The California federal trial in a multibillion-dollar antitrust suit against the NFL by Sunday Ticket subscribers kicked off Wednesday with the seating of eight jurors and two alternates, after some potential jurors were eliminated for expressing strong views on former NFL quarterback Colin Kaepernick, player concussions, and the league's significant wealth.

The long-running case was brought by a class of NFL fans who purchased the NFL Sunday Ticket package through DirecTV, and another class of businesses such as bars and restaurants that purchased the package. Both are challenging the exclusivity agreement the NFL has with DirecTV for Sunday Ticket.

NFL Sunday Ticket Antitrust Trial

A handful of jurors questioned by U.S. District Judge Philip Gutierrez were eliminated for cause after expressing their view of the NFL as a greedy organization, while the league used at least one of its peremptory challenges to dismiss a juror who expressed concern over players suffering from chronic traumatic encephalopathy, or CTE, which is a traumatic brain injury some former players have been diagnosed with after death believed to be caused by concussions.

One of the most interesting exchanges of the day occurred when a juror who appeared to be a male in his 30s was asked by the judge about an answer on his questionnaire regarding his strong views about Kaepernick, who caused controversy years ago when he chose to take a knee during some national anthems to protest police brutality against Black Americans.

It was unclear from his answer on the form how he felt about Kaepernick, but when asked, he told the judge he "sent a scathing email to the NFL and said I would never watch or support it again."

"I think the act of kneeling during the national anthem is un-American, and it was un-American for nothing to have been done to Mr. Kaepernick," he continued.

When the jurors were on a break, Judge Gutierrez told the attorneys he was going to strike the juror for cause, but William Christopher Carmody of Susman Godfrey LLP, who represents the plaintiffs, said the juror should be considered because he thought he said he could be fair in the case. The judge disagreed.

"I thought he could be rehabilitated until he started writing scathing letters to the NFL," the judge said.

Some members of the jury pool were eliminated before they were ever brought into the courtroom, based on their answers on a juror questionnaire on the case. Judge Gutierrez struck some because they appeared to be class members or for potential bias in the case, including one who expressed negative views on NFL Commissioner Roger Goodell.

Near the end of the day, eight jurors and two alternates were seated for the trial, with opening statements scheduled for Thursday morning.

The class action features two sets of plaintiffs: one of at least 2.4 million residential subscribers who purchased the Sunday Ticket package after June 17, 2011, and another of at least 48,000 bars, restaurants and other establishments that subscribed during the same period.

DirecTV and the NFL have been fighting those antitrust allegations for the better part of a decade. In late 2015, more than 20 lawsuits from bars, restaurants and fans were centralized into multidistrict litigation. The classes are seeking more than $6 billion in damages, which could also be trebled under antitrust law.

In their suit, the subscribers claim that DirecTV can charge higher prices because it doesn't have competition for airing football broadcasts. They have also argued that, without the deal with the NFL to sell rights collectively, each football team would be motivated to distribute its games nationally via cable, satellite, or internet channels at competitive prices.

An initial bid to throw out the case came to a head in 2020, when the U.S. Supreme Court declined to review a Ninth Circuit decision that revived the suit. In 2021, Judge Gutierrez moved the claims against DirecTV into arbitration, but the case against the NFL remained in court. The subscribers won class certification in early 2023.

In the class certification ruling, Judge Gutierrez cast some doubt on the NFL's assertions that it is not flouting antitrust laws, and did so again in January when he denied the NFL's request for summary judgment on the subscribers' Sherman Act claims, ruling both Section 1 and Section 2 allegations would proceed toward trial.

Following that ruling, the NFL and plaintiffs jockeyed for position over what evidence could be presented at the trial, with Judge Gutierrez ruling the NFL could not describe its Sunday Ticket broadcast package as a "luxury," and that the NFL defendants can't say anything to imply that the litigation is "attorney-driven" or bring evidence related to how the subscribers met their attorneys and became part of the litigation.

Other pretrial action focused on how much of the NFL's history of being faulted for antitrust violations could be presented to a jury.

The plaintiffs are represented by Marc M. Seltzer, Kalpana Srinivasan, Amanda Bonn, William C. Carmody, Seth Ard, Tyler Finn, and Ian M. Gore of Susman Godfrey LLP, Scott Martin, Sathya S. Gosselin, Christopher L. Lebsock, Samuel Maida, and Farhad Mirzadeh of Hausfeld LLP, and Howard Langer, Edward Diver, Peter Leckman, and Kevin Trainer of Langer Grogan & Diver PC.

The NFL and individual NFL clubs are represented by Rakesh N. Kilaru, Beth A. Wilkinson, Brian L. Stekloff, Max J. Warren, Anastasia M. Pastan, and Jeremy S. Barber of Wilkinson Stekloff LLP, and Neema T. Sahni, Gregg H. Levy, Derek Ludwin, and John S. Playforth of Covington & Burling LLP.

The 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.