FILED: NEW YORK COUNTY CLERK 05/27/2016 04:46 PM

NYSCEF DOC. NO. 746

INDEX NO. 652044/2014

RECEIVED NYSCEF: 05/27/2016

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

TCR SPORTS BROADCASTING HOLDING, LLP,

Petitioner,
-against-

Index No. 652044/2014

(IAS Part 41)

WN PARTNER, LLC; NINE SPORTS HOLDING,

LLC; WASHINGTON NATIONALS BASEBALL
CLUB, LLC; THE OFFICE OF COMMISSIONER OF
BASEBALL; and ALLAN H. "BUD" SELIG, AS
COMMISSIONER OF MAJOR LEAGUE BASEBALL,
Respondents,
-andTHE BALTIMORE ORIOLES BASEBALL CLUB and
BALTIM ORE ORIOLES LIMITED PARTNERSHIP,
in its capacity as managing partner of TCR SPORTS
BROADCASTING HOLDING, LLP,
Nominal Res ondents.
RESPONDENTS THE OFFICE OF COMMISSIONER OF BASEBALL
AND THE COMMISSIONER OF BASEBALL'S MEMORANDUM OF
LAW IN OPPOSITION TO MASN'S CROSS-MOTION TO STAY
WILLIAMS & CONNOLLY LLP
725 Twelfth Street, N.W.
Washington, DC 20005
Telephone: (202) 434-5000
LUPKIN & AS SOCIATES PLLC
26 Broadway, Floor 19
New York, NY 10004
Telephone: (646) 367-2778

Attorneys for The Office of Commissioner

of Baseball and the Commissioner of
Baseball

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Respondents the Office of Commissioner of Baseball, d/b/a Major League Baseball

("MLB"), 1 and the Commissioner ofBaseball 2 submit this memorandum in opposition to MASN
and the Nominal Respondents' Cross-Motion to Stay (Dkt. No. 693).

PRELIMINARY STATEMENT
In Section 2.J.3 of the March 28, 2005 Agreement (the "Agreement"), the parties vested
the sole responsibility for determining the fair market value of future telecast rights fees with the
Revenue Sharing Definitions Committee ("RSDC") if MASN and the Nationals were unable to
reach agreement through negotiations. MASN acknowledges that this clause is valid and binding
and that, unless the Court enjoins the RSDC from proceeding, MASN will be required to
arbitrate the fees dispute before the RSDC. Mem. Of Law In Opp'n To Mot. To Compel
Arbitration and in Support Of Cross-Motion To Stay, Dkt. No. 738, ("MASN Br.") at 23. In an
attempt to prevent the RSDC from proceeding to determine the telecast rights fees, however,
MASN's Notice of Cross-Motion asks "for an order pursuant to Section 2201 of the [CPLR]
staying any further arbitral proceedings in connection with this dispute pending resolution of the
appeals." MASN Notice of Cross-Motion, Dkt. No. 693, at 1-2.
The issue before the Court is a narrow one: Whether it can and should stay a new RSDC
proceeding. The answer is no.
The Commissioner of Baseball has recently reconstituted the RSDC with new members,
none of whom were involved in the RSDC proceeding that led to the present lawsuit.
Affirmation of John J. Buckley, Jr. (May 27, 2016) ii 2 & Ex. 1. MASN, the Orioles, and the

Unless otherwise indicated, all capitalized terms have the same meaning as defined in MLB's Memorandum of
Law in Opposition to Petitioner's Amended Petition To Vacate Arbitration Award (Dkt. No. 285).
2
Allan H. "Bud" Selig is no longer the Commissioner of Baseball; Robert D. Manfred, Jr. became Commissioner
on January 25, 2015. MASN erroneously describes the Commissioner of Baseball in the case caption as "the
Commissioner of Major League Baseball."

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Nationals have been advised that the new RSDC will convene a hearing during the first week of
August 2016 to determine the Nationals' and Orioles' telecast rights fees for the 2012-2016 time
period. Id. at if 4 & Ex. 3. MLB respectfully submits that there is no basis for this Court to
enjoin the RSDC proceedings and that the RSDC should be allowed to determine the 2012-2016
rights fees as soon as possible. This is particularly true in light of the fact that the current dispute
is more than four years old and that the RSDC will likely soon be called upon to resolve the
parties' anticipated dispute over the rights fees for the next five-year period (2017-2021) as well.

ARGUMENT
I.

The Agreement Requires a New RSDC Proceeding To Determine the Rights Fees,
As Recognized by the Court's Decision and Order.
The Agreement requires the RSDC to determine the telecast rights fees of the Nationals

and the Orioles in the event the parties are unable to agree. In relevant part, section 2.J.3 states:
In the event that the Nationals and/or the Orioles and [MASN] are unable to
timely establish the fair market value of the Rights by negotiation and/or
mediation as set forth above, then the fair market value of the Rights shall be
determined by the Revenue Sharing Definitions Committee ("RSDC'') using the
RSDC's established methodology for evaluating all other related party telecast
agreements in the industry.

TCR Sports Broadcasting Holding, LLP v. WN Partner, LLC, 2015 WL 6746689, at *2 (Sup. Ct.
N.Y. Cnty. Nov. 4, 2015) (the "Decision and Order") (quoting the March 28, 2005 Agreement
2.J.3) (emphasis added).
In accordance with the Agreement's plain meaning and the fact that "re-writing the
parties' Agreement is outside of its authority," the Court's November 4, 2015 Decision and
Order denied MASN and the Orioles' request for an order requiring further proceedings to be
held in a forum other than the RSDC. Decision and Order at * 13 n.21. The Court
"emphasize[d]" that so long as the Nationals retained new counsel "who do not concurrently
represent MLB or the individual arbitrators and their clubs," the parties would "thereby return to
2

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arbitration to the RSDC, however currently constituted, pursuant to the parties' Agreement." Id.
(citing the March 28, 2005 Agreement 2.J.3).
Proskauer is no longer representing the Nationals before the RSDC. Affirmation of
Stephen R. Neuwirth (Jan. 21, 2016) if 13 & Ex. 3. Furthermore, the Nationals' new counsel has
confirmed that it is not concurrently representing MLB, any new RSDC member, or any of the
new RSDC members' Clubs. Affirmation of Stephen R. Neuwirth (May 27, 2016) at ifif 4-5.
MASN and the Nationals are therefore contractually obligated to "return to arbitration before the
RSDC, however currently constituted, pursuant to the parties' Agreement." Decision and Order
at* 13 n.21.
There is no impediment to the RSDC fulfilling its mandate to resolve the fees dispute
under the Agreement, as the Court has already rejected all procedural challenges to the RSDC
process raised by MASN and the Orioles. The Court found no merit to their claims of alleged
bias or corruption on the part of MLB, including the allegation that MLB's $25 million advance
to the Nationals gave MLB an impermissible stake in the outcome. Id. at *5, 8-9. The Court
similarly found no impropriety in MLB's support role, finding it akin to the assistance that "the
staff of an established arbitration organization may provide to its arbitral panels," and which "the
parties must necessarily have expected when they entered into the Agreement." Id. at *7. The
Court also rejected MASN and the Orioles' challenges to procedures used during the prior RSDC
proceeding, including those related to discovery, cross-examination, and post-hearing
submissions. Id.
MASN' s recent submission confirms that this Court is not required to take any action in
order for the RSDC to proceed to resolve the dispute. MASN agrees that the Commissioner of
Baseball has "the ability to convene the RSDC." MASN Br. at 8; see also id. at 13 ("it is

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MLB-and MLB alone, not MASN, not the Orioles and not BOLP-that is able to convene an
RSDC" proceeding). MASN and the Orioles have confirmed that "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)," and "have not
demonstrated the unambiguous refusal to arbitrate that is a necessary precondition to an order
compelling arbitration." Id at 9. MASN and the Orioles have also represented that,
notwithstanding their pending appeals and correspondence following the Decision and Order,
they have not "refused to comply with an order of an arbitral form" or made any "unambiguous
refusal" to appear at a new RSDC proceeding. Id at 12. MASN agrees that, absent the issuance
of an order by this Court staying a new RSDC proceeding, "MASN will be forced to arbitrate"
before the RSDC. Id at 24.
Consistent with the parties' Agreement and the Court's Decision and Order, the
Commissioner has informed the parties that he has reconstituted the RSDC by appointing three
new members: Mark Attanasio, the owner of the Milwaukee Brewers; Kevin Mather, the
president of the Seattle Mariners; and Mark Shapiro, the president of the Toronto Blue Jays.
Buckley Aff. ,-r 2 & Ex. 1. As the parties were informed last December, MLB has retained
Sullivan & Cromwell LLP and its Chairman, Joseph C. Shenker, Esq., to advise and assist the
RSDC in administering the forthcoming proceeding. Id. ,-r 3 & Ex. 2. Mr. Shenker has notified
the parties that, absent a court order enjoining MLB from proceeding, the RSDC will convene a
hearing during the first week of August 2016 to determine the Nationals' and Orioles' rights fees
for the 2012-2016 time period. 3 Id. ,-i 4 & Ex. 3.

Mr. Shenker's January 6, 2016 letter informed the parties that MLB would not make any
determinations about a reconvened RSDC process until the Court ruled on the Nationals' motion
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II.

There Is No Basis To Stay a New RSDC Proceeding.

MASN cross-moves to stay "any further arbitral proceedings in connection with this

dispute" pending the resolution of the appeals from the Decision and Order. MASN Notice of
Cross Motion, Dkt. No. 693, at 1-2. Yet MASN does not cite or invoke CPLR 7503(b), which
is the sole provision authorizing stays of arbitral proceedings. 4 And MASN explicitly disclaims
reliance on CPLR 5519( c), which is the provision that allows a court to stay enforcement of its
own judgment or orders pending appeal. MASN contends that a Section 5 519 motion "would be
procedurally improper" because it asserts that the Court's Decision and Order does not order the
parties to return to the RSDC for a new proceeding. 5 MASN Br. at 17.
The result is that MASN's application to stay the RSDC proceedings relies exclusively
on CPLR 2201. But that provision is inapplicable and simply permits a court to stay its own
proceedings. It does not grant a court the power to stay or enjoin proceedings of another court.

or the parties engaged in mediation. See Affirmation of Thomas J. Hall (May 6, 2016) Ex. 11.
The parties have since engaged in a two-day mediation on April 12-13, 2016, which did not
succeed in producing an agreement, and the pending motions will be fully briefed by June 17,
2016.
4

MASN's reasons for not relying on CPLR 7503(b) are clear: It allows a court to stay an
arbitral proceeding only if (1) a valid agreement was not made or has not been complied with, or
(2) the claim sought to be arbitrated is barred by the statute of limitations. It is undisputed that
the Agreement contains a valid agreement to arbitrate. In its most recent brief alone, MASN
acknowledges that the Commissioner "has the ability to convene the RSDC," MASN Br. at 8,
and that MASN has "not take action that disregard the application and effect of the arbitration
clause," id. at 9. Similarly, at no point has any party suggested that the claims at issue in this
action are barred by the statute of limitations.
5

Moreover, a Section 5519 motion would not succeed. In Prudential Property and Casualty
Insurance Company v. Dixon, 161 Misc. 2d 87 (Sup. Ct. Nassau Cnty. 1994), the court granted a
stay of arbitration under CPLR 7503, with the proviso that it would expire after 45 days. Id. at
87. The petitioner requested the arbitration be stayed indefinitely pending the appeal, invoking
to CPLR 5 519(c). Id. at 88. The court refused to do so, finding that additional delay of the
arbitration would "frustrate the very purpose arbitration is designed to achieve," namely
"expeditious dispute resolution." Id. at 89.

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Nor does it grant a court the power to stay an arbitral proceeding. As explained in McKinney's
commentaries to the statute, "CPLR 2201 does no more than allow a court on a proper showing
to suspend an action or proceeding before it." CPLR 2201 (McKinney's Commentaries
C2201 :3); see also CPLR 2201 (McKinney's Commentaries C2201 :2) ("[T]he CPLR 2201
stay is one that the court imposes on the action or proceeding before it."); Siegel, N.Y. Practice
255 ("The word "stay" in New York practice usually connotes a court's suspension of its own
proceedings, not those of another court .... Pursuant to CPLR 2201, any court in New York can
stay its own proceedings 'in a proper case, upon such terms as may be just."' (quoting CPLR

2201)).
Courts have repeatedly held that Section 2201 does not authorize a motion to stay arbitral
proceedings. For example, the Fourth Department recently held that, "Inasmuch as a court's
participation in the [arbitration] process is limited to the provisions contained in CPLR article 75,
plaintiffs' reliance on CPLR 2201 ... in support of their motion [to stay arbitral proceedings] is
misplaced. Rather, an application to stay arbitration is governed by CPLR 7503(b)." Palladian

Health, LLC v. Summer Street Capital II, LP, 105 A.D.3d 1441, 1442 (4th Dep't 2013) (internal
quotation marks and citations omitted) (alteration in original); see also Dolomite Sp.A. v.

Beconta, Inc., 129 Misc. 2d 857, 860 (Sup. Ct. N.Y. Cnty. 1985) ("It would appear however, that
7503(b) of the CPLR entitled 'Application to compel or stay arbitration; ... ' is the rule most
applicable here rather than the far more general 2201. ").
MASN has not cited a single decision in which a court has invoked CPLR 2201 to stay
an arbitral proceeding. Rather, all ofMASN's cases involve situations in which New York
courts stayed their own judicial proceedings in light of related actions in federal court or earlier-

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filed state court actions in New York or elsewhere. 6 Apparently realizing this fact, MASN
attempts to re-cast its cross-motion as only seeking to stay the Court's consideration of the
Nationals' Motion to Compel Arbitration. MASN Br. at 5. Putting aside that its Notice of
Cross-Motion asks only for a stay of the RSDC proceeding, a stay of the Court's consideration of
the Nationals' Motion to Compel would accomplish nothing in light of the fact that the
Commissioner of Baseball has reconstituted the RSDC and that the RSDC will convene a
hearing the first week of August 2016 to determine the rights fees. MASN repeatedly
emphasizes that it is not challenging the Commissioner's right to do so and is not denying that it
must comply with the arbitration clause. See, e.g., MASN Br. at 8-9, 12-13, 24.
Moreover, there is no basis for the Court to stay its own proceedings. It is black-letter
law that, notwithstanding an appeal, a lower court continues to have jurisdiction over the action
and may "entertain and decide motions, even where the outcome of such motion practice may
impact the pending appeal." Rospigliosi v. Abbate, 31 A.D.3d 648, 650 (2d Dep't 2006). This
rule is no different in the arbitration context. See Prudential, 161 Misc. 2d at 89; cf SSL lnt'l,

PLC v. Zook, 44 A.D.3d 429, 430 (1st Dep't 2007) (noting that the court had previously denied
petitioners' application for a stay of arbitration pending the appeal of an order compelling
arbitration).

See OneBeaconAm. Ins. Co. v. Colgate-Palmolive Co., 96 A.D.3d 541 (1st Dep't 2012)
(earlier-filed state court action in Massachusetts); Belopolsky v. Renew Data Corp., 41 A.D.3d
322 (1st Dep't 2007) (earlier-filed state court action in New York); Trinity Prods. Inc. v. Burgess
Steel LLC, 18 A.D.3d 318 (1st Dep't 2005) (related federal court action); Asher v. Abbot Labs.,
307 A.D.2d 211 (1st Dep't 2003) (related federal court action); Minton v. Minton, 277 A.D.2d
103 (1st Dep't 2000) (earlier-filed state court action in New York); Schneider v. Lazard Freres
& Co., 159 A.D.2d 291 (1st Dep't 1990) (earlier-filed state court action in Delaware); Wiener v.
Spahn, 2013 WL 6815198 (Sup. Ct. Bronx Cnty. Apr. 1, 2013) (earlier-filed state court action in
Massachusetts).
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Finally, MASN's appeal is meritless and taken for delay. As the Court has already found,
MASN and the Orioles' request to transfer the arbitration to a forum other than the RSDC would
involve "re-writing the parties' Agreement," which "is outside of [the Court's] authority."
Decision and Order at* 13 n.21. 7 Any appeal of this holding is meritless given the weight of
authority holding that arbitration agreements must be enforced according to their terms. The
"overarching principle" of the FAA is that "arbitration is a matter of contract," which means that
"courts must 'rigorously enforce' arbitration agreements according to their terms." Am. Express

Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2309 (2012) (quoting Dean Witter Reynolds Inc. v.
Byrd, 470 U.S. 213, 221 (1985)). Such enforcement extends to terms specifying "the issues
[parties] choose to arbitrate," the "rules under which any arbitration will proceed," and "who will
resolve specific disputes." Stolt-Nielsen SA. v. Anima!Feeds Int'! Corp., 559 U.S. 662, 683
(2010). Here, Section 2.J of the March 28, 2005 Agreement reflects a detailed, multi-step
dispute-resolution procedure, culminating in adjudication of a specific issue (Future Rights
Fees), using a specific procedure (the RSDC's established methodology), before a specific body
(the RSDC}--a body with expertise in assessing technical, industry-specific questions of fair
market value for telecast rights. See Stolt-Nielsen, 559 U.S. at 685 (benefits of private dispute
resolution include "the ability to choose expert adjudicators to resolve specialized disputes").
Given that the RSDC has been reconstituted and will soon convene a hearing during the
first week of August 2016 to determine the telecast rights fees, and that the sole CPLR provision

MASN' s constant, out-of-context invocation of a comment Commissioner Manfred made at a

press conference last spring does not change this analysis. MASN complained about that remark
more than a year ago as a means to submit lengthy post-hearing letter briefing (see Dkt. Nos.
619-620, 633 ), MLB and the Nationals responded (Dkt. Nos. 626 & 631 ), and the Court awarded
MASN and the Orioles no relief on that issue.

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relied on by MASN (Section 2201) does not authorize stays of arbitral proceedings, MASN' s
cross-motion should be denied.

CONCLUSION
For the reasons stated, the Court should deny MASN's cross-motion and not enjoin the
RSDC from convening a hearing to determine the fair market value of the telecast rights fees for
the Nationals and the Orioles in early August.

Dated: May 27, 2016

Washington, DC
WILLIAMS & CONNOLLY LLP

John J. Buckley, Jr.

C. Bryan Wilson (pro hac vice)
725 Twelfth Street, N.W.
Washington, DC 20005
Tel: (202) 434-5000
Fax: (202) 434-5029
E-mail: jbuckley@wc.com
bwilson@wc.com
Jonathan D. Lupkin
Lupkin & Associates PLLC
26 Broadway, Floor 19
New York, NY 10004
Tel: (646) 367-2778
E-mail: jlupkin@lupkinassociates.com

Attorneys for The Office of Commissioner

of Baseball and the Commissioner of
Baseball

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