The NFL’s “Sunday Ticket” trial will likely go to a jury later this week

The sides are now dueling over how Judge Philip Gutierrez should instruct the juryRyan Kang/Getty Images

A blockbuster antitrust trial involving the NFL’s off-the-market “Sunday Ticket” media package will likely go to a jury this week.

The NFL’s last designated witness, Stanford economics professor Douglass Bernheim, will continue testimony that began Thursday when proceedings begin again this morning in Los Angeles. His Thursday argument went to the heart of the league’s defense: combining a team’s media rights and selling them to a single person, an exclusive distributor, is actually pro-competitive and profane.

The plaintiffs will continue to question him today and then call one of their contradicting witnesses, Harvard professor Einer Elhauge. That means the judge and lawyers for both sides will hold a conference to agree on final jury instructions on Tuesday, with closing arguments likely on Wednesday. This may result in the case being handed over to the jury by Thursday (the court is not in session on Fridays).

The sides are now dueling over how Judge Philip Gutierrez should instruct the jury. For example, the NFL argues that Cowboys owner Jerry Jones’ testimony regarding his own lawsuit against the NFL over package sales rights in the 1990s should not be part of the considerations; the plaintiffs argue that this is important.

If a jury rules against the NFL in this case, pre-trial damages were estimated at $7 billion, which could be tripled under antitrust law. The NFL will appeal the negative ruling, and most legal observers believe the NFL has a better chance of ultimately prevailing on appeal, perhaps before the U.S. Supreme Court, than in a jury trial.

Gutierrez can also throw out part or all of a case before a jury hears it, a move enlivened by his comments last week to plaintiffs’ lawyers: “The case went in a direction it shouldn’t have gone.”

In some respects, the testimony was less spectacular than many expected. NFL Commissioner Roger Goodell’s testimony shed intriguing light on a decade of the NFL’s confidential media strategy, and fans may not like some of the emails attached to the evidence about Sunday ticket prices and options. But there has been no enthusiastic commentary on the antitrust allegations or admissions that have changed industry beliefs about how the NFL’s media business is run.

The plaintiffs failed to call Eugene Lennon and Jason Baker, two bar owners who officially represent 48,000 commercial plaintiffs who say they lost money because the NFL artificially kept prices high by limiting competition.

On Thursday, Bernheim argued on the witness stand that NFL fans would be worse off if the league allowed teams to sell media rights separately or to multiple carriers. His analysis concluded that if teams sold their media rights separately, it would destroy relative equality between teams, seriously undermining revenue sharing and the salary cap. According to Law360, Bernheim found that over the 12 years at issue in the lawsuit, if there had been no revenue sharing, seven teams would have posted losses, while the Cowboys would have had $1 billion in operating income.