The National Football League improperly introduced new arguments into their defense of the decision to dismiss the $4.7 billion verdict in their favor in the Sunday Ticket antitrust trial last year, a group of subscribers told the Ninth Circuit.

The Sunday Ticket subscribers claimed that the NFL added arguments regarding two experts from the jury trial that they had not included in their initial brief following the subscribers' September 2024 appeal and in their cross-appeal, asking the judges to strike 13 pages of the reply brief the league and its teams filed in October.

In their motion Thursday, the subscribers said the NFL violated the Federal Rules of Appellate Procedure by adding those arguments, because it prevents both sides from being heard on the issue, and the new argument opens the door to reargue a point from the jury trial.

The subscribers asked that if the court rules against deleting the pages from the reply brief, they be permitted to file a sur-reply explaining why the NFL's actions were improper.

"Defendants cannot change their theory on reply and get a sur-reply as a bonus,'' the subscribers told the Ninth Circuit.

After a California federal jury sided with the Sunday Ticket subscribers in June 2024 in their argument that the NFL had illegally fixed prices on the subscription service, U.S. District Judge Philip S. Gutierrez vacated the verdict and then entered judgment in the NFL's favor ruling that testimony by experts John Douglas Zona and Daniel Rascher had presented "flawed methodologies" and should not have been given the weight the jury gave it.

In their motion Thursday, the subscribers pointed at the NFL's reply brief argument that the plaintiff classes should be decertified even if the experts' testimony was readmitted on appeal — contrary to the argument in its original brief in June, which said that excluding the testimony should lead to decertifying the classes.

"Nowhere in their opening brief do defendants argue that plaintiffs' certification case fails even with Rascher and Zona's testimony, so plaintiffs had no reason to address this non-existent argument,'' the subscribers said.

Just as important, the subscribers continued, the NFL was wrong to include the new argument regarding class certification and the inclusion of expert testimony, because it was "a pretext to rehash their defense of the post-trial Daubert rulings, which are wholly irrelevant to their cross-appeal.''

Judge Gutierrez had denied the NFL's Daubert motion to exclude the expert testimony during the jury trial, then reversed himself in basing the case's dismissal on the exclusion of the testimony.

"There is a reason defendants waited until reply to raise these arguments. The response is devastating,'' the subscribers said. "The Court should not consider these issues without affording plaintiffs the opportunity to make the counterarguments defendants hoped to avoid.''

Representatives for the NFL declined comment on the motion on Thursday. Representatives for the subscribers did not immediately reply to a request for comment.

The class members are represented by Ian B. Crosby, Marc M. Seltzer, Kalpana Srinivasan, Amanda Bonn, William C. Carmody, Seth Ard and Ian M. Gore of Susman Godfrey LLP, Scott Martin, Sathya S. Gosselin and Christopher L. Lebsock of Hausfeld LLP, and Howard Langer, Edward Diver and Peter Leckman of Langer Grogan & Diver PC.

The NFL and the individual NFL teams are represented by Paul D. Clement and Erin E. Murphy of Clement & Murphy PLLC, Rakesh N. Kilaru, Beth A. Wilkinson and Brian L. Stekloff of Wilkinson Stekloff LLP, and Theodore J. Boutrous Jr., Daniel G. Swanson, Christopher D. Dusseault and Cynthia Richman of Gibson Dunn & Crutcher LLP.

The district court case is In re: National Football League's Sunday Ticket Antitrust Litigation, case number 2:15-ml-02668, in the U.S. District Court for the Central District of California.

The appellate case is Ninth Inning Inc. et al. v. National Football League Inc. et al., case number 24-5493, in the U.S. Court of Appeals for the Ninth Circuit.