, slip op. at 17–20(describing the verdict and identifying the issues concerning injury and damages on appeal).

[10]   Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488–89 (1977) (requiring a private damages plaintiff’s loss to flow from the feature that makes the conduct anticompetitive). Ninth Inning, slip op. at 19–20 (distinguishing restricted availability in the market from the purchasers’ asserted overcharge).

[11]   NCAA v. Bd. of Regents of the Univ. of Okla., 468 U.S. 85, 99–106, 113–20 (1984) (evaluating a college football television plan under the rule of reason and sustaining the finding of an unlawful restraint). Ninth Inning, slip op. at 22–27 (describing Rascher’s benchmark, the observed change in college distribution, and his estimate of the incremental price to viewers).

[12]   Ninth Inning, slip op. at 21–27 (applying the reliability requirements of Rule 702 and distinguishing a supported comparison from an analytical gap).

[13]   Ninth Inning, slip op. at 27–29 (reviewing the single-entrant estimate, its evidentiary foundation, and the role of differences in consumer preferences).

[14]   Ninth Inning, slip op. at 16, 27–29 (distinguishing the exclusivity model from the alternative premium-pricing model and finding error in the failure to analyze the latter separately).

[15]   Ninth Inning, slip op. at 16–19, 29–32 (explaining the renewed Rule 50 motion, the conditional new-trial ruling, and the different consequences of reversing the expert exclusions).

[16]   Ninth Inning, slip op. at 30–32 (identifying the two awards and sustaining the inference that the jury applied the same residential price difference to both classes). Order at 13–16, In re Nat’l Football League’s “Sunday Ticket” Antitrust Litig., No. 2:15-ml-02668 (C.D. Cal. Aug. 1, 2024), ECF No. 1513 (reconstructing the calculation from subscription counts and explaining the problems with both price inputs).

[17]   Ninth Inning Inc. v. Nat’l Football League, Inc., Nos. 24-5493 & 24-5691, mem. disp. at 3–5 (9th Cir. Oct. 30, 2026) (affirming certification of the damages classes and remanding questions concerning prospective relief and continued certification of the injunctive classes).