In a thorough document of law, urging New York Judge Joel M. Cohen to sack Warner Bros. and TBS. Lawyers for the NBA and Discovery’s breach of contract lawsuit on Friday criticized the case as defaming fundamental contract law principles and misinterpreting a right to meet.
In the wake of the NBA, TBS and WBD filed a lawsuit last quarter, and the results were that the plaintiffs disregarded Amazon’s request to broadcast games from 2025 to 2035. The NBA formally recognized Amazon Prime Video, Disney’s ABC/ESPN and NBC/Peacock as the league’s future media partners, and they’ll give$ 76.9 billion over the course of the discounts. TBS ( in part through TNT ) will no longer be the team’s primary media companion, a function it has enjoyed for 35 years. TBS and WBD assert that they should be tied to the club because they made an offer that was equal to Amazon’s.
The movement to dismiss the memo asserts that the concept of TBS and WBD is a failure for a number of factors, as suggested by Robert A. Sacks and different lawyers from Sullivan &, Cromwell and NBA professionals Rick Buchanan and Dan Spillane.
First, the NBA argues TBS’s matching rights—which are contained in a 2014 contract between TBS and the NBA granting TBS the right to distribute NBA games on the TNT linear cable television network through the 2024–2025 season—does n’t authorize a match of Amazon’s offer. While straight refers to TV channels that are “programmed in a time collection, with information offered in a particular order and at a certain time,” Amazon delivers activities through streaming.
The 2014 contract also did n’t give TBS the right to distribute games on the Internet, the league points out. In contrast, Amazon’s give says it “is the NBA’s first’ streaming-only deal” and makes obvious Amazon is receiving” no over-the-air spread, cable, satellite or other straight television right”.
The NBA maintains that this is a fact without lawful value in this debate despite the fact that NBA games are streamed on Max, which is owned by WBD. The group says the” origin of the rights” to supply games on Max is not the NBA/TBS 2014 agreement, but rather a separate contract between NBA Media Ventures and Bleacher Report and that—most relevantly these —lacks a corresponding provision.
Next, the NBA maintains that even if TBS may meet Amazon’s sell, its attempt to do so was an atmosphere game. The group contends that TBS never “fundamentally alter the distribution process required by Amazon’s sell,” specifically by moving games that would be streamed to straight cable TV. The NBA notes that TBS could have matched NBC Universal’s” separate, more expensive third-party offer”, since it contemplates linear TV distribution rights. Instead, TBS tried to match the less expensive Amazon offer and, the NBA contends, unilaterally rewrote that offer’s terms.
Third, the NBA maintains that instead of matching Amazon’s offer, TBS took Amazon’s offer, rewrote key terms to advance TBS’s interests and then announced it had accepted the revised version. The NBA says that’s not a match, but instead a new document that neither Amazon nor the NBA would accept and that, by itself, does n’t do anything. The matching provision from the 2014 agreement, the NBA contends, “unambiguously required” that TBS match each term of Amazon’s offer.
The league says TBS revised eight of 27 sections, altered 11 defined terms, crossed out about 300 words and brought in more than 270 new words. The financial security of payments is one alleged change. Since Amazon will pay about$ 1.8 billion annually, Amazon agreed to maintain an escrow account that includes three years of rights fees. These fees will be automatically deducted. TBS, in contrast, has consented to provide the league with syndicated letters of credit that the NBA can access only if TBS’s payments are late, according to the NBA.
To be clear, a defendant’s motion to dismiss is an advocacy document, meaning, like a plaintiff’s complaint, it offers a one-sided view of the key issues. TBS and WBD attorneys will have the opportunity to try to refute the NBA’s arguments. As Sportico detailed, the plaintiffs have insisted that the technological distinction between streaming and linear is not as bright line as the NBA paints it, including because ( they claim ) 70 % of Prime video watching “occurs on a television” and because, like Amazon Prime, TNT and Max are distributed via the Internet. TBS and WBD thus insist they could and did match Amazon’s offer, despite the NBA’s insistence they could n’t and did n’t.
Legal disputes over matching provisions have a long history in the sports industry, among other industries. They typically focus on the ability of a “match” to modify an offer before the changes become so significant that they no longer qualify as matches. Here, the NBA asserts not only has TBS dramatically altered Amazon’s offer but that, as a matter of first principle, TBS literally could n’t match Amazon’s offer.