washington nationals' reply in support of its motion to compel arbitration

8/16/2019 Washington Nationals' Reply in Support of Its Motion to Compel Arbitration

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

TCR SPORTS BROADCASTING HOLDING, LLP,

Petitioner,

-against-

WN PARTNER, LLC; NINE SPORTS HOLDING, LLC;WASHINGTON NATIONALS BASEBALL CLUB, LLC;THE OFFICE OF THE COMMISSIONER OF BASEBALL;and ALLAN H. “BUD” SELIG, AS COMMISSIONER OFMAJOR LEAGUE BASEBALL,

Respondents,

-and-

THE BALTIMORE ORIOLES BASEBALL CLUB andBALTIMORE ORIOLES LIMITED PARTNERSHIP, in itscapacity as managing partner of TCR SPORTSBROADCASTING HOLDING, LLP,

Nominal Respondents.

Index No. 652044/2014(IAS Part 41; Marks, J.)

(Motion Sequence No. 020)

REPLY IN FURTHER SUPPORT OF MOTION FOR ORDER COMPELLING

ARBITRATION BEFORE REVENUE SHARING DEFINITIONS COMMITTEE

AND MEMORANDUM IN OPPOSITION TO CROSS-MOTION FOR STAY

QUINN EMANUEL URQUHART& SULLIVAN LLP51 Madison Avenue New York, New York 10010212-849-7000 (voice)

212-849-7100 (fax)

Attorneys for Respondent Washington Nationals Baseball Club, LLC

May 27, 2016

ILED: NEW YORK COUNTY CLERK 05/27/2016 12:32 PM INDEX NO. 652044/

YSCEF DOC. NO. 739 RECEIVED NYSCEF: 05/27/

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TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT .....................................................................................................1

ARGUMENT...................................................................................................................................5

I. THE MOTION FOR AN ORDER COMPELLING ARBITRATION BEFORETHE RSDC SHOULD BE GRANTED...............................................................................5

A. MASN And The Orioles Are Contractually Obligated To Arbitrate TheInstant Dispute Before The RSDC But Have Refused To Do So............................5

B. MASN’s And The Orioles’ Remaining Objections To An OrderCompelling Arbitration Before The RSDC Are Irrelevant And Meritless..............8

II. THE CROSS-MOTION FOR A STAY OF PROCEEDINGS SHOULD BE

DENIED.............................................................................................................................10A. MASN And The Orioles Fail To Carry Their Burden To Justify A Stay Of

Judicial And Arbitral Proceedings. ........................................................................11

B. Further Delay Will Significantly Prejudice The Nationals And UnfairlyBenefit The Orioles................................................................................................18

CONCLUSION..............................................................................................................................25

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TABLE OF AUTHORITIES

Page

Cases

Alter v. Oppenheimer & Co. Inc.,8 Misc. 3d 1008(A) (N.Y. Cnty. 2005)....................................................................................12

Arciniaga v. Gen. Motors Corp.,460 F.3d 231 (2d Cir. 2006).....................................................................................................12

Asher v. Abbott Labs.,307 A.D.2d 211 (1st Dep’t 2003) ............................................................................................13

Aviall, Inc. v. Ryder Sys., Inc.,913 F. Supp. 826 (S.D.N.Y. 1996) ..........................................................................................16

Aviall, Inc. v. Ryder Sys., Inc.,110 F.3d 892 (2d Cir. 1997)..............................................................................................15, 16

Bd. of Educ. of Bloomfield Cent. Sch. Dist. v. Christa Const., Inc.,80 N.Y.2d 1031 (1992) ............................................................................................................12

Benihana, Inc. v. Benihana of Tokyo, LLC ,784 F.3d 887 (2d Cir. 2015).....................................................................................................12

Chimart Assocs. v. Paul ,66 N.Y.2d 570 (1986) ..............................................................................................................16

Crystal Pool AS v. Trefin Tankers Ltd.,2014 WL 1883506 (S.D.N.Y. May 9, 2014) .............................................................................7

Da Silva v. Musso,76 N.Y.2d 436 (1990) ........................................................................................................11, 15

De Shazo v. Hirschler ,282 A.D.2d 257 (1st Dep’t 2001) ............................................................................................13

Denney v. BDO Seidman, L.L.P.,412 F.3d 58 (2d Cir. 2005).........................................................................................................5

Downing v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,725 F.2d 192 (2d Cir. 1984).......................................................................................................7

E.E.O.C. v. Waffle House, Inc.,534 U.S. 279 (2002).................................................................................................................12

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Emery Air Freight Corp. v. Local Union 295,786 F.2d 93 (2d Cir. 1986).......................................................................................................14

Emilio v. Sprint Spectrum, L.P.,315 F. App’x 322 (2d Cir. 2009) ...............................................................................................7

Erving v. Virginia Squires Basketball Club,349 F. Supp. 716 (E.D.N.Y. 1972) ..............................................................................15, 16, 17

Founders Ins. Co. v. Everest Nat. Ins. Co.,41 A.D.3d 350 (1st Dep’t 2007) ..............................................................................................14

G Builders IV, LLC v. Madison Park Owner, LLC ,84 A.D.3d 694 (1st Dep’t 2011) ..............................................................................................15

Gov't Employees Ins. Co. v. Arciello,129 A.D.3d 1083 (2d Dep’t 2015)...........................................................................................12

Greater Miami Baseball Club Ltd. P'ship v. Nat'l League of Prof'l Baseball Clubs,193 A.D.2d 513 (1st Dep’t 1993) ..............................................................................................5

Herbert v. City of New York ,126 A.D.2d 404 (1st Dep’t 1987) ............................................................................................15

LAIF X SPRL v. Axtel, S.A. de C. V.,390 F.3d 194 (2d Cir. 2004).......................................................................................................7

Leong v. Goldman Sachs Grp. Inc.,2016 WL 1736164 (S.D.N.Y. May 2, 2016) ...........................................................................12

Merit Ins. Co. v. Leatherby Ins. Co.,714 F.2d 673 (7th Cir. 1983) ...................................................................................................17

Morris v. N.Y. Football Giants, Inc.,575 N.Y.S.2d 1013 (N.Y. Cnty. 1991) ........................................................................15, 16, 17

Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n,2016 WL 1619883 (2d Cir. Apr. 25, 2016) .........................................................................3, 17

Nat’l Hockey League Players’ Ass’n v. Bettman,

1994 WL 738835 (S.D.N.Y. Nov. 9, 1994).............................................................................17

Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Chopper Exp., Inc.,2013 WL 3062533 (S.D.N.Y. June 19, 2013) ...........................................................................7

Nationwide Gen. Ins. Co. v. Inv’rs Ins. Co. of Am.,37 N.Y.2d 91 (1975) ................................................................................................................12

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Nezry v. Haven Ave. Owner LLC ,28 Misc. 3d 1226(A) (N.Y. Cnty. 2010)..................................................................................12

PaineWebber Inc. v. Faragalli,61 F.3d 1063 (3d Cir. 1995).......................................................................................................7

Piller v. Schwimmer ,135 A.D.3d 766 (2d Dep’t 2016).........................................................................................4, 17

Olympia & York OLP Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,214 A.D.2d 509 (1st Dep’t 1995) ............................................................................................13

Rice Co. v. Precious Flowers Ltd.,2012 WL 2006149 (S.D.N.Y. June 5, 2012) ...........................................................................14

Robert Stigwood Org., Inc. v. Devon Co.,44 N.Y.2d 922 (1978) ..............................................................................................................11

In re SSL Int’l, PLC ,44 A.D.3d 429 (1st Dep't 2007)...............................................................................................11

Sardanis v. Sumitomo Corp.,279 A.D.2d 225 (1st Dep't 2001).............................................................................................15

In re Siegel ,40 N.Y.2d 687 (1976) ................................................................................................................4

Telesat Canada v. Planetsky, Ltd.,2013 WL 592668 (S.D.N.Y. Feb. 15, 2013)..............................................................................7

Valley Nat. Bank v. Spitzer ,31 Misc. 3d 1232(A) (Kings Cnty. 2011)................................................................................11

Wallace v. Merrill Lynch Capital Servs., Inc.,12 Misc. 3d 1153(A) (N.Y. Cnty. 2006)..................................................................................12

Warberg Opportunistic Trading Fund, L.P. v. GeoResources, Inc.,112 A.D.3d 78 (1st Dep't 2013)...............................................................................................16

Weinrott v. Carp,

32 N.Y.2d 190 (1973) ..............................................................................................................13

Williams v. Nat’l Football League,582 F.3d 863 (8th Cir. 2009) ...................................................................................................17

Winfrey v. Simmons Foods, Inc.,495 F.3d 549 (8th Cir. 2007) ...................................................................................................17

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Yonkers Contracting Co. v. Port Auth. Trans-Hudson Corp.,87 N.Y.2d 927 (1996) ..........................................................................................................3, 17

Statutes and Rules

9 U.S.C. § 4..............................................................................................................................1, 5, 8

CPLR § 2201......................................................................................................................11, 13, 15

CPLR § 5519(c) .............................................................................................................................15

Other Authorities

16 N.Y. Jur. 2d CANCELLATION OF I NSTRUMENTS § 56.................................................................16

Barry Svrluga, Manfred: Orioles, MASN ignoring fundamentals of revenue shareagreement with Nationals, WASHINGTON POST, May 19, 2016.................................................9

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PRELIMINARY STATEMENT

The issues presented in the two pending motions are narrow and straightforward.

First , the parties unambiguously agreed to arbitrate the underlying rights-fees dispute

before Major League Baseball’s Revenue Sharing Definitions Committee (“RSDC”). The

Nationals have replaced Proskauer as counsel for the RSDC arbitration with a firm that does not

concurrently represent MLB, the RSDC members, or their Clubs—and, pursuant to this Court’s

Decision and Order (Nov. 4, 2015) (Dkt. 639) (“Decision and Order”) and the 2005 Telecast

Agreement, the Nationals are “thereby” entitled to arbitrate before the RSDC.1 Thus, the only

question the Court need answer prior to granting the Nationals’ motion for an order compelling

arbitration is whether MASN and the Orioles have “failed to comply” with their arbitration

obligation. 9 U.S.C. § 4. And the answer to that question is as unambiguous as the arbitration

agreement itself, for MASN and the Orioles have repeatedly demonstrated—in correspondence,

in their conduct, and in their submissions to this Court—that they will not willingly participate in

an RSDC arbitration. The prerequisites to an order compelling arbitration are thus met, and the

Nationals’ motion should be granted.

Second , the equities weigh decisively against MASN’s and the Orioles’ cross-motion for

a stay pending appeal. Exceptionally strong public policies favor arbitration, and deciding the

single, limited question raised by the Nationals’ motion will not entail significant expenditure of

1 On May 26, 2016, the MLB Commissioner informed all MLB Club owners, CEOs and

presidents that he selected Mark Attanasio, owner of the Milwaukee Brewers; Kevin Mather,President and a minority owner of the Seattle Mariners; and Mark Shapiro, President and CEO ofthe Toronto Blue Jays, to comprise the RSDC. See Reply Affidavit of Ed Cohen (May 27, 2016)at ¶ 17 at Ex. 2. The Nationals’ new counsel for arbitration before the RSDC, Quinn Emanuel,does not represent any of these individuals or teams, See Reply Affirmation of Stephen R. Neuwirth (May 27, 2016) (“Neuwirth Reply Aff.”) at ¶¶ 4-5, or Major League Baseball, seeAffirmation of Stephen R. Neuwirth (Jan. 21, 2016) (Dkt. 672) (“Neuwirth Aff.”) at ¶ 13.

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judicial resources. MASN’s and the Orioles’ mere desire to avoid RSDC arbitration is

insufficient as a matter of law to justify a stay. And on top of being legally insubstantial, any

purported benefits from a stay are entirely contingent on the remote and speculative possibility

that the Appellate Division could reverse this Court’s refusal to direct the parties to an arbitration

forum other than the RSDC—yet MASN and the Orioles identify no reason to think that the First

Department would undertake to rewrite the parties’ 2005 Telecast Agreement where this Court

did not. MASN and the Orioles attempt to recast this Court’s refusal to direct the parties to a

new arbitration forum as a reluctant decision based solely on a lack of jurisdiction, but the

Decision and Order is clear and correct in finding MASN’s and the Orioles’ effort to obtain a

new arbitral forum meritless and in contradiction of settled law.

In addition, delay in resolving the underlying dispute will cause significant harm to the

Nationals, who continue to be deprived of tens of millions of dollars in market-value rights fees

to which they will claim entitlement in the new RSDC arbitration. And such delay would also

unjustly enrich the Orioles at the Nationals’ expense. A stay pending completion of the appellate

process—which will take many months to complete, and perhaps as much as a year or more—

would greatly exacerbate these inequities while providing no countervailing benefit. The cross-

motion should be denied.

MASN and the Orioles have little of substance to say either in response to the Nationals’

motion to compel or in favor of their own cross-motion. Their brief is instead filled with

irrelevancies and naked attempts at misdirection and well-poisoning, none of which should

distract the Court from addressing the two specific issues that are actually presented for decision.

MASN and the Orioles contend that the Decision and Order did not order the parties

to arbitrate before the RSDC. That entirely misses the point, which is that this Court

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authoritatively construed the 2005 Telecast Agreement to call for a new RSDC arbitration so

long as the Nationals retained new counsel that does not concurrently represent MLB or the

RSDC members or their Clubs. The Nationals fulfilled that condition, and properly demanded a

new RSDC arbitration. Because MASN and the Orioles failed to comply with that demand, the

Federal Arbitration Act (“FAA”) requires that they be ordered to do so.

MASN and the Orioles assert that the Nationals’ arbitration demand is premature

because MLB has not yet convened the RSDC. But that is untrue, because the only requirements

for an order compelling arbitration are met: there is a valid contract to arbitrate, but MASN and

the Orioles failed to honor their contractual obligation. MLB, for its part, has indicated that it

will set a hearing date and hold the arbitration once this Court decides the instant motions. That

is a reason for the Court to grant the motion to compel, not to deny it.

MASN and the Orioles attempt to relitigate issues relating to the RSDC’s suitability

as a forum for resolving the underlying rights-fees dispute, but the Court already conclusively

rejected those arguments in the Decision and Order. That rejection was correct, not least because

MASN and the Orioles expressly agreed by contract to arbitrate before MLB’s RSDC. The

Nationals are not seeking a return to the RSDC because it is unfairly biased, but because the

parties chose a Baseball-industry forum comprised of Club-affiliated arbitrators familiar with

issues like telecast rights fees. Under the FAA, MASN and the Orioles—having voluntarily

agreed to an inside-Baseball arbitration—“can ask for no more impartiality than inheres in the

method they have chosen.” Nat’l Football League Mgmt. Council v. Nat’l Football League

Players Ass’n, 2016 WL 1619883, at *17 (2d Cir. Apr. 25, 2016); see also, e.g., Yonkers

Contracting Co. v. Port Auth. Trans-Hudson Corp., 87 N.Y.2d 927, 929 (1996) (“parties to an

arbitration contract are completely free to agree upon the identity of the arbitrators, and New

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York courts have therefore regularly refused to disqualify arbitrators on grounds of conflict of

interest or partiality even in cases where the contract expressly designate[s] a single arbitrator …

employed by one of the parties”) (internal quotation marks omitted); Piller v. Schwimmer , 135

A.D.3d 766, 768 (2d Dep’t 2016) (“An arbitrator designated by parties to a private contract may

have a preexisting business or social relationship with a party to the contract, and that fact,

without more, is not sufficient to disqualify the arbitrator”) (citing In re Siegel , 40 N.Y.2d 687,

690 (1976)). The “evident partiality” issues previously resolved by this Court are not open to

reargument, and in any event provide no basis either to defer or deny the motion to compel.

MASN and the Orioles spend many pages arguing that the Nationals are not harmed

by being deprived of tens of millions of dollars in current revenue. But it is obvious that a

baseball franchise with large annual salary expenditures is harmed when a direct competitor

withholds funds that could be used to sign players, pay for stadium improvements, and so on.

Regardless of the limited rights-fee and profits-distribution payments the Nationals have

received from MASN, the Nationals are entitled to market-value rights fees far greater than those

that MASN is currently paying. Without those monies, the Nationals (despite operating a strong

business) have been forced to fund payroll and other expenses from the Club’s own cash

reserves, and may soon be forced to seek separate or restructured financing. This is a significant

and ongoing injury that can only be remedied by prompt arbitration in the parties’ chosen forum.

MASN asserts that it has paid the Nationals “the full amount of telecast rights fees

due” as calculated under MASN’s version of the “Bortz” methodology, but the Decision and

Order expressly rejected this precise argument—ruling that the RSDC was entitled to determine

that MASN’s version of the “Bortz” methodology was inconsistent with the RSDC’s standard

methodology. The amount of rights fees due (including how to determine them) is not for

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MASN to decide unilaterally, but is precisely the issue to be arbitrated before the RSDC.

The Nationals respectfully submit that the Court should deny the motion to stay and grant

the motion to compel arbitration, so that the parties may resolve their dispute in the manner they

elected in the 2005 Telecast Agreement.

ARGUMENT

I. THE MOTION FOR AN ORDER COMPELLING ARBITRATION BEFORE THE

RSDC SHOULD BE GRANTED

A. MASN And The Orioles Are Contractually Obligated To Arbitrate The

Instant Dispute Before The RSDC But Have Refused To Do So.

As MASN and the Orioles acknowledge (MASN Opposition Memorandum (Dkt. 738)

(“MASN Br.”), at 12), a court should issue an order compelling arbitration where (1) there is a

binding and applicable agreement to arbitrate a dispute, but (2) one side manifests its intention

not to arbitrate as required by the agreement. See Nationals Opening Memorandum (Dkt. 671)

(“Nationals Br.”), at 12. Each of these two requirements is met here. MASN and the Orioles

should accordingly be compelled to arbitrate in accordance with the terms of the 2005 Telecast

Agreement, as correctly interpreted by the Decision and Order.

First , MASN and the Orioles do not dispute ( see MASN Br. 12-13) that paragraph 2.J.3

of the 2005 Telecast Agreement (5/23/2014 Hall Aff. Ex. 1 (Dkt. 204), at 8) creates a binding

agreement to arbitrate before the RSDC any dispute (such as the present one) regarding “the fair

market value of the [Telecast] Rights.” MASN and the Orioles must abide by their voluntary

election of the RSDC as the sole forum for resolving this dispute. See, e.g., 9 U.S.C. § 4;

Denney v. BDO Seidman, L.L.P., 412 F.3d 58, 68-69 (2d Cir. 2005) (arbitration should be

compelled where dispute clearly falls within arbitration agreement); Greater Miami Baseball

Club Ltd. P’ship v. Nat’l League of Prof’l Baseball Clubs, 193 A.D.2d 513, 514 (1st Dep’t 1993)

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(affirming order compelling arbitration pursuant to unambiguous arbitration agreement despite

challenge to tribunal’s impartiality).

Second , MASN’s and the Orioles’ suggestion (MASN Br. 9; see also id. at 12) that they

“have not demonstrated [an] unambiguous refusal to arbitrate” is farcical. The Nationals

requested that an RSDC arbitration be convened (Neuwirth Aff., Ex. 1 (Dkt. 673)), but MASN

and the Orioles did not even gesture towards commencing the new proceeding. Instead, they

unequivocally asserted that they “do not and will not accept that the RSDC can fairly arbitrate

this dispute now or at any time in the foreseeable future.” Neuwirth Aff., Ex. 2 (Dkt. 674), at 1.

They then went on to expressly “dispute” that “the RSDC is the proper forum for new

proceedings,” to assert that “the Nationals’ demand is … ill-considered,” and to insist that rather

than proceed to an RSDC arbitration, “the Commissioner, MLB and the Nationals should meet

and confer with MASN and the Orioles to discuss a fair, neutral and objective forum [other than

the RSDC] for the resolution of this dispute.” Id. at 2. In subsequent correspondence, MASN

and the Orioles asserted that their objections to the RSDC procedure are “incurabl[e]” and that

“[i]t is a fiction to suggest that … the RSDC can arbitrate a telecast rights fees dispute between

the parties in a fair, neutral and objective matter,” reiterating that “instead” of proceeding to the

RSDC, “the parties should … agree to meet and confer concerning the submission of this dispute

to” a different tribunal. Neuwirth Aff., Ex. 4 (Dkt. 676) (emphasis added).

Even after the parties’ in-person meeting (held January 20, 2016, Neuwirth Aff. ¶ 23)—at

which the Nationals expressed openness to suggestions for procedures that might be put in place

at the new RSDC arbitration to allay MASN’s and the Orioles’ concerns—MASN and the

Orioles have maintained their position that they will not voluntarily return to arbitration before

the RSDC under any circumstances. Indeed, MASN and the Orioles now insist again that their

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“well known” position is that the “RSDC is fundamentally incapable of fairly resolving the

parties’ dispute” (MASN Br. 13), and continue to contend that this “dispute should be arbitrated

before a neutral forum, such as AAA” rather than the RSDC (id. at 9; see also id. at 12 (similar)).

MASN and the Orioles do not explain how their opposition to a new RSDC arbitration—

repeatedly expressed in correspondence, in person, and in court filings—could be understood as

anything other than an absolute and unambiguous refusal to arbitrate in accordance with the 2005

Telecast Agreement and the Nationals’ demand.

MASN and the Orioles assert (MASN Br. 12)—citing a single case more than three

decades old—that an order compelling arbitration cannot issue unless they either “commence[]

litigation or [are] ordered to arbitrate this dispute by the [RSDC] and fail[] to do so.” Downing v.

Merrill Lynch, Pierce, Fenner & Smith, Inc., 725 F.2d 192, 195 (2d Cir. 1984). But as the

Nationals showed (Nationals Br. 12), subsequent case law has made clear that the FAA does not

require the pointless formalism of convening an arbitral tribunal just to issue an order that

inevitably will be disregarded: conduct of any kind that “unambiguously manifest[s] an intention

not to arbitrate” is sufficient. LAIF X SPRL v. Axtel, S.A. de C. V., 390 F.3d 194, 198 (2d Cir.

2004) (quoting PaineWebber Inc. v. Faragalli, 61 F.3d 1063, 1066 (3d Cir. 1995)); accord

Emilio v. Sprint Spectrum, L.P., 315 F. App’x 322, 325 (2d Cir. 2009) (“the district court did not

err in interpreting [party’s] behavior as a refusal to arbitrate” where it ceased to participate in

ongoing arbitration and sought injunction dismissing arbitration claims). Thus, failure to

respond to requests for appointment of an arbitrator suffices to warrant an order compelling

arbitration, Crystal Pool AS v. Trefin Tankers Ltd., 2014 WL 1883506, at *3 (S.D.N.Y. May 9,

2014), as does failure to respond to an arbitration demand, Telesat Canada v. Planetsky, Ltd.,

2013 WL 592668, at *3 (S.D.N.Y. Feb. 15, 2013); see also, e.g., Nat’l Union Fire Ins. Co. of

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tribunal, explaining that “re-writing the parties’ Agreement is outside [the Court’s] authority.”

Decision and Order at *13 n.21. The Decision and Order thus establishes, as the law of the case,

that MASN and the Orioles are contractually obligated to arbitrate before the RSDC so long as

the Nationals “retain counsel who do not concurrently represent MLB or the individual

arbitrators and their clubs.” Id. The Nationals have retained such counsel, dispelling the sole

barrier to RSDC arbitration that the Court identified, and are therefore entitled to arbitrate the

instant dispute before the RSDC pursuant to the 2005 Telecast Agreement. Indeed, as noted

( supra, at 5), MASN and the Orioles do not contest this contractual obligation in their brief.

Second , MASN and the Orioles wrongly complain (e.g., MASN Br. 6 n.6, 21-22) that the

RSDC is purportedly a biased forum. This Court has already rejected those arguments. The

Court found that MLB’s $25 million advance to the Nationals was only meant to partially

ameliorate the harms caused by MASN’s refusal to pay market-value rights fees, and is no

ground to conclude that the RSDC will favor the Nationals in a new arbitration. See Decision

and Order at *8-9. And the Court—fully aware of the MLB Commissioner’s May 2015

statements (on which MASN and the Orioles now again rely)—found no misconduct related to

MLB’s involvement in the arbitration. See id. at *7; see also Dkt. 619 (MASN Letter to Court

(May 22, 2015), arguing that MLB Commissioner’s public comments reflected bias). More

recently, the Commissioner has defended the RSDC as a forum, without manifesting any bias as

to the result of an arbitration there, stating: “The fundamentals are that the Orioles agreed that

the RSDC would set the rights fees for MASN and the Orioles every five years. The Orioles have

engaged in a pattern of conduct designed to avoid that agreement being effectuated.”2 MLB’s

2 Barry Svrluga, Manfred: Orioles, MASN ignoring fundamentals of revenue share agreementwith Nationals, WASHINGTON POST, May 19, 2016, https://www.washingtonpost.com/news/

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position has been that MASN will be required to pay what the RSDC determines to be the

market value of the Nationals’ rights fees, not that the RSDC should issue any particular award.

Furthermore, the Nationals’ new counsel for RSDC arbitration do not, as noted above,

represent MLB, or any of the RSDC members, or any of their teams. See p. 1 n.1, supra; see

also Neuwirth Aff. ¶ 13; Neuwirth Reply Aff. ¶ 4-5.

Third , MASN and the Orioles noted (MASN Br. 13) that MLB had not yet set a date for

the new RSDC arbitration. On May 27, 2016, however, outside counsel for MLB notified

counsel for the Nationals and MASN that “given that the pending motions to be considered by

Judge Marks will be fully briefed by June 17, please be advised that, absent a judicial order

preventing MLB from convening such proceedings, a hearing to determine the Nationals’ and

Orioles’ rights fees for the 2012-2016 period will be held before the Revenue Sharing

Definitions Committee during the first week of August 2016.” See Neuwirth Reply Aff. Ex. 1.

II. THE CROSS-MOTION FOR A STAY OF PROCEEDINGS SHOULD BE DENIED

Unable to show that they should not be compelled to arbitrate under the 2005 Telecast

Agreement, MASN and the Orioles seek to delay the inevitable by requesting a stay of

proceedings pending determination of the appeals. But that process will take at least many

months to complete, and MASN and the Orioles have not carried their heavy burden to justify

such a lengthy stay. This Court’s decision of the single straightforward question presented by

the Nationals’ motion will require no more than a de minimis expenditure of judicial resources,

and any supposed burden of arbitrating in the agreed-upon RSDC forum is not legally

significant—and is certainly insufficient to overcome the powerful public interest favoring

sports/wp/2016/05/19/manfred-orioles-masn-ignoring-fundamentals-of-revenue-share-agreement-with-nationals/.

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enforcement of unambiguous agreements to arbitrate such as the 2005 Telecast Agreement.

What is more, any purported benefit is entirely contingent on the assumption that the First

Department will reverse this Court and require arbitration of the underlying dispute outside the

RSDC; but MASN and the Orioles identify neither any error in the Decision and Order nor any

reason to believe that the Appellate Division would deviate from New York contract law.

MASN and the Orioles are also wrong to suggest that a stay is appropriate on the ground

that the Nationals and MLB have noticed cross-appeals. The cross-appeals may yet be

withdrawn, and the Nationals’ cross-appeal is expressly conditional ( see Nationals Br. 3-4 n.3)—

the Appellate Division would reach it only in the unlikely event that it were to hold that a new

arbitration should take place in a forum other than the RSDC. Finally, while the Nationals are

under no obligation to prove that a stay would be prejudicial—it is up to MASN and the Orioles

to justify a stay of proceedings, not the other way around—in fact any further postponement of

an RSDC hearing will impose significant additional burdens on the Nationals. MASN and the

Orioles have done nothing to minimize these burdens. The equities weigh heavily in favor of

proceeding with a new RSDC arbitration, and the cross-motion for a stay should be denied.

A. MASN And The Orioles Fail To Carry Their Burden

To Justify A Stay Of Judicial And Arbitral Proceedings.

MASN and the Orioles have “no entitlement to a stay” pending their appeals. Da Silva v.

Musso, 76 N.Y.2d 436, 443 n.4 (1990). Rather, they must demonstrate that this is a “proper

case” for such relief, CPLR § 2201, and therefore must bear “the burden of establishing the

necessity of a stay in order to avoid prejudice,” Valley Nat. Bank v. Spitzer , 31 Misc. 3d 1232(A)

(Kings Cnty. 2011) (citing Robert Stigwood Org., Inc. v. Devon Co., 44 N.Y.2d 922, 923

(1978)); see also, e.g., In re SSL Int’l, PLC , 44 A.D.3d 429, 430 (1st Dep’t 2007) (party seeking

to stay arbitration bears the “burden of showing sufficient facts to establish justification for the

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stay”); Gov’t Employees Ins. Co. v. Arciello, 129 A.D.3d 1083, 1084 (2d Dep’t 2015) (similar).

The question “whether a case is ‘proper’ for a stay is at the court’s discretion,” Nezry v. Haven

Ave. Owner LLC , 28 Misc. 3d 1226(A) (N.Y. Cnty. 2010), but the court “must consider all

factors when determining whether to grant a stay, including any potential prejudice to a party,”

Wallace v. Merrill Lynch Capital Servs., Inc., 12 Misc. 3d 1153(A) (N.Y. Cnty. 2006); see also,

e.g., Alter v. Oppenheimer & Co. Inc., 8 Misc. 3d 1008(A) (N.Y. Cnty. 2005) (stay determination

“involves a weighing of the equities”).

MASN and the Orioles fail to justify their request for a stay. At the outset, since it is

clear that the rights-fees dispute is subject to RSDC arbitration, the effect of granting a stay

would be to enjoin a properly demanded arbitral proceeding. Public policy, both state and

federal, weighs heavily against such a result. As the Court of Appeals has repeatedly explained,

arbitration serves the valuable goals of “conserving the time and resources of the courts and the

contracting parties,” Nationwide Gen. Ins. Co. v. Inv’rs Ins. Co. of Am., 37 N.Y.2d 91, 95 (1975),

and is therefore “a favored method of dispute resolution in New York,” Bd. of Educ. of

Bloomfield Cent. Sch. Dist. v. Christa Const., Inc., 80 N.Y.2d 1031, 1032 (1992). Federal law,

embodied in the FAA, is in accord: “it is difficult to overstate the strong federal policy in favor

of arbitration.” Arciniaga v. Gen. Motors Corp., 460 F.3d 231, 234 (2d Cir. 2006); see also, e.g.,

Benihana, Inc. v. Benihana of Tokyo, LLC , 784 F.3d 887, 901 (2d Cir. 2015) (both federal and

New York law “favor[] and encourage[] arbitration”).

These strong public policies require giving prompt and predictable effect to clear

arbitration agreements. Thus, “the public interest is served by enforcing parties’ agreements to

arbitrate according to their terms.” Leong v. Goldman Sachs Grp. Inc., 2016 WL 1736164, at *3

(S.D.N.Y. May 2, 2016) (citing E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 289 (2002)). “A

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A.D.3d at 695 (“speculative” injury could not justify injunction staying arbitration); Sardanis v.

Sumitomo Corp., 279 A.D.2d 225, 231 (1st Dep’t 2001) (speculative outcome in related

proceeding did not justify stay). Specifically, unless the Appellate Division reverses and orders

the parties to arbitrate outside the RSDC, there is no possible gain to be had from delaying

arbitration. But as this Court explained (Decision and Order at *13 n.21), New York law does

not permit a court to re-write an arbitration agreement. MASN and the Orioles offer no reason to

think that the Appellate Division would conclude otherwise. “[T]he appeal is meritless,”

Herbert v. City of New York , 126 A.D.2d 404, 407 (1st Dep’t 1987), and the motion for a stay

pending its resolution should be denied—regardless of the cross-motion’s invocation of CPLR §

2201 rather than § 5519(c). Cf. Da Silva, 76 N.Y.2d at 443 n.4 (“the court considering the stay

application may consider the merits of the appeal”).3

MASN and the Orioles offer no new or meritorious argument that this Court committed

reversible error in declining to impose a new arbitration forum—nor could they, given that “an

agreement to arbitrate before a particular arbitrator may not be disturbed , unless the agreement

is subject to attack on general contract principles.” Aviall, Inc. v. Ryder Sys., Inc., 110 F.3d 892,

895 (2d Cir. 1997) (emphasis added). MASN and the Orioles do not even attempt to show that

the 2005 Telecast Agreement is in any way “subject to attack on general contract principles,” but

instead merely recycle (MASN Br. 17-18) the decades-old Morris and Erving cases, of which

this Court is already aware. See Morris v. N.Y. Football Giants, Inc., 575 N.Y.S.2d 1013, 1014

(N.Y. Cnty. 1991); Erving v. Virginia Squires Basketball Club, 349 F. Supp. 716, 719 (E.D.N.Y.

3 MASN and the Orioles imply (MASN Br. 17) that consideration of the merits of the appeal isforbidden where a stay is sought under CPLR § 2201, but they cite no case so holding. Andhere, the purported gains to be obtained from the stay are entirely dependent on the outcome ofthe appeals, so the appeals’ merits are necessarily relevant to the Court’s ruling.

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1972). Those decisions are not binding on (or likely to be persuasive to) the First Department,

and are in any event wholly inapposite. For one thing, both cases involved agreements calling

for the league commissioner himself to act as a neutral arbitrator; the courts ordered remand to

different arbitrators because the commissioner in each case was too biased to serve that role. See

Morris, 575 N.Y.S.2d at 1017 (NFL Commissioner could not arbitrate between players and clubs

because he would favor the clubs); Erving , 349 F. Supp. at 719 (NBA Commissioner could not

arbitrate because he had a close direct relationship with one of the parties). Here, by contrast, the

RSDC (not MLB or the Commissioner) will arbitrate the dispute, and MASN and the Orioles

identify no basis to expect that the First Department will conclude that purported bias among the

RSDC’s members could foreclose that tribunal as an arbitral forum.4 To the contrary, the

Nationals have already cured the only ground of evident partiality that this Court identified.

Moreover, Morris and Erving turned on the necessity of reforming of the arbitration

contracts, “because an intervening event subverted the parties’ selection of a neutral arbitrator.”

Aviall, Inc. v. Ryder Sys., Inc., 913 F. Supp. 826, 834 (S.D.N.Y. 1996), aff’d , 110 F.3d 892 (2d

Cir. 1997).5 Reformation is an “extraordinary remedy” under New York law, 16 N.Y. JUR . 2D

CANCELLATION OF I NSTRUMENTS § 56, available only on an unambiguous showing, by “clear,

positive and convincing evidence,” that the parties meant to make a contract other than the one

memorialized in their writing, Warberg Opportunistic Trading Fund, L.P. v. GeoResources, Inc.,

112 A.D.3d 78, 85-86 (1st Dep’t 2013); see also, e.g., Chimart Assocs. v. Paul , 66 N.Y.2d 570,

574 (1986). MASN and the Orioles have never made and could never make such a showing with

4 Nor indeed has there been any suggestion that MLB itself is biased in favor of anything otherthan confirmation of an arbitral award issued under its auspices. See supra, at 9-10.

5 See also Aviall , 110 F.3d at 896 (decisions such as Erving merely “manifest the FAA’sdirective that an agreement to arbitrate shall not be enforced when it would be invalid undergeneral contract principles”).

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respect to the 2005 Telecast Agreement. There is no evidence that the parties intended to submit

rights-fees disputes to any forum other than the RSDC. The parties were entitled to select such

an inside-Baseball arbitration tribunal—and, having done so, MASN and the Orioles “can ask for

no more impartiality than inheres in the method they have chosen.” Nat’l Football League

Mgmt. Council , 2016 WL 1619883, at *17 (citing Williams v. Nat’l Football League, 582 F.3d

863, 885 (8th Cir. 2009); Winfrey v. Simmons Foods, Inc., 495 F.3d 549, 551 (8th Cir. 2007));

see also, e.g., Merit Ins. Co. v. Leatherby Ins. Co., 714 F.2d 673, 679 (7th Cir. 1983) (Posner, J.)

(similar; industry arbitrator is permitted to “be precommitted to a particular substantive

position”); Nat’l Hockey League Players’ Ass’n v. Bettman, 1994 WL 738835, at *13, *18

(S.D.N.Y. Nov. 9, 1994) (similar; distinguishing Morris and Erving ); Yonkers Contracting , 87

N.Y.2d at 929 (similar; New York law); Piller , 135 A.D.3d at 768 (similar).

Finally, that the Nationals and MLB filed notices of cross-appeal provides no basis to

decline to decide the motion to compel arbitration. Neither cross-appeal has been perfected, and

they may yet be withdrawn. Moreover, as the Nationals explained (Nationals Br. 3-4 n.3), the

First Department need not reach the Nationals’ cross-appeal except in the unlikely event it rules

that a finding of supposed bias requires appointment of an arbitrator other than the RSDC.

MASN and the Orioles contend (MASN Br. 16) that this position “makes little sense,” but it is in

fact quite clear: The Nationals desire to re-arbitrate in the RSDC as per the 2005 Telecast

Agreement, and intend to challenge this Court’s finding of evident partiality only if the Appellate

Division first holds that the remedy for such a finding must be to order arbitration in a different

forum. Because the First Department is unlikely to so hold in the face of controlling, contrary

New York and federal law, it is unlikely even to consider the Nationals’ cross-appeal. In any

event, the cross-appeals could not justify a stay for the same reasons that MASN’s and the

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Orioles’ appeals cannot do so: the stay is contrary to public policy ( supra, at 12-13) and would

significantly harm the Nationals (infra, at 18-25), but would neither benefit judicial economy nor

avert any legally substantial burden. And any grounds offered by MASN and the Orioles for

granting a stay are speculative and contingent. The Court thus should deny a stay and proceed to

grant the Nationals’ motion for an order compelling a new RSDC arbitration.

B. Further Delay Will Significantly Prejudice The

Nationals And Unfairly Benefit The Orioles.

MASN’s and the Orioles’ cross-motion for a stay also should be rejected for the

additional reason that the relief they have requested would produce extraordinarily inequitable

results. Further delay in proceedings will mean further delay in the Nationals’ receipt of the fair-

market-value telecast-rights fees to which they are entitled under the 2005 Telecast Agreement,

negatively impacting the Nationals’ ability to compete for free-agent players, to complete

stadium-improvement projects, and otherwise to run a successful baseball Club. Cohen Aff.

(Dkt. 683) ¶ 11; Cohen Reply Aff. ¶¶ 4-7. Conversely, MASN’s retention of the difference

between its unilaterally-calculated, “Bortz method” fees and the market-value fees to which the

Nationals are entitled provides a massive windfall to the Orioles by inflating MASN’s profits—

to which the Orioles are entitled to a supermajority share. And these inequities will be

exacerbated if MASN and the Orioles can continue to refuse to arbitrate before the RSDC,

because the time has already arrived to determine the rights fees to be paid the Nationals for the

next five-year period, beginning in 2017. Assuming (reasonably) that MASN and the Nationals

will again dispute the amount of rights fees to be paid over that period, the 2005 Telecast

Agreement again calls for such a dispute to be resolved by arbitration before the RSDC.

As the Nationals have explained, even accounting for the $25 million advance from MLB

to the Nationals in 2013, MASN’s unilateral decision to pay the Nationals rights fees for the

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2012-2016 period according to the “Bortz-style” formula that the Orioles advanced in the first

arbitration (but which the RSDC rejected as inconsistent with its standard methodology) has to

date deprived the Nationals of at least $40 million that they would be due under a fair market

valuation of their rights, with an additional shortfall of at least $20 million by the end of 2016.

See Cohen Aff. ¶¶ 8-10; Cohen Reply Aff. ¶ 3.6 Being deprived of these revenues has had

serious negative impacts on the Nationals, and will continue to do so in the future. See Cohen

Aff. at ¶¶ 11-12; Cohen Reply Aff. ¶¶ 4-13. Lacking these revenues, the Nationals have been

forced to fund payroll and other expenses from their reserves, and further delay could require the

Nationals to seek new financing—entailing additional unrecoverable costs. Cohen Aff. ¶ 11;

Cohen Reply Aff. ¶ 6. MASN’s contention that a baseball franchise with large annual salary and

other operational expenses is “not financially harmed” when a direct competitor, year after year,

withholds upwards of $20 million in annual cash payments is not credible.

MASN tries to sidestep this obvious and ongoing injury by arguing (MASN Br. 18-20)

that the rights fees it has unilaterally elected to pay the Nationals represent the “full amount of

telecast rights fees due” under Section 2.J.3 of the 2005 Telecast Agreement. But the contract

provides that the “fair market value” of the Nationals’ telecast rights fees “ shall be determined

by the [RSDC] using the RSDC’s established methodology for all other related party telecast

agreements in the industry” (Dkt. 204, at 8 (emphasis added)), and MASN entirely ignores that

this Court’s Decision and Order (at *5-6) already rejected MASN’s arguments that the 2005

6 MASN cites (MASN Br. 20-21) MLB’s $25 million advance to the Nationals in August 2013to argue that the Nationals cannot claim financial injury, but that payment was only intended tocover the difference between what MASN paid and what the RSDC was expected to award for2012-2013, less certain adjustments. See Dkt. 452; 10/20/14 Cohen Aff. (Dkt. 328) ¶ 22. Thegap has not been filled even on a temporary basis with respect the remaining three years to becovered by the RSDC arbitration now at issue, leaving the Nationals at least $60 million short ofthe fair market value of their rights fees through 2016.

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Telecast Agreement required the RSDC to adopt MASN’s valuation of the Nationals’ telecast

rights based on MASN’s own version of the Bortz methodology.

Moreover, it is implausible to think that the RSDC would adopt MASN’s version of the

Bortz methodology in a new arbitration. This is not because the RSDC is in any way biased—its

original award was far closer to MASN’s proposal than to the Nationals’ proposal.7 Rather, as

the RSDC’s original award found (Dkt. 330, at 4-8), MASN’s version of the Bortz methodology

is not consistent with the RSDC’s established methodology, because it wrongly focuses on

protecting MASN’s desired 20% profit margin rather than on ascertaining the true market value

of the Nationals’ telecast rights. And MASN’s continued assertion that the Nationals’ rights fees

are to be determined based on a “Bortz” method guaranteeing a 20% profit margin to MASN

also cannot be reconciled with (among other things) the 2006 Congressional testimony of

Orioles’ owner Peter Angelos, offered shortly after the 2005 Telecast Agreement had been

entered. At that time, Mr. Angelos testified that the Nationals’ rights fees would be determined

using a comparative approach like the one that the RSDC ultimately adopted:

If at any time the Nationals would be dissatisfied with the fee structure, the rightsfee structure, they have a right to complain to Major League Baseball and demandthat a survey be made to guarantee that fair market value payments are beingmade for the rights fees for the rights to their games.

Dkt. 338, at 42 (emphasis added). Recent developments show that the Nationals’ rights are

worth more than what the RSDC originally awarded. See First Bevilacqua Aff. (Dkt. 349) ¶¶ 49-

7 The RSDC Award, with an average annual value over the 2012-2016 period of $60 million, ison average only about $20 million more per year than the amount sought by MASN, but is about$58 million less per year than the amount advocated by the Nationals (and in total, about $290million less than what the Nationals sought for the full five-year period). Cohen Reply Aff. ¶ 14.

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52; Second Bevilacqua Aff. (Dkt. 536) at ¶¶ 50-54; Third Bevilacqua Aff. ¶ 15 n.5.8

MASN also wrongly argues that the Nationals are suffering no financial harm,

purportedly because MASN has been paying the Nationals rights fees that fall near the “mid-

point” of telecast rights fees paid to other MLB Clubs (Haley Aff. ¶ 6 & Ex. 1; MASN Br. 19-

20). But the Nationals are entitled under the Telecast Agreement to the market value of their

own telecast rights, irrespective of where that amount falls relative to amounts received by other

Clubs. The Nationals occupy MLB’s third-largest media market (Designated Market Area, or

“DMA”) when the Nationals’ and Orioles’ unified Television Territory is taken into

consideration, as required by the Telecast Agreement (Dkt. 204, at 1; id. at 7 (§ 2.F)). The fact

that the Nationals are being paid rights fees falling near the mid-point for all thirty MLB Clubs

thus confirms that the Nationals are being substantially underpaid relative to the true market

value of the Nationals’ telecast rights. Third Bevilacqua Aff. ¶ 8.

Contrary to MASN’s and the Orioles’ suggestion (MASN Br. 20), the Nationals are not

made whole by their receipt of profit distributions from MASN. First, the Telecast Agreement

entitles the Nationals to fair-market-value rights fees in addition to any profits distributions that

may be paid. See Dkt. 204, at 7-9 (§§ 2.I, 2.J, 2.L, 2.N); Third Bevilacqua Aff. ¶ 11. In any

event, even accounting for MASN’s distributions, the Nationals are receiving tens of millions of

dollars less than what the Nationals would receive under a fair-market valuation of their rights

fees for the 2012-2016 period. Third Bevilacqua Aff. ¶ 15. And the Nationals receive by far the

8 MASN and the Orioles contend (MASN Br. 19) that the fees paid to the Nationals from 2005-2011 were not below market value, but the assertion is not credible. For instance, Comcastrepresented in proceedings before the Federal Communications Commission in 2005 that itwould be willing to pay more for the Nationals’ telecast rights than what MASN paid during the2005-2011 period. See First Bevilacqua Aff. ¶¶ 27-32; see also Second Bevilacqua Aff. ¶¶ 18-23 (noting that the Nationals’ 2005-2011 rights fees were substantially below those received byClubs located in similar markets); Third Bevilacqua Aff. ¶ 13 n.4.

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smallest profit distributions of their peer Clubs, belying MASN’s claims that the Nationals’ right

to a minority profit share gives them a competitive advantage. Id. ¶ 10.9 The Nationals’ profit

share also is dwarfed by what the Orioles took home in MASN profit distributions in 2015 (about

$50 million, compared to the $9.6 million that MASN says was paid to the Nationals), and by

what MASN has paid the Orioles in profit shares since 2012 ($200 million, compared to the

Nationals’ $34 million). Id. ¶ 12; Cohen Reply Aff. ¶ 11. In any event, whether or not other

Clubs receive similar profit distributions ( see MASN Br. 20 n.12), the question whether the

Nationals are harmed by MASN’s conduct is not determined by comparison to other Clubs, but

by considering what would be possible for the Nationals with receipt of the RSDC-determined

market-value rights fees to which they are entitled.

The Nationals’ franchise value, payroll, and on-field success ( see MASN Br. 22-23) do

not refute the conclusion that MASN’s failure to pay market-value fees causes the Nationals

harm: the indisputable fact is that the Nationals could be doing even better if the team were paid

fair market value for its telecast rights. MASN and the Orioles make the irrelevant assertion (id.

at 23) that the “real” reason the Nationals have failed to sign certain free-agent players is that the

team is somehow mismanaged—but the argument is in obvious contradiction of MASN’s and

the Orioles’ own reliance (id. at 22-23) on the Nationals’ success: MASN cannot legitimately

maintain simultaneously that the Nationals have been hugely successful (to argue the Nationals

don’t need additional rights fee payments any time soon) but also that the Nationals have been

poorly run (to suggest that their failure to make certain signings was the result of something

other than financial constraints). In any event, MASN’s arguments about why certain players

9 Further, the higher profit distributions other peer Clubs receive from their RSNs are inaddition to market-value payments for those Clubs’ telecast rights. Third Bevilacqua Aff. ¶ 10.

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each dollar not paid in rights fees, while the Nationals get 17 cents. Thus, by shifting the

economics away from rights fees (which must be shared equally) and into profit distributions

(which get divided 83 to 17), the Orioles benefit at the Nationals’ expense. The bottom line is

that by year-end 2016, by paying out below-market rights fees, rather than the higher, market-

rate fees to which the Nationals are entitled under the 2005 Telecast Agreement, MASN will

have effectively shifted some $70 million from the Nationals to the Orioles. Id .10 The Orioles’

incentive to delay payment for as long as possible is obvious. And the harm to the Nationals

directly corresponds to the Orioles’ gain.

Indeed, reflecting their incentive to delay, MASN and the Orioles to date still have not

perfected their appeals or indicated that they intend to prosecute them promptly. And even when

the appeals are perfected, it could take a year or more for the Appellate Division to render a

decision. If the Court were to grant a stay, the Nationals would be forced to labor under below-

market rights fees as the appellate process plays out. Nor has MASN done anything to protect

the Nationals’ financial interests—as by, for instance, placing into escrow funds representing the

difference between the Nationals’ demand and MASN’s unilaterally-determined payments.

MASN has previously claimed that it has insufficient funds to pay the Nationals’ demands ( see

Tr. Oral Arg. (Aug 8, 2014), Dkt. 170, at 24:7-26:19; see also 7/25/2014 Haley Aff. (Dkt. 55) ¶

49), though in fact it had simply distributed all its funds to the Orioles and the Nationals via

profit-sharing (Dkt. 170, at 42:12-45:7). Delay in commencing the new RSDC arbitration will

10 Put differently, by unilaterally deciding to pay the Nationals only rights fees as calculatedusing the Orioles’ “Bortz” method, MASN will have paid the Orioles at least an estimated $445million in combined rights fees and equity distributions between 2012-2016, which is aboutdouble the combined rights fees and equity distributions that MASN will have paid to the Nationals for the same 2012-2016 period. Third Bevilacqua Aff. ¶ 15; Cohen Reply Aff. ¶ 11.

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give MASN, controlled by the Orioles, further opportunity to divest itself of assets needed to pay

an eventual judgment, creating additional burden on the Nationals when they seek to collect.

CONCLUSION

The Court should issue forthwith an order compelling MASN and the Orioles to comply

with the Court’s Decision and Order, by arbitrating the parties’ rights-fees dispute for 2012-2016

before the RSDC, subject to the Nationals being represented by counsel that does not

concurrently represent MLB, the RSDC members or their Clubs.

Dated: May 27, 2016 New York, New York

Respectfully submitted,

QUINN EMANUEL URQUHART& SULLIVAN, LLP

By: /s/ Stephen R. Neuwirth______ Stephen R. NeuwirthSanford I. WeisburstJulia J. Peck Cleland B. Welton II51 Madison Avenue New York, New York 10010212-849-7000

Attorneys for Plaintiff The Washington Nationals Baseball Club, LLC

washington nationals' reply in support of its motion to compel arbitration

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