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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF

NEW YORK

TCR SPORTS BROADCASTING HOLDING, LLP,

Petitioner,

-against-

W

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,

-and-

THE BALTIMORE ORIOLES BASEBALL CLUB and

BALTIMORE ORIOLES LIMITED PARTNERSHIP,

in

its capacity as managing partner ofT R SPORTS

BROADCASTING HOLDING, LLP,

Nominal Res ondents.

Index No. 652044/2014

(lAS Part 41)

RESPONDENT THE OFFICE OF COMMISSIONER

OF BASEBALL S MEMORANDUM IN OPPOSITION TO

PETITIONER S APPLICATION FOR AN ORDER TO SHOW CAUSE

Brendan

V

Sullivan, Jr.

John J Buckley, Jr.

Barry

S

Simon

WILLIAMS CONNOLLY LLP

725 Twelfth Street, N.W.

Washington, DC 20005

Tel: (202) 434-5000

Fax: (202) 434-5029

Attorneys for

he

Office

of

Commissioner of

Baseball and Allan H Bud Selig, s

Commissioner

of

Major League Baseball

ILED: NEW YORK COUNTY CLERK 08/07/2014 02:37 PM INDEX NO. 652044/

YSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/07/

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Respondent The Office

of

Commissioner

of

Baseball ( Commissioner )

1

submits this

memorandum in opposition to the application for an order to show cause submitted by Petitioner

TCR Sports Broadcasting Holding, LLP, d/b/a Mid-Atlantic Sports Network ( MASN )?

MASN meets none

of

the requirements for a temporary restraining order. Most notably, there is

and can be no irreparable harm to MASN as

this is a dispute about money between fully solvent

parties

The threatened Notice ofTermination of which MASN complains can be

extinguished immediately by

MASN itself through the payment

of

amounts that MASN owes

for 2014 to the Washington Nationals Baseball Club, LLC ( Nationals ), as the Commissioner

already has directed MASN to do by August 6, 2014.

In his letter of July 30, 2014, the Commissioner, exercising his powers under the Major

League Constitution and other agreements that provided him authority to act, including the

partnership agreement between MASN and the Nationals, directed MASN to pay the Nationals

the amounts due for 2014. The Commissioner further directed the Nationals, upon receipt of

such payments, to withdraw their Notice of Default dated May 30, 2014. The Nationals have

represented that they will comply with the Commissioner's directive to withdraw the Notice

of

Default upon receipt

of

payment. The Commissioner's July 30, 2014letter further specified that

if the interim amount that MASN is obligated to pay the Nationals for 2014 under the decision

of

the Revenue Sharing Definitions Committee ( RSDC )

3

is modified as a result

of

the pending

1

Respondent Allan

H

Bud Selig, as the Commissioner

of

Major League Baseball, joins this

submission.

2

The Commissioner understands that a motion to seal the entire case file for this matter is

pending, joins in that request, and submits this Memorandum with the understanding that it will

be covered by the pending motion to seal.

3

The Commissioner did not order MASN, at this time, to pay to the Nationals the amounts due

for 2012 and 2013. Nor did the Commissioner order MASN to pay the Orioles the amounts due

under the RSDC's decision.

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arbitration before the American Arbitration Association ( AAA ), the Nationals would be

required to reimburse MASN for any overpayments, with interest. MASN's compliance with the

Commissioner's directive would avoid all of the alleged problems of termination that MASN

raises. Thus, even ifMASN were to succeed with its arbitral challenge to the RSDC's decision,

the only harm

MASN could suffer is a temporary economic loss that the wholly solvent

Nationals can repay in full (with interest). As a matter oflaw, that is not irreparable harm. See

e.g. EdCia Corp. v McCormack 44 A.D.3d 991, 994 (2d Dep t 2007) ( Economic loss, which

is compensable by money damages, does not constitute irreparable harm. ). That principle is

especially robust when, as here, there is no question concerning the defendant's ability to pay.

See Rosenthal v Rochester Button Co. Inc. 148 A.D.2d 375, 376-77 (1st Dep t 1989) (denying

injunctive rel ief because plaintiffs failed to demonstrate that defendant was in financial distress

and likely to be unable to pay any future judgment).

Moreover, even

ifMASN

did not make the interim payment prior to August 7, 2014 and

the Nationals issued a Notice of Termination, MASN would still have the right to cure based on

the underlying contract, and avoid termination of its broadcast rights. The contract permits

MASN to cure any default predicated on the delinquent payment of rights fees by paying those

fees, with interest, t any time prior to a court's final determination of the breach.

Finally, MASN s petition to vacate is not properly before this Court because the March

28, 2005 Agreement requires the parties to arbitrate any disputes that they may have. Section

8.C. of that Agreement precludes MASN from raising before this Court its various challenges to

the RSDC decision. Indeed, MASN has already invoked that arbitral process, and MASN' s

arbitral claims encompass all ofthe issues that MASN seeks to bring before this Court. The

AAA has started the process of organizing the contractually required mediation and, if necessary,

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arbitration that will resolve any remaining disputes. This Court is obligated to defer to those

mandatory, unquestionably fair arbitration procedures. 9 U.S.C. 3; CPLR 2201 7503.

MASN's petition to vacate is a waste

of

udicial resources and an ongoing violation of

the Major League Constitution 's prohibition on litigation between

or

among Major League

Baseball Clubs (like the Nationals and the Orioles) and Major League entities (like MASN and

the Commissioner).

See Major

League Constitution, Art. VI. In any event,

MASN

is unlikely to

prevail on its claims,

even

in the arbitral forum in which they are properly raised. MASN knew

of all of the issues about

which

it now complains, either when it signed the March 28, 2005

Agreement or

in

the

more

than

two years between the initiation

of

the RSDC

process-in

which

MASN admittedly participated-and the issuance

of

its decision. MASN has waived those

claims. See Westinghouse Elec. Corp.

v NY

City Transit Auth. 82 N.Y.2d 47, 51, 55 (1993)

(rejecting challenge

to

contractual ADR procedure that empowered an employee of one ofthe

parties to resolve any disputes, subject only to limited review, and explaining that a party

should not be able to slip

out of

the deal after it eventually found the [ADR] mechanism did not

result in decisions favorable to it. ).

Furthermore,

MASN's

bogus claims of fraud and corruption-all tellingly proffered

upon information and belief' (Pet'n 13, 16, 71, 73}-have absolutely no factual basis.

Indeed, MASN knowingly agreed to submit any dispute regarding the fair market value of the

Nationals' television rights to the RSDC, which is a committee of three Club officials appointed

by the Commissioner. The

RSDC

members were appointed by the Commissioner prior to the

existence of this dispute. MASN has not (and cannot) set forth any facts that would support a

finding that the RSDC members, who are officials of the

New

York Mets, Tampa Bay Rays, and

Pittsburgh Pirates, respectively, had any bias

or

animus toward either Club in this dispute

or

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MASN. But these are issues that cannot and should

not

be addressed in this forwn, and the

Conunissioner will not do so during this manufactured emergency. The Court should deny the

application and permit the governing dispute resolution process to run its course unimpeded.

Dated: August 7, 2014

Washington,

D

Pro hac vice

application forthcoming.

WILLIAMS CONNOLLY LLP

B y : ~ / u < J

Brendan V. Sullivan,

Jr.

John J. Buckley, Jr.

Barry S. Simon '

725 Twelfth Street, N.W.

Washington, D 20005

Tel: (202) 434-5000

Fax: (202) 434-5029

Attorneys for The Office ofCommissioner

ofBaseball andAllan H Bud Selig, s

Commissioner ofMajor League Baseball

4