Ninth Inning Inc. v. National Football League, Inc
CourtCourt of Appeals for the Ninth Circuit
Date FiledOctober 30, 2026
Docket24-5691
StatusUnpublished
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Full Opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 30 2026
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NINTH INNING INC., doing business as No. 24-5493
The Mucky Duck; for itself and for all D.C. No.
others similarly situated; et al., 2:15-ml-02668-PSG-SK
Plaintiffs - Appellants,
MEMORANDUM*
v.
NATIONAL FOOTBALL LEAGUE, INC;
et al.,
Defendants - Appellees,
----------------------------------------
ESPN, INC. and PARAMOUNT GLOBAL,
INC.,
Intervenors.
NINTH INNING INC.; et al., No. 24-5691
Plaintiffs - Appellees, D.C. No.
2:15-ml-02668-PSG-SK
v.
PDB SPORTS LTD; et al.,
Defendants - Appellants,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
DIRECTV, LLC; et al.,
Defendants,
----------------------------------------
ESPN, INC. and PARAMOUNT GLOBAL,
INC.,
Intervenors.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted March 9, 2026
San Francisco, California
Before: H.A. THOMAS and JOHNSTONE, Circuit Judges, and LEFKOW,
District Judge.**
Ninth Inning Inc. and other Plaintiffs-Appellants-Cross Appellees (together,
the “Subscribers”) appeal from the district court’s judgment as a matter of law for
the National Football League (“NFL”) and its 32 member teams on Subscribers’
class-action antitrust claims.1 The NFL and its member teams cross-appeal,
challenging the district court’s certification of the injunctive and damage classes
**
The Honorable Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
1
In a concurrently filed opinion, we reverse the district court’s order excluding the
Subscribers’ expert testimony and granting judgment as a matter of law. We affirm
its order granting a new trial on damages.
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under Federal Rule of Civil Procedure 23(b)(2) and 23(b)(3). Fed. R. Civ. P.
23(b)(2)–(3). We have jurisdiction under 28 U.S.C. § 1291. We affirm in part,
reverse in part, and remand for further proceedings.
1. We review de novo a district court’s grant of judgment as a matter of law.
Rearden, LLC v. Walt Disney Pictures, 152 F.4th 1058, 1066 (9th Cir. 2025). The
district court erred in granting judgment as a matter of law to the NFL and its
member teams on the Subscribers’ declaratory and injunctive relief claims under
Section 16 of the Clayton Act. 15 U.S.C. § 26. “Section 16 of the Clayton Act
provides in part that ‘any person, firm, corporation, or association shall be entitled
to sue for and have injunctive relief against threatened loss or damage by a
violation of the antitrust laws.’” Cargill, Inc. v. Monfort of Colorado, Inc., 479
U.S. 104, 110–11 (1986) (quoting 15 U.S.C. § 26) (citation modified). The “threat
of injury” is distinct from whether the Subscribers suffered “actual injury.”
Datagate, Inc. v. Hewlett-Packard Co., 941 F.2d 864, 870 (9th Cir. 1991). But the
district court never evaluated the Subscribers’ Clayton Act claims for injunctive
relief, determining only that they “failed to provide evidence from which a
reasonable jury could make a finding of injury and an award of actual damages.”
Under the Federal Rules of Civil Procedure, judgment as a matter of law can be
entered only “[i]f a party has been fully heard on an issue during a jury trial and the
court finds that a reasonable jury would not have a legally sufficient evidentiary
3 24-5493
basis to find for the party on that issue.” Fed. R. Civ. P. 50(a)(1).
On remand, the district court should re-evaluate whether the Subscribers’
injunctive class claims, certified under Federal Rule of Civil Procedure 23(b)(2),
are moot now that the contract between the NFL and DirecTV has expired. There
is not enough evidence in the record to demonstrate whether “a single injunction or
declaratory judgment would provide relief to each member of the class.” Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011).
2. We review for abuse of discretion a district court’s class-certification
decisions. Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31
F.4th 651, 663 (9th Cir. 2022) (en banc). The district court did not abuse its
discretion in certifying the classes under Federal Rule of Civil Procedure 23(b)(3).
“The predominance inquiry asks whether the common, aggregation-enabling[]
issues in the case are more prevalent or important than the non-common,
aggregation-defeating, individual issues.” Id. at 664 (quoting Tyson Foods, Inc. v.
Bouaphakeo, 577 U.S. 442, 453 (2016)). The expert testimony of Dr. Rascher and
Dr. Zona was admissible under Federal Rule of Evidence 702. The Subscribers
therefore appropriately used their models to “prove . . . a common question of law
or fact that relates to a central issue in [this] antitrust class action,” which
“establish[ed] that [the] essential elements [of antitrust injury and damages] . . . are
capable of being established through a common body of evidence, applicable to the
4 24-5493
whole class.” Id. at 666 (citation modified).
AFFIRMED in part, REVERSED in part, and REMANDED for further
proceedings.2
2
Each party shall bear its own costs on appeal.
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