SUPREME COURT OF THE STATE OF NEW YORKCOUNTY 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 COMMISSIONER OF BASEBALL;and THE COMMISSIONER OF MAJOR LEAGUEBASEBALL,

Respondents,-and-

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

Nominal Respondents.

Index No. 652044/2014(IAS Part 41)

(Motion Sequence No. 020)

MEMORANDUM OF LAW INOPPOSITION TO MOTION TO COMPEL ARBITRATION

AND IN SUPPORT OF CROSS-MOTION FOR STAY

CHADBOURNE & PARKE LLP1301 Avenue of the AmericasNew York, New York 10019(212) 408-5100

Attorneys for Petitioner

Thomas J. HallRachel W. ThornCaroline Pignatelli

Of Counsel

FILED: NEW YORK COUNTY CLERK 05/07/2016 12:00 AM INDEX NO. 652044/2014

NYSCEF DOC. NO. 738 RECEIVED NYSCEF: 05/07/2016

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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, LLC’s (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 Court’s November 4, 2015 Decision and Order (the “Decision and Order”)

by arbitrating before Major League Baseball’s (“MLB”) Revenue Sharing Definitions

Committee (the “RSDC”), and in support of MASN’s 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 Court’s 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 Court’s 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 setforth 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 May6, 2016 (“Hall Aff.”) and the Affidavit of Michael J. Haley in Opposition to Motion to Compel and in Support ofCross-Motion, sworn to May 5, 2016 (“Haley Aff.”) are submitted in support of this memorandum of law and arereferred to herein. For the convenience of the Court, documents previously filed in this action have been re-attachedas 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 WashingtonNationals Baseball Club, LLC in Support of Motion for an Order Compelling Petitioner TCR Sports BroadcastingHolding, LLP (d/b/a “MASN”) and Nominal Respondents The Baltimore Orioles and the Baltimore Orioles LimitedPartnership to Comply with this Court’s November 4, 2014 Opinion and Order by Arbitrating before Major LeagueBaseball’s Revenue Sharing Definitions Committee, dated January 21, 2016, Dkt. No. 671 (“Mot.”); Affirmation ofStephen R. Neuwirth, dated January 21, 2016, Dkt. No. 672 (“Neuwirth Aff.”); Affidavit of Ed Cohen, sworn toJanuary 20, 2016, Dkt. No. 683 (“Cohen Aff.”).

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Division is reviewing a claim by the Nationals and MLB that the RSDC’s 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 MLB’s vigorous advocacy in favor of the now-vacated RSDC

Award; MLB’s public pronouncements in support of that Award, which evidence a

predetermination; MLB’s $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.

3MASN 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 ofMLB’s and the Commissioner’s public advocacy and support of the now-vacated RSDC Award. Not only did MLBstrenuously advocate for confirmation of the Award during the vacatur proceeding in its papers and oral arguments,but MLB’s appeal seeks reinstatement of the Award. Nor can any future RSDC member help but be aware of theCommissioner’s public statements evidencing the predetermined outcome that “sooner or later” MASN will haveto 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 MLB’s former media

rights consultant, Bortz Media & Sports Group, Inc. (“Bortz”). In doing so, Bortz strictly

adhered to Section 2.J.3 of the Settlement Agreement’s mandate to “[use] the RSDC’s

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 Club-

owned 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 (Commissioner’s 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.

4Unless otherwise noted, emphasis added throughout this brief.

5 As Mark Wyche, the managing partner of Bortz, previously attested, MLB retained Bortz to develop the RSDC’sestablished methodology for determining the fair market value of related party telecast rights fees and engaged Bortzon at least 19 occasions – both before and after the merits hearing in the RSDC arbitration – to apply itsmethodology 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 RSDC’s established methodology” and MLB consistently accepted theBortz-calculated telecast rights fees as being fair market value with MASN as the only exception. Id. ¶¶ 27-34. Inevery instance (except for MASN), Bortz conducted a profits margin analysis of the RSN’s actual revenues andexpenses in its particular market area and assumed at least a 20% industry-standard profit margin from the RSN’sbaseball programming. And in every instance (except for MASN), the RSDC and MLB accepted the Bortz telecastrights fees analysis, assumed at least a 20% industry-standard profit margin for “all other” related party RSNs in theindustry, 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 MASN’s 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 RSDC’s 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 years—including, 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 2012–2016 period remain in dispute. After all, it was the

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Nationals who literally ripped up MASN’s 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 MASN’s 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 MLB’s and the RSDC’s “complete inaction”

in the face of MASN’s and BOLP’s “well-documented concerns” regarding Proskauer’s

representation of the Nationals. Id. In the Court’s 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 MASN’s 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. MASN’s and the Nominal Respondents’ Appeals and the Nationals’ and MLB’sCross-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 Pre-

Argument Statement) at 6, Ex. 5 (MLB Pre-Argument Statement) at 5. Thus, all parties seek on

appeal to reverse significant aspects of this Court’s Decision and Order. The Nationals and

6MASN 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. Mostnotably, MLB advanced the Nationals $25 million during the pendency of the first arbitration, which MLB canrecover only if (1) a new arbitration rejects MASN’s view of the fair market value of the Nationals’ telecast rightsfees for the years 2012 and 2013 (which MASN has already paid to the Nationals), and awards the Nationalssignificantly higher rights fees; (2) MASN is sold. See Dkt. No. 473 (1/12/15 Rifkin Aff.) ¶¶ 39-55. None ofMASN or the Nominal Respondents are parties to that agreement, which creates a clear conflict of interest for MLBin relation to a future arbitration, especially in light of what discovery has revealed about MLB’s extensiveinvolvement in – and control over – the RSDC proceeding (including the involvement of MLB executives in tribunaldeliberations and drafting the Award). In addition, MLB strenuously opposed vacatur and repeatedly endorsed thenow-vacated Award in court filings, affidavits and arguments before the Court, punctuated by MLB CommissionerManfred’s 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 RSDC’s 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

7 In January 2016, MASN began the process of perfecting its appeal, including working with all parties to reachagreement on the content of the voluminous Joint Record on Appeal and to resolve errors in the transcripts to beincluded in that Record. That process was delayed pending the parties’ mediation efforts, and has now resumedsince 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 – MLB’s

letter of December 7, 2015, the Nationals’ December 8, 2015 response or Mr. Shenker’s 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.

8 On February 9, 2016, the parties participated in an in-person status conference with Justice Marks’ Principal LawClerk, where the Nationals’ motion to compel was held in abeyance. At the Court’s encouragement, the partiesproceeded 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 BECAUSEIT IS BASELESS AND PREMATURE

The Nationals’ Motion to compel rests on a clear misinterpretation of the Court’s

Decision and Order. The Nationals contend that after vacating the prior arbitration award, the

Court’s 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 Court’s 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 ArbitrationAward is granted only to the extent that the June 30, 2014 RSDC Award is herebyvacated, and is otherwise denied; and it is further ORDERED that the Cross-Motion 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 Court’s mandate. Footnote 21 reads, in relevant part:

The Court emphasizes that because it is ultimately the Nationals’ choice ofcounsel that created the conflict, the parties may wish to meet and confer as towhether the Nationals are willing and able to retain counsel who do notconcurrently represent MLB or the individual arbitrators and their clubs, andthereby return to arbitration by the RSDC, however currently constituted,pursuant to the parties’ Agreement. Agreement ¶ 2.J.3. If the current conflictremains, the parties might meet and confer regarding whether they can agree to adifferent 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, 594–95 (2d Dep’t 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 panelist’s Club,

family members or business interests. The Nationals’ assertion simply reflects, once again, the

9 In addition, the Nationals’ motion suffers from a patent inconsistency. The Nationals construe the Court’slanguage that the parties “may wish to meet and confer” in the first sentence of the footnote as an “order.” Mot. at13. Yet they also seek to characterize nearly identical language just one sentence later – that the parties “‘mightmeet and confer regarding whether they can agree to a different neutral dispute resolution process’” as a merejudicial “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 theFederal 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 MLB’s 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 STAYTHE NATIONALS’ MOTION PENDING THE OUTCOME OF THE APPEALS

This Court should exercise its broad discretion under CPLR § 2201 to grant MASN’s

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 AvoidWasted 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 Dep’t 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 Dep’t 2007) (internal quotations omitted); Asher, 307

A.D.2d at 211 (same); Minton v. Minton, 277 A.D.2d 103, 103 (1st Dep’t 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 Dep’t 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 Dep’t 2012); Trinity Prods. Inc. v. Burgess Steel LLC, 18 A.D.3d 318, 318 (1st Dep’t

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).

MASN’s 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 MLB’s cross-appeals, in turn, seek to reverse the Court’s vacatur of

the RSDC Award. See Hall Aff. Exs. 4-5 (Nationals and MLB Notices of Appeal and Pre-

Argument 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 Division’s 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 *3–4 (Bronx Cnty.

April 1, 2013). If the Appellate Division rules in MASN’s and the Nominal Respondents’ favor,

the rehearing will not be conducted by the RSDC, and if the Appellate Division rules in the

Nationals’ and MLB’s 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 Court’s 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 party’s position on appeal. 10

MASN has not cross-moved for a stay pending appeal under CPLR § 5519(c) because the

Court’s 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 courtsconsider. Courts are free to consider any relevant factor. Bread & Butter LLC v. Certain Underwriters at Lloyd’sLondon, No. 005379/08, 2009 WL 2984776, at *5 (Nassau Cnty. Sept. 1, 2009). Further, it is well established thatgranting a stay under Section 5519 is entirely within the court’s discretion, and that “[u]nder ordinary circumstancesif the rights of the parties are not jeopardized to any extent or if suitable terms can be imposed to protect the rights ofthe parties, a stay will be granted as such action constitutes the exercise of the sound discretion of the court.” SeeApplication 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 plaintiff’s 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), aff’d, 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 Commissioner’s 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 Club’s 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.”

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 RSDC’s 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, MLB’s long-time

consultant who developed the RSDC’s established methodology and applied it consistently on

MLB’s and RSDC’s behalf over 19 times. Bortz used “the RSDC’s 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 “below-market” telecast rights fees for the first seven years (2005-2012), and that after this period expired, the RSDC wouldcorrect that asserted inadequacy going forward. Mr. Cohen’s understandings, however obtained, are factuallyinaccurate and inconsistent with the express terms of the Settlement Agreement. Not only did MLB propose theamounts of the telecast rights fees for this period and represent them to be at fair market value, those telecast rightsfees are empirically at fair market value. Dkt. No. 68 (8/12/14 Haley Aff.) ¶¶ 15-17; Dkt. No. 73 (8/11/14 WycheAff.) ¶¶ 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 MLB’s 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

MASN’s 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 Nationals-

MLB agreement expressly referenced MASN’s 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

12MLB’s 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 anyprofits distributions. Haley Aff. ¶ 6. If anything, the Nationals’ financial benefits and asset interest flowing fromMASN 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 Nationals”—that is, any amounts above what MASN had already

paid to the Nationals— “will be made first to the Commissioner’s 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 RSDC’s 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 MLB’s 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 MASN’s 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 ordecrease 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 similarmoney, or were not given qualifying offers because of their poor performance or injuries. Hall Aff. ¶ 11, Exs. 16-18.

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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 they’ve 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 MLB-

controlled 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 RSDC’s 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 Dep’t 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 MASN’s

cross-motion to stay.

Dated: May 6, 2016

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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 Petitioner’s cross-motion to stay and this memorandum of law in support of

Petitioner’s opposition to motion to compel arbitration and in support of cross-motion to stay.

Respectfully submitted,

SIDLEY AUSTIN LLP

By s/ Benjamin R. NaginBenjamin R. Nagin787 Seventh AvenueNew York, New York 10019(212) 839-5300bnagin@sidley.com

Carter G. Phillips, pro hac viceKwaku A. Akowuah1501 K Street NWWashington, D.C. 20005

Counsel for Nominal Respondents-AppellantsBaltimore Orioles Baseball Club andBaltimore Orioles Limited Partnership

Respectfully submitted,

CHADBOURNE & PARKE LLP

By s/ Thomas J. HallThomas J. HallRachel W. ThornCaroline Pignatelli

1301 Avenue of the AmericasNew York, New York 10019(212) 408-5100thall@chadbourne.com

Attorneys for Petitioner TCR SportsBroadcasting Holding, LLP

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Arnold Weiner, pro hac viceAron U. Raskas, pro hac viceRIFKIN, WEINER, LIVINGSTONLEVITAN & SILVER, LLC2002 Clipper Park Road, Suite 108Baltimore, Maryland 21211

Counsel for Nominal Respondent-AppellantBaltimore Orioles Limited Partnership,in its capacity as managing partner of TCRSports Broadcasting Holding, LLP

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