Goodell, Kraft, Jones Top NFL Sunday Ticket Witness List for Trial – Sportico.com

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NFL commissioner Roger Goodell, New England Patriots owner Robert Kraft and Dallas Cowboys owner Jerry Jones are among potential witnesses in a trial that could reshape sports broadcasting. 

Barring a settlement or postponement, the NFL—and several high-profile witnesses connected to the league—could appear in a Los Angeles courthouse beginning Feb. 22 to defend the legality of the Sunday Ticket against a class-action lawsuit. 

On Friday, the league and plaintiffs—two certified classes that represent at least 2.4 million residential subscribers who purchased the Sunday Ticket after June 17, 2011, and at least 48,000 commercial establishments that have subscribed during the same period—jointly filed their witness lists. Some of the witnesses would be expected to testify live while others would give testimony through sworn, out-of-court depositions. 

The gist of the case is whether the NFL and its teams agreeing to make out-of-market broadcasts available through Sunday Ticket violates antitrust law, since that arrangement denies individual teams the chance to sell their broadcasting rights to other markets. For example, the Cowboys, knowing they have many fans in Chicago, could theoretically negotiate a TV deal with a Chicago station to show Cowboys games; currently Chicago-based Cowboys fans need to subscribe to Sunday Ticket to watch their team, since all of the teams agree to not market games in out-of-town markets.

The plaintiffs say they will call Jones, a member of the league’s broadcast and media committees, to testify about “the rights of NFL teams to license game broadcasts and trademarks and the distribution of out-of-market games on television.” Another member of those committees, Kraft, will similarly be expected to discuss the “the exclusive distribution arrangement of Sunday Ticket in the United States and the packages offered through Sunday Ticket.”

The NFL intends to question Goodell about, among other topics, the distribution of NFL games and the league’s contractual arrangements with broadcasting partners. He would also discuss the relationship between the league itself and teams, and how that shapes their broadcasting arrangements. Other listed league witnesses include CBS Sports chair Sean McManus and Fox Sports executive VP Lawrence Jones, with Kraft and Jerry Jones listed as possible defense witnesses.

While the witness list is chock-full of big names in NFL and sports media circles, the latest court filing indicates the lion’s share of the testimonial time will be consumed by expert witnesses, namely two economists—Daniel Rascher, testifying on behalf of the plaintiffs, and Douglas Bernheim, on behalf of the NFL defendants. Rascher, a professor at the University of San Francisco, previously served as the main expert for the college athlete plaintiffs who successfully sued the NCAA over its cap on educational related benefits in NCAA v. Alston. Bernheim, a professor at Stanford, was the expert retained by Fortnite-maker Epic Games, which won a unanimous jury verdict last month in its antitrust suit against Google over its app distribution service, Google Play.

Based on the witness list, the trial could complicate the lives of other media and sports companies that are tangentially related to the dispute at hand. For example, the plaintiffs say they expect to call Steve Bornstein, now the North American president for Genius Sports—who previously served as an ESPN executive and as CEO of the NFL Network. Bornstein, the plaintiffs say, “will testify about the popularity of NFL game telecasts, the creation and distribution of NFL RedZone, and league policies regarding game broadcasts.”

Genius Sports became the NFL’s official data provider in 2021, agreeing to pay the league hundreds of millions in cash and equity in a partnership that has since been extended. The NFL and the English Premier League are Genius’ most important sports partners by a wide margin, given the exclusive nature of their relationships and the global popularity of their contests.

Bornstein was hired to run Genius’ U.S. business shortly after that deal was announced, with the NFL relationship being his chief mandate and his NFL experience no doubt viewed as an asset. That same year Genius appointed Kim Williams-Bradley, another former NFL and NFL Network executive, to its board.  

If the class action plaintiffs prevail, court records project damages of about $6.1 billion. The NFL could appeal a trial loss to the U.S. Court of Appeals for the Ninth Circuit and later the U.S. Supreme Court. This litigation, which began 2015, has already been reviewed by the Ninth Circuit on related grounds. It could wind up there again.

It’s also possible the league and plaintiffs will negotiate a settlement before the trial begins. A settlement would entail the league agreeing to pay class members in exchange for dropping their claims. 

A settlement would probably be attractive to the NFL. The league likely wants to avoid owners facing cross-examination from skilled litigators who might ask them questions on a range of topics that elicit unflattering admissions. Remember, owners are accustomed to being in charge—they’re owners, after all—but they’d face a very different power dynamic in a trial. They’d be on a witness stand in a federal courtroom, having to give sworn testimony (under penalty of perjury) in response to questions posed by seasoned attorney while eyeing a judge seated above and jurors intently watching. The owner won’t be in charge.

Recall the NFL and the city and county governments of St. Louis reached a $790 million settlement in 2021, about six weeks before a trial that would have featured owners and league officials testifying about the controversial process that led to the Rams relocating to Los Angeles.