INDEX NO.

652044/2014

FILED: NEW YORK COUNTY CLERK 05/07/2016 12:00 AM

NYSCEF DOC. NO. 738

RECEIVED NYSCEF: 05/07/2016

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
TCR SPORTS BROADCASTING HOLDING, LLP,
Petitioner,
-againstWN PARTNER, LLC; NINE SPORTS HOLDING, LLC;
WASHINGTON NATIONALS BASEBALL CLUB, LLC;
THE OFFICE OF COMMISSIONER OF BASEBALL;
and THE COMMISSIONER OF MAJOR LEAGUE
BASEBALL,
Respondents,
-and-

Index No. 652044/2014

(IAS Part 41)
(Motion Sequence No. 020)

THE BALTIMORE ORIOLES BASEBALL CLUB and

BALTIMORE ORIOLES LIMITED PARTNERSHIP, in
its capacity as managing partner of TCR SPORTS
BROADCASTING HOLDING, LLP,
Nominal Respondents.

MEMORANDUM OF LAW IN
OPPOSITION TO MOTION TO COMPEL ARBITRATION
AND IN SUPPORT OF CROSS-MOTION FOR STAY

CHADBOURNE & PARKE LLP

1301 Avenue of the Americas
New York, New York 10019
(212) 408-5100
Attorneys for Petitioner
Thomas J. Hall
Rachel W. Thorn
Caroline Pignatelli
Of Counsel

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Petitioner TCR Sports Broadcasting Holding, LLP (TCR) d/b/a Mid-Atlantic Sports
Network (MASN), respectfully submits this memorandum of law in opposition to the
Washington Nationals Baseball Club, LLCs (the Nationals) motion for an order compelling
MASN and Nominal Respondents The Baltimore Orioles Baseball Club (the Orioles) and the
Baltimore Orioles Limited Partnership (BOLP), in its capacity as managing partner of TCR,
to comply with the Courts November 4, 2015 Decision and Order (the Decision and Order)
by arbitrating before Major League Baseballs (MLB) Revenue Sharing Definitions
Committee (the RSDC), and in support of MASNs cross-motion for a stay pursuant to CPLR
2201.1
PRELIMINARY STATEMENT
The Nationals Motion for an order compelling MASN and the Nominal Respondents to
comply with the Courts Decision and Order (Dkt. No. 639) misreads the text of that Order,
mischaracterizes material documents and exaggerates claims of financial and competitive harm.
In this case, where both sides have appealed different aspects of the Courts Decision and Order,
it would be premature and inconsistent with the principles of judicial efficiency and orderly
procedure for this dispute to be reheard by the RSDC at the very same time the Appellate
1

The Orioles and BOLP, in its capacity as managing partner of TCR, agree with, and fully join, the arguments set
forth herein. The Orioles and BOLP are referred to collectively as the Nominal Respondents.
The Affirmation of Thomas J. Hall in Opposition to Motion to Compel and in Support of Cross-Motion, dated May
6, 2016 (Hall Aff.) and the Affidavit of Michael J. Haley in Opposition to Motion to Compel and in Support of
Cross-Motion, sworn to May 5, 2016 (Haley Aff.) are submitted in support of this memorandum of law and are
referred to herein. For the convenience of the Court, documents previously filed in this action have been re-attached
as exhibits to the Hall Aff. and are referred to herein by original Dkt. No.
The following additional documents are referred to herein as follows: Memorandum of Respondent the Washington
Nationals Baseball Club, LLC in Support of Motion for an Order Compelling Petitioner TCR Sports Broadcasting
Holding, LLP (d/b/a MASN) and Nominal Respondents The Baltimore Orioles and the Baltimore Orioles Limited
Partnership to Comply with this Courts November 4, 2014 Opinion and Order by Arbitrating before Major League
Baseballs Revenue Sharing Definitions Committee, dated January 21, 2016, Dkt. No. 671 (Mot.); Affirmation of
Stephen R. Neuwirth, dated January 21, 2016, Dkt. No. 672 (Neuwirth Aff.); Affidavit of Ed Cohen, sworn to
January 20, 2016, Dkt. No. 683 (Cohen Aff.).

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Division is reviewing a claim by the Nationals and MLB that the RSDCs prior award should not
have been vacated (which if successful would moot the rehearing) and a claim by MASN and the
Nominal Respondents that the RSDC no longer can function as an appropriate forum for
resolution of the parties dispute over the Nationals telecast rights fees. It would also violate
principles of fairness to compel MASN and the Nominal Respondents to arbitrate before a
tribunal controlled by MLB when MLB is seeking to reinstate the prior award the tribunal it
controlled rendered.
In addition, the Nationals Motion rests on a mistaken assumption: the Court simply has
not ordered the parties to arbitrate before the RSDC. Nor is there currently any basis for such an
order under Section 4 of the Federal Arbitration Act (FAA), 9 U.S.C. 4. The RSDC has not
been convened; the RSDC has not convoked any hearing at which a party could appear; and the
parties have done nothing more than exchange correspondence and meet and confer concerning
their respective positions as to whether the RSDC could be appropriately convened and provide a
fair and neutral forum. 2 To be sure, MASN and the Nominal Respondents have raised serious
concerns in that regard given MLBs vigorous advocacy in favor of the now-vacated RSDC
Award; MLBs public pronouncements in support of that Award, which evidence a
predetermination; MLBs $25-million financial stake in the outcome of a future arbitration. 3
Nothing MASN or the Nominal Respondents have done rises to an unequivocal refusal to
arbitrate that could support an order compelling arbitration, as 9 U.S.C. 4 requires.
2

The parties also discussed whether a forum independent of MLB could be agreed upon.

MASN and the Nominal Respondents contend that an independent forum is mandated under these circumstances,
particularly because any future RSDC member required to be an MLB Club official undoubtedly knows of
MLBs and the Commissioners public advocacy and support of the now-vacated RSDC Award. Not only did MLB
strenuously advocate for confirmation of the Award during the vacatur proceeding in its papers and oral arguments,
but MLBs appeal seeks reinstatement of the Award. Nor can any future RSDC member help but be aware of the
Commissioners public statements evidencing the predetermined outcome that sooner or later MASN will have
to the pay the amount set forth in that now-vacated Award. Dkt. No. 620 (5/22/15 Hall Letter to Court) Ex. 1.

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As for the Nationals claim of financial harm if rehearing is stayed pending appeal,
nothing could be further from the truth. First, the Nationals have received (and continue to
receive) substantial telecast rights fees from MASN as determined by MLBs former media
rights consultant, Bortz Media & Sports Group, Inc. (Bortz). In doing so, Bortz strictly
adhered to Section 2.J.3 of the Settlement Agreements mandate to [use] the RSDCs
established methodology for evaluating all other related party telecast agreements in the
industry.4 Dkt. No. 204 (Settlement Agreement). That time-tested methodology, developed
by Bortz for MLB to determine the fair market value of telecast rights fees paid by MLB Clubowned RSNs, was expressly endorsed by MLB Commissioner Selig and consistently used and
accepted by MLB and the RSDC time and again.5 See Dkt. No. 474 (Sixteenth Report of the
RSDC); Dkt. No. 475 (Eighteenth Report of the RSDC); Dkt. No. 476 (Commissioners Ruling
to the Eighteenth Report).
Second, the Nationals fail to mention that they also have received tens of millions of
dollars in annual MASN partnership profits distributions during the pendency of this dispute,
including over $9.6 million in 2015. Haley Aff. 6. Unlike the Nationals, not every MLB Club
receives both telecast rights fees payments and profits distributions from an RSN.

Id.

Unless otherwise noted, emphasis added throughout this brief.

As Mark Wyche, the managing partner of Bortz, previously attested, MLB retained Bortz to develop the RSDCs
established methodology for determining the fair market value of related party telecast rights fees and engaged Bortz
on at least 19 occasions both before and after the merits hearing in the RSDC arbitration to apply its
methodology for all other related party telecast agreements in the industry. Dkt. No. 274 (7/22/14 Wyche Aff.)
7, 17, 24. Bortz consistently applied the RSDCs established methodology and MLB consistently accepted the
Bortz-calculated telecast rights fees as being fair market value with MASN as the only exception. Id. 27-34. In
every instance (except for MASN), Bortz conducted a profits margin analysis of the RSNs actual revenues and
expenses in its particular market area and assumed at least a 20% industry-standard profit margin from the RSNs
baseball programming. And in every instance (except for MASN), the RSDC and MLB accepted the Bortz telecast
rights fees analysis, assumed at least a 20% industry-standard profit margin for all other related party RSNs in the
industry, and even permitted some to achieve larger profit margins including some that regularly exceeded 30%.
Id. 7, 10-13, 26, 29-30. The telecast rights fees MASN pays the Nationals are fully consistent with, and reflect,
industry-standard profit margins.

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Furthermore, the Nationals continue to benefit from their increasing ownership interest in MASN
and their commensurate interest in MASNs growing asset value. Id. 7.

Again, unlike the

Nationals, not every MLB Club has an ownership interest in the RSN that telecasts its games.
Third, as discovery in this case has revealed, the Nationals were paid an additional $25 million
by MLB on a non-recourse basis above the Bortz-calculated telecast rights fees MASN has
already paid to the Nationals.
The Nationals cannot seriously claim prejudice and financial harm when they receive
telecast rights fees calculated under the RSDCs established methodology, have received tens
of millions more in annual profits distributions from MASN, have an increasing ownership
interest in an appreciating asset and were the beneficiaries of a $25 million non-recourse
payment from MLB.
Nor can the Nationals seriously contend that they are at a competitive disadvantage to
other MLB Clubs. Mot. at 15. The fact is the Nationals payroll has increased dramatically
during the pendency of this dispute, placing the Nationals in the top tier of all MLB Clubs. Hall
Aff. 9-10, Ex. 15. Evidently, the Nationals have had more than ample financial resources to
wade into the highly-competitive free agent market. The Nationals have signed several top-tier
free agents in recent yearsincluding, in 2015, a coveted free agent pitcher who inked one of the
most lucrative long-term contracts in MLB history. Moreover, according to Forbes Magazine,
since these proceedings began, the Nationals franchise value has increased by a staggering
171% to $1.3 billion, making the Nationals the ninth-most valuable team in Baseball. Hall Aff.
8, Exs. 13-14.
Equally contrived are the Nationals efforts to disclaim responsibility for the fact that
their telecast rights fees for the 20122016 period remain in dispute. After all, it was the

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Nationals who literally ripped up MASNs 2012 proposal rather than negotiate in good faith; the
Nationals who in 2012 insisted that they would retain Proskauer rather than obtain conflict-free
counsel; and the Nationals who chose to defend the evidently-partial Award in the vacatur
proceeding and now advocate for its reinstatement on appeal. It is also the Nationals who
steadfastly refuse to arbitrate before a neutral and independent forum to allow this dispute to be
promptly and finally resolved, and instead have filed this Motion, which does nothing to hasten
the resolution of this dispute as long as the appeals are pending.
The Nationals Motion should be denied in its entirety, or alternatively, stayed during the
pendency of the parties appeals.
BACKGROUND
A.

The Decision and Order Vacating the Award

On November 4, 2015, this Court granted MASNs petition to vacate the RSDC Award

for evident partiality and denied the Nationals cross-motion to confirm. In so doing, the Court
found objective facts that are unquestionably inconsistent with impartiality. Decision and
Order at 27. The Court was particularly critical of MLBs and the RSDCs complete inaction
in the face of MASNs and BOLPs well-documented concerns regarding Proskauers
representation of the Nationals. Id. In the Courts words, their failure to act objectively
demonstrates an utter lack of concern for fairness of the proceeding that is so inconsistent with
basic principles of justice that the award must be vacated. Id. (citation omitted).
The Court granted no other relief. While the Court suggested in footnote 21 that the
parties may wish to meet and confer as to whether the Nationals are willing and able to retain
counsel who do not concurrently represent MLB or the individual arbitrators and their Clubs, and
thereby return to arbitration by the RSDC, this was not an order to submit to arbitration before
the RSDC. See id. at 28-29 n.21. The Court did not order rehearing of the dispute before the

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RSDC; nor did the Nationals even move for such relief. Rather, in response to MASNs request
that the Court order rehearing before an independent forum outside of MLB and the RSDC, the
Court concluded that it did not have the legal authority to do so.6 Id. at 28 n.21.
B.

MASNs and the Nominal Respondents Appeals and the Nationals and MLBs
Cross-Appeals are Pending
On December 11, 2015, MASN, the Orioles and BOLP filed Notices of Appeal, seeking

review of the Decision and Order to the extent the Order determined that the Court lacked
authority to order rehearing of the dispute before a forum other than the RSDC, and thus
refrained from ordering rehearing before such a forum. Hall Aff. Exs. 2-3 (MASN and Nominal
Respondents Notices of Appeals and Pre-Argument Statements). On December 21, 2015, the
Nationals and MLB each filed Notices of Cross-Appeal seeking reversal of the Decision and
Order. Hall Aff. Exs. 4-5 (Nationals and MLB Notices of Cross-Appeal and Pre-Argument
Statements). The Nationals and MLB argue in their respective appeals that the Supreme Court
erred as a matter of law in vacating the arbitration award on the ground of evident partiality
and did not err with respect to any issue raised by MASN. Hall Aff. Ex. 4 (Nationals PreArgument Statement) at 6, Ex. 5 (MLB Pre-Argument Statement) at 5. Thus, all parties seek on
appeal to reverse significant aspects of this Courts Decision and Order. The Nationals and

MASN and the Nominal Respondents respectfully submit that the Court erred in this regard. Ample authority
exists for the Court to order rehearing before an independent body under the circumstances presented here. Most
notably, MLB advanced the Nationals $25 million during the pendency of the first arbitration, which MLB can
recover only if (1) a new arbitration rejects MASNs view of the fair market value of the Nationals telecast rights
fees for the years 2012 and 2013 (which MASN has already paid to the Nationals), and awards the Nationals
significantly higher rights fees; (2) MASN is sold. See Dkt. No. 473 (1/12/15 Rifkin Aff.) 39-55. None of
MASN or the Nominal Respondents are parties to that agreement, which creates a clear conflict of interest for MLB
in relation to a future arbitration, especially in light of what discovery has revealed about MLBs extensive
involvement in and control over the RSDC proceeding (including the involvement of MLB executives in tribunal
deliberations and drafting the Award). In addition, MLB strenuously opposed vacatur and repeatedly endorsed the
now-vacated Award in court filings, affidavits and arguments before the Court, punctuated by MLB Commissioner
Manfreds public pronouncement that: Sooner or later MASN is going to be required to pay those rights fees,
referring to the telecast rights fees set out in the Award. See Dkt. No. 620 (5/22/15 Hall Letter to Court) Ex. 1.

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MLB are asking the First Department to reinstate the vacated RSDC Award, whereas MASN and
the Nominal Respondents are seeking a neutral forum outside of MLB for any future arbitration.7
C.

The Nationals Request to MLB to Reconvene the RSDC

The Nationals presentation of the events leading up to their motion suffers from

selective omissions.

On November 25, 2015, the Nationals wrote to MLB Commissioner

Manfred not MASN or the Nominal Respondents, contrary to the Nationals current suggestion
(Mot. at 8) and requested that he promptly convene the RSDC and schedule hearings to
determine the Nationals telecast rights fees. Cohen Aff. Ex. A. The Nationals sent this letter
two weeks before they noticed their cross-appeal seeking reinstatement of the RSDCs earlier
Award.
MLB Chief Legal Officer Daniel Halem responded on December 7, 2015. Hall Aff. Ex.
9. MLB did not convene the RSDC as the Nationals had requested. Rather, Mr. Halem
informed the Nationals, MASN and the Nominal Respondents that MLB had retained outside
counsel, Joseph Shenker and Sullivan & Cromwell, to assist it with this matter. Mr. Halem
added that MLB would follow up with further details regarding what next steps we believe are
appropriate. Hall Aff. 5, Ex. 9.
The next day, the Nationals counsel wrote to Mr. Shenker making the extraordinary
assertion that if the Commissioner, MASN or the Orioles did not permit arbitration of the rights
for 2012-2016 before the RSDC, this would constitute contempt of Justice Marks November
4, 2015 decision and order. Hall Aff. Ex. 10. As in their current motion, the Nationals based

In January 2016, MASN began the process of perfecting its appeal, including working with all parties to reach
agreement on the content of the voluminous Joint Record on Appeal and to resolve errors in the transcripts to be
included in that Record. That process was delayed pending the parties mediation efforts, and has now resumed
since those efforts were unsuccessful. Hall Aff. 4, Exs. 6-8.

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their contempt claim on the language in footnote 21 of the Decision and Order stating that the
parties may wish to meet and confer as to whether the Nationals are willing and able to retain
counsel who do not concurrently represent MLB or the individual arbitrators and their Clubs, and
thereby return to arbitration by the RSDC.
Shortly thereafter, the Nationals requested a teleconference with Justice Marks Principal
Law Clerk, seeking leave to file this motion. On January 6, 2016, after that teleconference took
place and the briefing schedule for this motion was fixed, MLB advised the Nationals and
MASN that MLB will not be making any determinations about a reconvened process until the
Court rules on the motion and/or in connection with any such mediation. Hall Aff. Ex. 11. On
January 21, 2016, the Nationals filed their Motion.8
Remarkably, the Nationals Motion does not even mention let alone attach MLBs
letter of December 7, 2015, the Nationals December 8, 2015 response or Mr. Shenkers letter of
January 6, 2016. To be sure, MASN and the Nominal Respondents have expressed grave
concerns about the impartiality of the MLB-controlled RSDC to rehear the telecast rights fees
dispute and have suggested that absent agreement on a mutually acceptable forum, any new
arbitration should await a determination of all appeals. Neuwirth Aff. Exs. 2, 4. As these letters
make clear, however, it is the MLB Commissioner, not MASN, who has the ability to convene
the RSDC, and he thus far has declined to do so. Hall Aff. Exs. 9, 11. The Nationals Motion
does not seek any relief against MLB.

On February 9, 2016, the parties participated in an in-person status conference with Justice Marks Principal Law
Clerk, where the Nationals motion to compel was held in abeyance. At the Courts encouragement, the parties
proceeded to mediation on April 12 and 13, 2016, but no resolution has yet been reached.

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ARGUMENT
I.
THE MOTION TO COMPEL SHOULD BE DENIED BECAUSE
IT IS BASELESS AND PREMATURE
The Nationals Motion to compel rests on a clear misinterpretation of the Courts
Decision and Order. The Nationals contend that after vacating the prior arbitration award, the
Courts Decision and Order went on to direct that, [b]ased on [the Nationals] decision to switch
counsel, an arbitration before the RSDC, as presently constituted, be convened promptly to
determine the rights fees. Mot. at 8. But that is not what the Decision and Order says. On page
29, the Court sets out the Decision and Order of the Court and specifically the relief that has
been Ordered. The language on which the Nationals purport to rely upon is not there. Instead,
the Nationals cite to a footnote outside the portion that decrees the Courts directive that
describes steps that the parties may wish to consider. That language does not constitute an
order to arbitrate.
Nor would there be any ground to compel arbitration under Section 4 of the Federal
Arbitration Act (which the Nationals appear at times to invoke). See Mot. at 12. To date, MLB
has not convened a new RSDC proceeding or even communicated the composition of the panel
to the Nationals, MASN and the Nominal Respondents. While MASN, the Orioles and BOLP
have communicated to MLB and the Nationals their position that the dispute should be arbitrated
before a neutral forum, such as AAA (the precise issue on appeal), they have not taken actions
that disregard the application and effect of the arbitration clause (such as by bringing a
freestanding suit in court to determine the Nationals telecast rights fees). Accordingly, as a
matter of law, MASN and the Nominal Respondents have not demonstrated the unambiguous
refusal to arbitrate that is a necessary precondition to an order compelling arbitration. The

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Nationals motion is premature, misdirected and baseless, and it should be denied.

A.

Footnote 21 Does Not Constitute an Order to Arbitrate

The Nationals primary argument is that the Court should enforce the Decision and

Order, which, in their view, plain[ly] requires re-arbitration before the RSDC because the
Nationals have selected new counsel. Mot. at 1, 11. This argument is meritless because the
operative part of the Order does no such thing.
The Court set out what constitutes [its] Decision and Order in clear terms:
[It is] ORDERED that the Amended Verified Petition to Vacate Arbitration
Award is granted only to the extent that the June 30, 2014 RSDC Award is hereby
vacated, and is otherwise denied; and it is further ORDERED that the CrossMotion to Confirm Arbitration Award is denied.
Decision and Order at 29. This language does not mandate the nature, forum or timing of a
future arbitration proceeding or require that the parties proceed to any arbitration.
The Nationals nonetheless attempt to characterize a footnote outside of the Order as part
of the Courts mandate. Footnote 21 reads, in relevant part:
The Court emphasizes that because it is ultimately the Nationals choice of
counsel that created the conflict, the parties may wish to meet and confer as to
whether the Nationals are willing and able to retain counsel who do not
concurrently represent MLB or the individual arbitrators and their clubs, and
thereby return to arbitration by the RSDC, however currently constituted,
pursuant to the parties Agreement. Agreement 2.J.3. If the current conflict
remains, the parties might meet and confer regarding whether they can agree to a
different neutral dispute resolution process, such as but by no means limited to
that in Section 8 of the parties own Agreement. . . .
Id. at 28-29 n.21. The language plainly does not order the parties back to arbitration. It merely
notes issues about which the parties may wish to meet and confer; it does not order any
specific action by any of the parties.
Rather than accept the footnote as written, the Nationals have reordered its text and
inserted new language in an attempt to craft an order, which they have now asked the Court to

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enforce. They contend that the Court ruled in the Decision and Order [that] the parties shall
thereby return to arbitration before the RSDC, however currently constituted if the Nationals
retain counsel who do not concurrently represent MLB or the individual arbitrators and their
clubs. Mot. at 13. But the footnote does not contain the mandatory term shall; it uses the
permissive term may and only in conjunction with the open-ended possibility of meet[ing]
and confer[ing]. Cf. Podolsky v. Narnoc Corp., 196 A.D.2d 593, 59495 (2d Dept 1993)
(contrasting the peremptory word shall and the permissive may). This permissive
language does not in any way impose a mandate upon the parties to act accordingly, see e.g.,
RCGLV Maspeth LLC v. Maspeth Props. L.L.C., 26 Misc. 3d 1241(A), at *6 (Kings Cnty. Mar.
25, 2010), and even if it did, it only would require that the parties meet and confer (as they have
done).9
Finally, the Nationals unqualified assertion that Quinn Emanuel is conflict-free is
premature. The Nationals contend that the parties must now return to the RSDC because the
Nationals retained Quinn Emanuel to replace Proskauer, and Quinn Emanuel does not
concurrently represent MLB or the individual arbitrators or their clubs. Mot. at 2. But the
Nationals also admit that there is a vacancy on the RSDC panel, which means the identity of at
least one RSDC member is currently unknown. See Mot. at 2 n.2; Cohen Aff. 6. As a result,
the Nationals cannot possibly know whether Quinn Emanuel has a current or prior relationship
with the yet-to-be appointed RSDC panel member, let alone with that unknown panelists Club,
family members or business interests. The Nationals assertion simply reflects, once again, the

In addition, the Nationals motion suffers from a patent inconsistency. The Nationals construe the Courts
language that the parties may wish to meet and confer in the first sentence of the footnote as an order. Mot. at
13. Yet they also seek to characterize nearly identical language just one sentence later that the parties might
meet and confer regarding whether they can agree to a different neutral dispute resolution process as a mere
judicial suggest[ion]. Id.

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heedless approach to fair process and conflicts of interest that corrupted the original RSDC
arbitration and led to years of litigation in this Court. For all these reasons, the Nationals
motion for an order compelling compliance with the Decision and Order should be denied.
B.

The Nationals Cannot Satisfy the Prerequisites for a Motion to Compel under the
Federal Arbitration Act
Though the Nationals have framed their motion as seeking to compel compliance with

the Decision and Order, they also cite cases addressing the standard for a free-standing petition
to compel arbitration under Section 4 of the FAA, 9 U.S.C. 4. Mot. at 12. These authorities do
not aid their argument because Section 4 authorizes a court to compel arbitration only where the
moving party demonstrates: (1) there is a present obligation to arbitrate and (2) the non-movant
has refused to comply with that obligation. Indeed, an order to compel may be granted only in
very narrow circumstances: Unless [the non-movant] commences litigation or is ordered to
arbitrate this dispute by [an arbitral forum] and fails to do so, it is not in default of any arbitration
agreement it may have, and a motion to compel may not be granted. Downing v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 725 F.2d 192, 195 (2d Cir. 1984). These circumstances are not
present here.
Neither MASN nor the Nominal Respondents has commenced litigation on the merits of
the dispute or refused to comply with an order of an arbitral forum. They have merely reiterated
their positions that this dispute should be arbitrated before a neutral and independent body
outside of MLBs ambit, and that any rehearing should await a determination of their appeals on
that very question (which otherwise would be further grounds to oppose the Motion). These
statements do not constitute an unambiguous refusal to arbitrate. Not until the objecting party is
ordered to arbitrate by the forum and fails to do so does such an objection ripen into a refusal
to arbitrate. Id.

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Furthermore, the Nationals conspicuously omit from their Motion the fact that MLB has
thus far declined to convene the RSDC despite the Nationals request that it do so.

On

November 25, 2015, the Nationals asked MLB Commissioner Manfred to convene the RSDC
and promptly schedule hearings. Cohen Aff. Ex. A. In response, MASN and the Nominal
Respondents restated their positions, well known to this Court, that the MLB-controlled RSDC is
fundamentally incapable of fairly resolving the parties dispute and that any new arbitration
should await a determination of the pending appeals. Neuwirth Aff. Ex. 2.
Following an exchange of letters between the Nationals on one side, and MASN and the
Nominal Respondents on the other, MLB responded to the Nationals and MASN that it had
retained Mr. Shenker and his firm to assist in resolving the dispute and would soon be in contact.
Hall Aff. Ex. 9. Writing on behalf of MLB, Mr. Shenker subsequently communicated that
MLB will not be making any determinations about a reconvened [RSDC] process until the
Court rules on the [instant] motion and/or in connection with any such mediation. Id. The
Nationals Motion filed after that statement by MLB studiously avoids the fact that it is MLB
and MLB alone, not MASN, not the Orioles and not BOLP that is able to convene an RSDC
arbitration and that MLB has declined to do so. Indeed, as the Nationals admit, there is a
vacancy on the panel. Yet, for whatever reason, the Nationals have sought no relief from MLB.
On these facts, there is no basis for an order compelling MASN or the Nominal Respondents to
arbitrate under the FAA. The Nationals Motion should be denied.
II.
THE COURT SHOULD GRANT THE CROSS-MOTION TO STAY
THE NATIONALS MOTION PENDING THE OUTCOME OF THE APPEALS
This Court should exercise its broad discretion under CPLR 2201 to grant MASNs
cross-motion for a stay of the Nationals motion to compel. While the Nationals bemoan delay,

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the reality is that as long as parties appeals and cross-appeals are pending, granting the
Nationals motion will not accelerate the resolution of this dispute. Instead, a new RSDC
arbitration will only waste judicial resources and time, generate more litigation and could create
a procedural morass as two (or more) proceedings on the same issue move forward in different
forums. Moreover, if either side prevails on appeal, any new arbitration would be rendered
moot. Under these circumstances, no purpose is served by compelling arbitration now. The
Nationals are being paid significant telecast rights fees (and have been since this dispute began);
have received tens of millions of dollars in profits distributions from MASN over the course of
this dispute; have been paid an additional $25 million from MLB; have a net worth of $1.3
billion; and have one of the largest payrolls in the league. The Nationals claim of prejudice if
their Motion is not granted is simply not credible. The Motion should be stayed pending the
outcome of the appeals.
A.

This Court Should Stay the Nationals Motion Pending the Appeals to Avoid
Wasted Time and Resources and the Risk of Inconsistent Rulings
CPLR 2201 grants the Court broad discretionary authority to stay proceedings in a

proper case, upon such terms as may be just. The driving principles for a stay under Section
2201 are comity, orderly procedure, and judicial economy. Asher v. Abbott Labs., 307 A.D.2d
211, 211 (1st Dept 2003). Consistent with these principles, courts routinely stay one proceeding
pending the resolution of another when there is substantial identity of the parties, overlapping
issues and common questions of law and fact and the determination of the prior action may
dispose of or limit issues which are involved in the subsequent action. Belopolsky v. Renew
Data Corp., 41 A.D.3d 322, 322-323 (1st Dept 2007) (internal quotations omitted); Asher, 307
A.D.2d at 211 (same); Minton v. Minton, 277 A.D.2d 103, 103 (1st Dept 2000) (stay proper
where related proceeding would decide an issue in the case); Schneider v. Lazard Freres & Co.,

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159 A.D.2d 291, 293 (1st Dept 1990) (reversing trial court and staying case pending
determination of a related proceeding that was likely to decide important issues in the case).
The reasons for that practice are obvious and compelling. Staying the related proceeding
prevents a duplication of effort and the waste of judicial resources, and minimizes the possibility
of inconsistent rulings. See OneBeacon Am. Ins. Co. v. Colgate-Palmolive Co., 96 A.D.3d 541,
541 (1st Dept 2012); Trinity Prods. Inc. v. Burgess Steel LLC, 18 A.D.3d 318, 318 (1st Dept
2005); Asher, 307 A.D.2d at 211-12. Here, these same factors argue powerfully in favor of a
stay because the pending appeals and cross-appeals raise overlapping issues of law and fact (and,
of course, involve the same parties).
MASNs and the Nominal Respondents appeals and the Nationals Motion to Compel
converge on the same issue: whether the Court has the authority to direct rehearing before a
forum other than the RSDC, and if so, whether the Court should exercise that authority here. See
Hall Aff. Exs. 2-3 (MASN and Nominal Respondents Notices of Appeal and Pre-Argument
Statements); Mot. at 11-17. If the Appellate Division agrees that the Court has such authority
and should exercise it, there will be no basis for compelling a second arbitration before the
RSDC as the Nationals tacitly concede. See Mot. at 18-19 (arguing against a stay on the
grounds that the Court correctly decided it did not have the authority to change the arbitral
body). The Nationals and MLBs cross-appeals, in turn, seek to reverse the Courts vacatur of
the RSDC Award. See Hall Aff. Exs. 4-5 (Nationals and MLB Notices of Appeal and PreArgument Statements). If their cross-appeals are successful, this will plainly moot the need to
rehear the dispute concerning the Nationals 2012 to 2016 telecast rights fees (and consequently
the Nationals motion to compel) because the RSDC Award will be reinstated.

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Thus, the Appellate Divisions review and resolution of the issues before it on appeal
may either dispose of, or reduce, the issues raised by the Nationals Motion. Belopolsky, 41
A.D.3d at 322-323; Wiener v. Spahn, No. 301332/08, 2013 WL 6815198, at *34 (Bronx Cnty.
April 1, 2013). If the Appellate Division rules in MASNs and the Nominal Respondents favor,
the rehearing will not be conducted by the RSDC, and if the Appellate Division rules in the
Nationals and MLBs favor, there will not be a rehearing at all. A stay would therefore
promote comity, orderly procedure, and judicial economy.

Asher, 307 A.D.2d at 211

(reversing denial of stay because there was substantial overlap of the issues and a stay [would]
avoid duplication of effort and waste of judicial resources); see also OneBeacon Am. Ins. Co.,
96 A.D.3d at 541 (affirming stay pursuant to CPLR 2201 pending the resolution of a related
appeal). Further, because all parties have appealed, none [would] suffer undue detriment or
gain undue advantage by a stay. See Trinity Prods., Inc., 18 A.D.3d at 319.
Anticipating this argument, the Nationals try to downplay their cross-appeal by
characterizing it as a purely protective measure, asserting they intend to argue that if the
Appellate Division rules against MASN and the Nominal Respondents on their appeals, then the
court need not reach the merits of the Nationals cross-appeal. Mot. at 3-4 n.3. This argument
makes little sense. The Nationals have noticed an appeal, have not withdrawn it and apparently
intend to pursue (in whatever order) their argument that this Courts order vacating the RSDC
Award should be reversed. MLB is seeking exactly the same relief, and has not declared any
intention to follow the Nationals novel protective measure strategy. In addition, MASN and
the Nominal Respondents are pursuing their own appeals. Given these positions, there is simply
no reason for a new arbitration to go forward until all of these arguments have been resolved by
the First Department.

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The Nationals also argue that a stay is unwarranted because, in their view, the appeals
raised by MASN and the Nominal Respondents are unlikely to succeed. For all the reasons
stated in their prior briefs, MASN and the Nominal Respondents do not agree. Regardless,
however, probability of success is not a factor courts must consider on a motion for stay brought
under CPLR 2201. See OneBeacon Am. Ins. Co., 96 A.D.3d at 541. The cases relied upon by
the Nationals all involve motions under CPLR 5519(c), which allows a court to stay all
proceedings to enforce the judgement or order appealed from pending an appeal.
Unlike CPLR 2201, which permits a court to grant a stay of proceedings in a proper
case, upon such terms as may be just, one factor considered by courts when evaluating a stay
brought under CPLR 5519(c) is the strength of the moving partys position on appeal. 10
MASN has not cross-moved for a stay pending appeal under CPLR 5519(c) because the
Courts Decision and Order did not order rehearing of the telecast rights fee dispute before the
RSDC. Because CPLR 5519(c) only authorizes the stay of an order that has already been
made, such a motion would be procedurally improper. Rhodes v. Mosher, 502 N.Y.S.2d 351,
351 (4th Dep't 1985). The cases decided under CPLR 5519(c) thus have little application here.
What is more, other cases cited by the Nationals actually demonstrate that MASN and the
Nominal Respondents appeals have merit. They show that courts will displace the arbitrator
specified in the parties agreement, particularly in professional sports settings, when there is
evidence of bias and pre-determination by the league commissioner. In Morris v. N.Y. Football
Giants, Inc., 575 N.Y.S.2d 1013, 1016 (N.Y. Cnty. 1991) (cited in Mot. at 19), for instance, the
10

Even under CPLR 5519(c), moreover, the presumptive merit of an appeal is only one of many factors that courts
consider. Courts are free to consider any relevant factor. Bread & Butter LLC v. Certain Underwriters at Lloyds
London, No. 005379/08, 2009 WL 2984776, at *5 (Nassau Cnty. Sept. 1, 2009). Further, it is well established that
granting a stay under Section 5519 is entirely within the courts discretion, and that [u]nder ordinary circumstances
if the rights of the parties are not jeopardized to any extent or if suitable terms can be imposed to protect the rights of
the parties, a stay will be granted as such action constitutes the exercise of the sound discretion of the court. See
Application of Mott, 123 N.Y.S.2d 603, 609 (Oswego Cnty. 1953).

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court appointed an arbitrator instead of directing arbitration before the NFL Commissioner, as
the parties agreement provided, because it found the then-Commissioner had previously
advocated against plaintiffs position in the dispute and was therefore biased. Similarly, in
Erving v. Va. Squires Basketball Club, 349 F. Supp. 716, 719 (E.D.N.Y. 1972), affd, 468 F.2d
1064 (2d Cir. 1972) (cited in Mot. at 19), the court ordered arbitration before a neutral arbitrator,
instead of the American Basketball Association Commissioner, as the arbitration clause
provided, because of the Commissioners relationship with counsel representing the defendant.
MASN and the Nominal Respondents appeals are meritorious and should be permitted to
proceed in the ordinary course.
The Nationals should not be permitted to have it both ways. Where, as in this case, a
party seeks to compel a new arbitration at the same time it seeks to reinstate the prior arbitral
award, the equities and the interests of orderly procedure and judicial economy demand a stay.
B.

A Stay Will Not Prejudice the Nationals

Staying the Motion until the Appellate Division rules will not prejudice the Nationals.

More rhetoric than substance, the Nationals alleged prejudice is nothing more than a vague and
unsubstantiated claim that they have been forced to fund some unquantified portion of their
player payroll through reserves and have been hamstrung in their efforts to make some
unspecified improvements to their stadium, all of which supposedly would be alleviated if the
RSDC awards higher telecast rights fees. See Mot. at 15-16; Cohen Aff. 10. The Nationals
have failed to articulate a single concrete harm that will result from a stay of this Motion. See
generally Mot. at 14-17; Cohen Aff. 7-11.
In point of fact, this dispute and these proceedings have not caused the Nationals
financial harm. The Nationals have been, and continue to be, paid by MASN the full amount of
telecast rights fees due, as properly determined under Section 2.J.3 of the Settlement Agreement.
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Mr. Cohen and the Nationals wrongly claim the Club is owed additional telecast rights fees
based on a gross misquoting of Section 2.J.3. Section 2.J.3 does not, as Mr. Cohen incorrectly
asserts, refer to the fair market value of telecast rights fees in a vacuum, untethered to a
methodology. To the contrary, Section 2.J.3 mandates a specific methodology for determining
the fair market value of the Nationals telecast rights fees. It expressly states that the fair
market value of the Clubs telecast rights fees shall be determined by the [RSDC] using the
RSDCs established methodology for all other related party telecast agreements in the industry.
In misquoting the Settlement Agreement in the manner in which they do, Mr. Cohen and the
Nationals conveniently omit two very important and integral concepts of the methodology,
which were vigorously bargained for during the Settlement Agreement negotiations. Those two
concepts the mandatory application of the RSDCs established methodology and the
requirement that MASN be evaluated like all other related party telecast agreements in the
industry are critical and cannot be ignored.11
In order to strictly adhere to that methodology, MASN retained Bortz, MLBs long-time
consultant who developed the RSDCs established methodology and applied it consistently on
MLBs and RSDCs behalf over 19 times. Bortz used the RSDCs established methodology to
determine the fair market value of the Nationals telecast rights fees, as Bortz managing partner,
Mark Wyche, has previously attested. Dkt. No. 274 (7/22/14 Wyche Aff.) 7, 18. Far from
putting the Nationals at a competitive disadvantage, the telecast rights fees paid by MASN to

11

In his affidavit, Mr. Cohen also incorrectly asserts that the Settlement Agreement was structured to pay belowmarket telecast rights fees for the first seven years (2005-2012), and that after this period expired, the RSDC would
correct that asserted inadequacy going forward. Mr. Cohens understandings, however obtained, are factually
inaccurate and inconsistent with the express terms of the Settlement Agreement. Not only did MLB propose the
amounts of the telecast rights fees for this period and represent them to be at fair market value, those telecast rights
fees are empirically at fair market value. Dkt. No. 68 (8/12/14 Haley Aff.) 15-17; Dkt. No. 73 (8/11/14 Wyche
Aff.) 4-5; Dkt. No. 246 (9/23/14 Rifkin Aff.) 14-17.

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the Nationals exceed the amount of telecast rights fees paid to many other MLB Clubs, as shown
by the information reported in MLBs Financial Information Questionnaires (current through
2014) (FIQs).12 Haley Aff. 6, Ex. 1. In addition, the Nationals have received tens of millions
of dollars in profits distributions from MASN, including over $9.6 million paid to the Nationals
in 2015. Haley Aff. 6.
Mr. Cohen and the Nationals also ignore that the Nationals asset value in MASN
increased substantially since the Nationals became a partner in MASN, including during the
pendency of this dispute. The Nationals partnership interest has increased from an initial 10%
to its current 17%, and will continue to increase at a rate of 1% per year until it is ultimately
capped at 33%. Haley Aff. 7; Dkt. No. 204 (Settlement Agreement) at 2.N. Moreover, as
MASNs EBITDA has grown, the Nationals asset value in MASN has appreciated
correspondingly. Haley Aff. 7.
Further, in August 2013, before the RSDC rendered its Award, MLB advanced the
Nationals $25 million under an agreement between themselves; neither MASN nor the Nominal
Respondents are parties. Dkt. No. 453 ($25 Million Letter Agreement). Ostensibly, the purpose
of this payment was to cover additional telecast rights fees that would be awarded for the years
2012 and 2013. It is undisputed that at the time the Nationals and MLB entered their agreement,
MASN had been paying Bortz-level telecast rights fees to the Nationals. Indeed, the NationalsMLB agreement expressly referenced MASNs prior and continuing payments, and incorporated
those payments into the calculation that $25 million would make [the Nationals] whole for the
difference between what MASN was already paying and the award that the Nationals and MLB
12

MLBs FIQs do no include profit distributions made to the Clubs from their RSNs. Unlike the Nationals, many
Clubs do not have an ownership interest in the RSNs that telecast their games and therefore do not receive any
profits distributions. Haley Aff. 6. If anything, the Nationals financial benefits and asset interest flowing from
MASN gives them a competitive advantage compared to many other MLB Clubs.

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expected the RSDC would make for 2012 and 2013. See Dkt. No. 452 ($25 Million Letter
Agreement) 2-3.
With respect to repayment of the $25 million to MLB, the Nationals-MLB agreement
provides that if the RSDC issues a decision that covers 2012 and/or 2013, any payments from
MASN otherwise due to the Nationalsthat is, any amounts above what MASN had already
paid to the Nationals will be made first to the Commissioners Office. Id. 3. Apart from
repayment through an RSDC decision in the Nationals favor or proceeds from the possible sale
of MASN, the Nationals-MLB agreement does not provide any other means for MLB to recoup
the $25 million. As MLB has admitted in open court (Dkt. No. 508 (Discovery Tr. Excerpts), the
$25 million payment is non-recourse to the Nationals; the Nationals-MLB agreement does not
require the Nationals to pay this money back. Thus, absent a sale of MASN (which has not
happened), there is only one way MLB can recoup these funds -- by causing the RSDC to issue
an award that rejects the Bortz methodology and orders higher telecast rights fees for the
Nationals.
The Nationals cannot seriously claim financial injury when they are paid significant
telecast rights fees calculated under the RSDCs established methodology, have received tens
of millions more in annual profits distributions from MASN, have an increasing ownership
interest in an appreciating asset and were the recipients of a $25 million non-recourse payment
from MLB. At bottom, the Nationals claim of prejudice rests on speculation that they will
receive inflated telecast rights fees in a future rehearing before the RSDC.
That the Nationals are confident in the outcome of a new RSDC arbitration comes as no
surprise. MLB has complete control over an RSDC proceeding; a $25 million vested interest in
the Nationals prevailing; advocated vociferously that the vacated RSDC Award should be

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confirmed; seeks to reinstate the Award on appeal; and MLBs Commissioner has publicly
decreed that sooner or later MASN will have to pay the Nationals the amounts set forth in the
vacated RSDC Award. Dkt. No. 620 (5/22/15 Hall Letter to Court) Ex. 1. The Nationals
certainty and the reasons for it -- only underscore why the telecast rights fee dispute must be
heard by an different tribunal they do not militate against a stay.
In any event, the Nationals claims of financial harm are contrary to the undisputed facts.
The Nationals who currently lead their division are the ninth-most valuable MLB Club, with
a net worth of $1.3 billion, more than double their 2012 net worth when the telecast rights fee
dispute began. Hall Aff. 8, Exs. 13-14. The Nationals payroll has also seen impressive growth
since 2006, when the Nationals became a partner in MASN. In 2006, the Nationals year-end
payroll was approximately $67 million, placing the Club in the bottom quartile of Baseball. Hall
Aff. 9-10, Ex. 15. In 2012, the Nationals year-end payroll was approximately $97 million,
placing them in the middle of the pack. Hall Aff. 10, Ex. 15. By year-end 2015, the Nationals
year-end payroll increased to almost $170 million the fifth highest in all of Baseball.13 Id.
Contrary to their claims of financial distress, the Nationals have signed lucrative
contracts with a number of sought-after free agents during the pendency of this dispute. In
January 2015, even as MASNs petition to vacate was before this Court, the Nationals inked the
largest contract in the Nationals history, and one of the largest ever in Baseball, by signing
pitcher Max Scherzer to a seven-year, $210 million contract. Hall Aff. 12, Ex. 20. In January

13

While the Nationals opening-day payroll for 2016 is somewhat lower ($145 million) and may increase or
decrease during the course of the season, nothing suggests that this was caused by the dispute or these proceedings.
A number of Nationals players became eligible for free agency and either signed with other Clubs for less or similar
money, or were not given qualifying offers because of their poor performance or injuries. Hall Aff. 11, Exs. 1618.

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2016 after the Award was vacated the Nationals signed former Mets second baseman Daniel
Murphy to a three-year deal worth $37.5 million. Hall Aff. 12, Ex. 21.
Naturally, no Club is able to sign every player it pursues that is the nature of the
competitive free-agent market. But if the Nationals have had any difficulty attracting talented
players, as Mr. Cohen claims, it is not because of this dispute or a lack of financial resources.
According to Ken Rosenthal, a prominent baseball journalist, the Nationals lost out on several
high-profile free agents last winter, despite offering similar or more money, because their
clubhouse was notorious for being chaotic, mismanaged and perceived as a less than happy and
harmonious place. Hall Aff. 13, Ex. 22. In the same interview, Rosenthal observed The idea
that this is Team Toxic . . . that idea is out there. And the Nationals can dispute it all they want,
but theyve struck out a few times here. [W]hen you add it all up, you start to wonder. Id. at
3.
The Nationals organization became headline news last September when Nationals
pitcher Jonathan Papelbon attacked teammate Bryce Harper in the dugout after a verbal
altercation. Hall Aff. 15, Ex. 24. One Nationals player subsequently admitted that the
Nationals clubhouse is a terrible environment and the amazing part is that everybody [on the
team] feels this way. Hall Aff. 15, Ex. 25. As one ESPN reporter commented in January
2016: [The] Nationals have to wonder: Does anyone want to play in D.C. Hall Aff. 14, Ex.
23.
Finally, even if the Nationals could articulate some actual harm that would be caused by a
stay, on balance, the goals of judicial economy, orderly procedure and the prevention of
inequitable (and possibly inconsistent) results would outweigh any possible prejudice to the
Nationals. See OneBeacon Am. Ins. Co., 96 A.D.3d at 541.

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If the Nationals Motion is not stayed, MASN will be forced to arbitrate before the MLBcontrolled RSDC at the same time it advocates against MLB in the Appellate Division, and
challenges the impartiality and fairness of a tribunal that the MLB Commissioner appoints and
that includes high-ranking MLB officials in its deliberations and decision-making process.
Worse still, this would occur while MLB seeks to reinstate the prior RSDCs Award on appeal.
Such a result offends basic principles of justice and would be fundamentally unfair.
Moreover, if the new RSDC arbitration produced an award before the appeals were
decided, the courts would face the specter of two simultaneous vacatur proceedings on the same
subject. The Appellate Division would be addressing the fairness and neutrality of the first
RSDC proceeding while the Supreme Court considered the propriety of the second proceeding.
That sort of circumstance could only create procedural complications and waste judicial
resources. The far more logical and appropriate course is to give the Appellate Division the
opportunity to address the issues raised by the parties appeals, and then to allow all parties to
proceed based on the outcome of those appeals. See Schneider, 159 A.D.2d at 293 (staying case
pending motion in related proceeding that could have a preclusive effect); Barron v. Bluhdorn,
68 A.D.2d 809, 810 (1st Dept 1979) (staying case pending related proceeding to avoid wasting
resources and duplicating efforts).
CONCLUSION
For all the foregoing reasons, and the reasons set forth in the Affirmation of Thomas J.
Hall and Affidavit of Michael J. Haley and the exhibits annexed thereto MASN respectfully
requests that the Court deny the Nationals motion to compel and alternatively grant MASNs
cross-motion to stay.
Dated: May 6, 2016

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Respectfully submitted,
CHADBOURNE & PARKE LLP

By s/ Thomas J. Hall
Thomas J. Hall
Rachel W. Thorn
Caroline Pignatelli
1301 Avenue of the Americas
New York, New York 10019
(212) 408-5100
thall@chadbourne.com
Attorneys for Petitioner
Broadcasting Holding, LLP

TCR

Sports

The Nominal Respondents The Baltimore Orioles Baseball Club and Baltimore Orioles
Limited Partnership, in its capacity as managing partner of TCR Sports Broadcasting Holding,
LLP, join in Petitioners cross-motion to stay and this memorandum of law in support of
Petitioners opposition to motion to compel arbitration and in support of cross-motion to stay.
Respectfully submitted,
SIDLEY AUSTIN LLP
By
s/ Benjamin R. Nagin
Benjamin R. Nagin
787 Seventh Avenue
New York, New York 10019
(212) 839-5300
bnagin@sidley.com
Carter G. Phillips, pro hac vice
Kwaku A. Akowuah
1501 K Street NW
Washington, D.C. 20005
Counsel for Nominal Respondents-Appellants
Baltimore Orioles Baseball Club and
Baltimore Orioles Limited Partnership

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Arnold Weiner, pro hac vice

Aron U. Raskas, pro hac vice
RIFKIN, WEINER, LIVINGSTON
LEVITAN & SILVER, LLC
2002 Clipper Park Road, Suite 108
Baltimore, Maryland 21211
Counsel for Nominal Respondent-Appellant
Baltimore Orioles Limited Partnership,
in its capacity as managing partner of TCR
Sports Broadcasting Holding, LLP

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