By Scott Young
London. Munich. Mexico City. When you think “American Football,” these aren’t exactly the first locations that come to mind.
Nevertheless, since 2007, the National Football League has officially hosted more than 50 regular season games overseas as part of its NFL International Series.
Before a standing room only audience of students at Harvard law School this fall, NFL Executive Vice President and General Counsel Jeff Pash (Harvard 1980) discussed his work to help “grow the game” on the league’s behalf. He also shared examples of how cultural differences in these new locations can present unexpected challenges.
“We recently played a game in Brazil. Of course, fans go to games here in the U.S. with their faces painted in team colors all the time,” recalled Pash. “You can’t do that in Brazil. The police won’t let you in if you have your face painted. So, we literally had to station people at the gates for these fans from Philadelphia who came painted to help wipe the face paint off as they were trying to get in.”
Jointly hosted by Harvard Law’s Journal of Sports and Entertainment Law and the Committee on Sports and Entertainment Law, the conversation with Pash touched on new legal issues affecting the league, reflections on his exceptional career, and his advice for students interested in the world of professional sports.
Prompted by second-year law student Caleigh Sturgeon, who moderated the event, Pash discussed his perspectives on the recent NFL Sunday Ticket litigation — an antitrust claim originally filed by a class action of satellite TV customers, which was resolved in early August. The plaintiffs’ antitrust claim alleged satellite customers had paid unfairly inflated prices since the NFL began licensing exclusive rights to out-of-market football games to DirecTV in 1994.
According to Pash, the Sunday Ticket case involved a variety of unique factors and legal issues that set it apart from the usual lawsuits brought against the league. Although the plaintiffs had strung together a series of pretrial victories, in court, Pash noticed their initial momentum fading fast.
“During the trial, the judge was very critical of the plaintiffs’ case on numerous occasions,” said Pash. “That was unexpected because, to that point, he really had not done much in our favor,” including, he noted, his decision to certify the class of litigants over the NFL’s objections.
“Ultimately, though, I think the plaintiffs made a very big mistake in how they tried this case,” he added. And the judge seems to have agreed.
Under the jury’s initial $4.8 billion verdict in favor of the plaintiffs, each professional football team would have owed the certified class of satellite customers $449.6 million. Moreover, under the treble damages rule, the league also faced the possibility of paying as much as $14.39 billion in damages.
However, U.S. District Court Judge Philip S. Gutierrez overturned the verdict by approving the NFL’s J.N.O.V. motion, a ‘Hail Mary’ pass usually only granted in exceptional circumstances. According to Pash, the plaintiffs were expected to present a case based on straightforward arguments and standard financial damage calculations. But the reasoning and testimony that followed, he said, were anything but.
“Instead, they were all over the place. They brought in all kinds of theories, and they had experts who basically seemed like they were making it up as they went along,” said Pash.
Credit: Lorin Granger
After hearing testimony given by the plaintiffs’ expert witnesses, Pash recalled hearing the judge express regret over his decision to allow them to be considered “expert witnesses” in the first place. “We were about three-quarters of the way through the trial when the judge mentioned, ‘I think I should have granted [the defendants’] Daubert motions,’” referring to the legal standard for determining when expert testimony is admissible in court.
According to Pash, the way the jury calculated the $4.8 billion in damages also played a significant role in the court’s decision. In his order reversing the verdict, Judge Gutierrez ruled the jury had misapplied financial data related to the discounted price Sunday Ticket customers received for signing up for DirecTV.
“What the jury did to determine damages was take the difference between the average price for the Sunday Ticket package and the list price, and multiplied that by the number of subscribers,” said Pash. In doing so, he said, jurors calculated damages using numbers that were unrelated to the antitrust allegations at issue. “The judge correctly found that reasoning completely irrational and unsupported by any evidence, so we were able to convince court to throw the case out.”
The lunchtime conversation also provided Pash an opportunity to discuss the league’s recent decision to grant private equity firms limited permission to invest in NFL franchises. Although the recent announcement was met with consternation among some fans, Pash explained the league’s motivation for opening the door to funds acquiring up to 10% of an NFL team’s value.
“We did it because franchise values were getting to a point where it was creating problems in terms of financing transactions and issues in terms of succession,” said Pash. “Take a team like the Pittsburgh Steelers or New York Giants, that has been family-owned for the better part of a century. When the original owner passes away, there’s a gigantic state tax with ownership fragmented among many family members.”
“The private equity option gives a vehicle for some family members, if they want to exit at a fair price, to allow succession to go forward and avoid estate complications,” he said. “It gives the investors very little decision-making power or governance rights, while providing teams additional source of capital that I think will help franchises better manage these challenges.”
Pash, who announced his plan to retire this past May, also took questions from the students in attendance on a variety of topics including the gambling industry, union relations, and player conduct and safety. Before the lunch concluded, he thanked the Journal of Sports and Entertainment Law, the Committee on Sports and Entertainment Law, and Harvard Law lecturer Peter Carfagna for the opportunity to share his experience with students.
His final word advice for students interested in sports law as a career.
“Don’t worry. Don’t worry about being a sports lawyer,” advised Pash. “If you want to be a sports lawyer, don’t worry about being a sports lawyer right now. When you go to a firm and start your work there just be a good litigator, or be good IP lawyer, or be good at corporate finance. Be a good tax lawyer, or be a good international voice, and there will be a place in the sports world for you.”
This article initially appeared in Harvard Law Today.
