Washington's Motion to Compel Arbitration

8/17/2019 Washington's 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.)

MEMORANDUM OF RESPONDENT THE WASHINGTON NATIONALS BASEBALL

CLUB, LLC, IN SUPPORT OF MOTION FOR AN ORDER COMPELLING

PETITIONER TCR SPORTS BROADCASTING HOLDING, LLP (D/B/A “MASN”) AND

NOMINAL RESPONDENTS THE BALTIMORE ORIOLES AND BALTIMORE

ORIOLES LIMITED PARTNERSHIP TO COMPLY WITH THIS COURT’S

NOVEMBER 4, 2014 OPINION AND ORDER BY ARBITRATING BEFORE MAJOR

LEAGUE BASEBALL’S REVENUE SHARING DEFINITIONS COMMITTEE

QUINN EMANUEL URQUHART& SULLIVAN LLP

51 Madison Avenue New York, New York 10010212-849-7000 (voice)212-849-7100 (fax)

Attorneys for Respondent

Washington Nationals Baseball Club, LLC

January 21, 2016

ILED: NEW YORK COUNTY CLERK 01/21/2016 07:45 PM INDEX NO. 652044/

YSCEF DOC. NO. 671 RECEIVED NYSCEF: 01/21/


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TABLE OF CONTENTS

Page

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

BACKGROUND .............................................................................................................................7

The Decision and Order to Vacate RSDC Arbitration Award.............................................7

Notwithstanding the Court’s Decision and Order, MASN and NominalRespondents Refuse to Arbitrate Before the RSDC ................................................8

ARGUMENT.................................................................................................................................11

I. MASN AND NOMINAL RESPONDENTS SHOULD BE REQUIRED TOCOMPLY WITH THE DECISION AND ORDER, AND THUS TOARBITRATE BEFORE THE RSDC ................................................................................11

A. The Nationals Have Selected New Counsel and Therefore the ArbitrationMust Proceed Before the RSDC under the Plain Terms of the Decision andOrder. .....................................................................................................................11

B. The Prerequisites for an Order Compelling Arbitration Are Satisfied. .................12

1. The Parties’ Agreement .............................................................................13

2. Refusal To Arbitrate Before The RSDC....................................................13

3. Prejudice To The Nationals From Continued Delay..................................14

II. THE RECENTLY FILED NOTICES OF APPEAL ARE NOT A BASIS FORMASN AND NOMINAL RESPONDENTS UNILATERALLY TO PREVENT

ARBITRATION BEFORE THE RSDC............................................................................17

III. THIS COURT HAS JURISDICTION TO ORDER THE REQUESTED RELIEF ..........20

CONCLUSION..............................................................................................................................21


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TABLE OF AUTHORITIES

Page

Cases

Am. Ins. Co. v. Messinger ,43 N.Y.2d 184 (1977) ..............................................................................................................20

Application of Mott ,123 N.Y.S.2d 603 (Sup. Ct. Oswego Cnty. 1953)...............................................................4, 18

Ascentium Capital LLC v. Northern Capital Associates XIII, L.P.,2014 WL 1650960 (Sup. Ct., N.Y. Cnty. Apr. 14, 2014) .......................................................21

Aviall, Inc. v. Ryder Sys., Inc.,110 F.3d 892 (2d Cir. 1997).....................................................................................................19

Bos. Ins. Co. v. Carpinter & Baker, Inc.,27 A.D.2d 534 (1st Dep’t 1966) ..............................................................................................19

Bulkley v. Whiting Mfg. Co.,136 A.D. 479 (1st Dep’t 1910) ................................................................................................21

Carboni v. Lake,562 F. Supp. 2d 585 (S.D.N.Y. 2008)......................................................................................20

Catalyst Waste-to-Energy Corp. of Long Beach v. Long Beach,164 A.D.2d 817 (1st Dep’t 1990) ............................................................................................18

Chimart Assocs. v. Paul ,66 N.Y.2d 570 (1986) ..............................................................................................................19

Crystal Pool AS v. Trefin Tankers Ltd.,2014 WL 1883506 (S.D.N.Y. May 9, 2014) ...........................................................................12

Da Silva v. Musso,76 N.Y.2d 436 (1990) ..........................................................................................................4, 18

Delta Mine Holding Co. v. AFC Coal Props., Inc.,280 F.3d 815 (8th Cir. 2001) ...................................................................................................20

Ecoline, Inc. v. Local Union No. 12 of Int’l Ass’n of Heat & Frost Insulators & Asbestos Workers, AFL-CIO,271 F. App’x 70 (2d Cir. 2008) ..............................................................................................19

Erving v. Va. Squires Basketball Club,349 F. Supp. 719 (E.D.N.Y. 1972) ..........................................................................................19


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Fassl v. New York State Dep’t of Taxation & Fin.,159 A.D.2d 1029 (4th Dep’t 1990)..........................................................................................21

Fry v. Vill. of Tarrytown,671 N.Y.S.2d 633 (Sup. Ct., Westchester Cnty. 1998) ...........................................................21

Goldfinger v. Lisker ,68 N.Y.2d 225 (1986) ..............................................................................................................20

Hart v. Tri-State Consumer, Inc.,18 A.D.3d 610 (2d Dep’t 2005)...............................................................................................17

Herbert v. City of New York ,126 A.D.2d 404 (1st Dep’t 1987) ........................................................................................4, 18

Hooters of Am. Inc. v. Phillips,173 F.3d 933 (4th Cir. 1999) ...................................................................................................19

Kensington Ins. Co. v. James River Specialty Ins. Co.,997 N.Y.S.2d 407 (1st Dep’t 2014) .........................................................................................12

Kleinman v. Metropolitan Life Ins. Co.,298 N.Y. 217 (1948) ................................................................................................................21

LAIF X SPRL v. Axtel, S.A. de C.V.,390 F.3d 194 (2d Cir. 2004).....................................................................................................12

Morris v. N.Y. Football Giants, Inc.,575 N.Y.S.2d 1013 (Sup. Ct. N.Y. Cnty. 1991) ......................................................................19

Navy Yard Hous. Dev. Fund, Inc. v. Carr , No. 33936/96, 2002 WL 1174711 (N.Y. Civ. Ct. May 23, 2002) .......................................4, 18

Options on Shares, Inc. v. Edwards & Hanley,42 A.D.2d 932 (1st Dep’t 1973) ..............................................................................................18

PaineWebber Inc. v. Faragalli,61 F.3d 1063 (3d Cir. 1995).....................................................................................................12

Pitta v. Hotel Assoc. of N.Y.C., Inc.,

806 F.2d 419 (2d Cir. 1986).....................................................................................................18

Rospigliosi v. Abbate,31 A.D.3d 648 (2d Dep’t 2006)...............................................................................................20

Ruben v. Am. & Foreign Ins. Co.,185 A.D.2d 63 (4th Dep’t 1992) .............................................................................................21


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In re SSL Int’l, PLC ,44 A.D.3d 429 (1st Dep’t 2007) ..............................................................................................17

TCR Sports Broadcasting Holding, LLP v. WN Partner, LLC ,2015 WL 6746689 (Sup. Ct. N.Y. Cnty. Nov. 4, 2014) .................................................. passim

Telesat Canada v. Planetsky, Ltd.,2013 WL 592668 (S.D.N.Y. Feb. 15, 2013)............................................................................12

Walthour v. Pub. Serv. Interstate Transp. Co.,109 N.Y.S.2d 10 (Sup. Ct. Kings Co. 1951)............................................................................20

Warberg Opportunistic Trading Fund, L.P. v. GeoResources, Inc.,112 A.D.3d 78 (1st Dep’t 2013) ..............................................................................................19

Weisz v. Weisz ,975 N.Y.S.2d 627 (Sup. Ct. Kings Cnty. 2013).......................................................................17

Rules / Statutes

N.Y. CPLR § 5519.........................................................................................................................17

Other Authorities

10A Carmody-Wait N.Y Practice 2d § 70:246..............................................................................21

4 N.Y. Jur. 2d Appellate Review § 415 .........................................................................................21

16 N.Y. Jur. 2d Cancellation of Instruments § 56 .........................................................................19


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PRELIMINARY STATEMENT

Respondent The Washington Nationals (the “Nationals”) regret imposing upon this Court

to enforce the Court’s November 4, 2015 Decision and Order, TCR Sports Broadcasting

Holding, LLP v. WN Partner, LLC , 2015 WL 6746689, Doc. No. 639 (Sup. Ct. Nov. 4, 2014)

(the “Decision and Order”); see also Doc. No. 640 (notice of entry of the Decision and Order).

However, the disregard of the plain language of the Decision and Order by Petitioner TCR

Sports Broadcasting Holding, LLP (d/b/a Mid-Atlantic Sports Network) (“MASN”) and Nominal

Respondents,1 and the substantial prejudice the Nationals are suffering by delay of a new

arbitration before Major League Baseball’s Revenue Sharing Definitions Committee (“RSDC”),

have made this motion necessary.

As the Court will recall, the Decision and Order vacated an arbitration award dated June

30, 2014 (the “RSDC Award”) of the RSDC concerning the fair market value of the television

broadcast rights fees to be paid to the Nationals for the period 2012-2016. But as the Court will

also recall, the Decision and Order denied all of MASN’s and Nominal Respondents’ challenges

to the RSDC Award, except with respect to the Nationals’ representation by the Proskauer law

firm during the RSDC proceedings (which was the sole basis for vacatur of the RSDC Award).

The Decision and Order ruled that a new arbitration could be conducted before the RSDC if the

Nationals retained new counsel that (unlike Proskauer) does not concurrently represent Major

League Baseball (“MLB”) or the members of the RSDC panel or their clubs. Specifically, the

Decision and Order ruled: “The Court emphasizes that because it is ultimately the Nationals’

choice of counsel that created the conflict, the parties may wish to meet and confer as to whether

1 Nominal Respondents the Baltimore Orioles Baseball Club and Baltimore Orioles LimitedPartnership are referred to herein collectively as “Nominal Respondents” or the “Orioles.” TheOrioles own a super-majority stake in, and have full management control of, MASN.


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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, however

currently constituted, pursuant to the parties’ Agreement .” Decision and Order at *13 n. 21

(emphasis added). The Court explicitly rejected the request by MASN and the Nominal

Respondent for an order requiring any new arbitration to be held in a venue other than the

RSDC: this Court stated that “re-writing the parties’ Agreement [which calls for arbitration

before the RSDC] is outside of its authority.” Id. (emphasis added).

Submitting to the Court’s ruling, the Nationals informed MASN and Nominal

Respondents, by letter dated November 25, 2015, that the Nationals would forgo representation

by the Proskauer firm, and would retain new counsel that does not concurrently represent MLB

or the individual arbitrators or their clubs. See Affirmation of Stephen R. Neuwirth (January 21,

2016) (“Neuwirth Aff.”) at ¶ 11 and Ex. 1. In subsequent correspondence, the Nationals

explained that they had retained Quinn Emanuel Urquhart & Sullivan, LLP (“Quinn Emanuel”)

to replace Proskauer, and that Quinn Emanuel does not concurrently represent MLB or the

individual arbitrators or their clubs. Id. at ¶ 13 and Ex. 3.2

Unfortunately, notwithstanding this significant act by the Nationals to choose new

arbitration counsel, MASN and Nominal Respondents have repeatedly refused the Nationals’

requests to return to the RSDC for a new arbitration, instead insisting that any new arbitration

must take place before a panel other than the RSDC. See Id. at ¶¶ 12, 14, 15 and Exs. 2, 4, 5

(letter from MASN counsel dated November 30, 2015, and subsequent correspondence). MASN

2 The current members of the RSDC are Thomas Ricketts, owner of the Chicago Cubs (who didnot serve on the RSDC during the original proceeding in 2012), and Frank Coonelly, President ofthe Pittsburgh Pirates (who was a member of the RSDC in 2012). The third seat on the RSDC isvacant, but the Nationals understand that MLB will be filling that vacancy in the immediatefuture. See Affidavit of Ed Cohen (January 20, 2016) (“Cohen Aff.”) at ¶ 6.


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and the Orioles thus are purporting to grant themselves the non-RSDC arbitration forum that this

Court declined to Order based on the parties’ 2005 Telecast Agreement.

Following a recent telephone conference with the Court’s Principal Law Clerk, the

Nationals agreed to meet and confer with MASN and Nominal Respondents prior to filing this

motion. Based on the stated availability of counsel for MASN, the Orioles and BOLP, it was

determined to meet and confer on January 20, 2016, the earliest date that counsel for the Orioles

and BOLP had said during the telephone conference that they would be prepared or available to

meet. (The Nationals’ counsel had offered to meet earlier.) The Nationals came to that meet and

confer ready to listen to any proposal from MASN, the Orioles and BOLP, including in

particular relating to procedures that those parties might want to have in place for an RSDC

arbitration. At the end of the meet and confer, counsel for the Orioles requested that the

discussions during the meet and confer be treated as confidential, and therefore they will not be

reported here. Suffice it to say, however, that MASN and Nominal Respondents have

maintained their position that they will not return to arbitration before the RSDC,

notwithstanding this Court’s Decision and Order, which relied on the plain terms of the parties’

2005 Telecast Agreement.

Given that the purpose of the arbitration is to address the rights fees to be paid to the

Nationals for the period 2012-2016, there is no basis for delaying an arbitration that complies

with the conditions set forth in this Court’s Decision and Order. While MASN and the Nominal

Respondents have filed notices to appeal, neither MASN nor the Nominal Respondents has

sought any stay of proceedings in this Court pending appeal.3 Nor would a stay be appropriate,

3 MASN and Nominal Respondents filed notices of appeal on December 11, 2015. See Doc. Nos. 644, 646. As a purely protective measure in response to those notices of appeal, the


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particularly given the harm that further delay causes the Nationals (discussed below) and the

absence of any reasonable likelihood that MASN and the Nominal Respondents will prevail on

the central question presented in their appeals – whether this Court should have rewritten the

parties’ 2005 Telecast Agreement by directing arbitration before a panel other than the RSDC.

See Decision and Order at *13 n.21.4

MASN, Nominal Respondents, and the Commissioner of MLB all agreed in the

governing 2005 Telecast Agreement that disputes regarding the market value of the rights fees

would be resolved through arbitration before the RSDC. MASN and the Orioles, having

prevailed in vacating the original RSDC Award on the limited ground concerning Proskauer’s

representation of the Nationals during the original 2012 RSDC hearing, now are seeking to grant

themselves relief (that is, an arbitration in a venue other than the RSDC) that this Court already

denied. MASN and the Orioles are thus abusing the Court’s ruling to foreclose the Nationals’

Nationals served and filed a notice of cross appeal on December 21, 2015 (Doc. No. 651).(MLB also filed a notice of cross appeal that same day (Doc. No. 660).) The Nationals intend to

argue to the First Department that, if it affirms the Decision and Order in its entirety (and thusrejects MASN’s and Nominal Respondents’ arguments for vacatur on grounds other than evident partiality, and their arguments that the vacatur for evident partiality should have resulted in aremedy of a new arbitration before a panel other than the RSDC), the First Department need notaddress the Nationals’ cross appeal argument that the RSDC’s original award should not have been vacated for evident partiality and hence should be reinstated. In other words, the Nationals’ primary position is that a new arbitration should proceed before the RSDC; only in thealternative, and on the conditions just set forth, will the Nationals argue that the original RSDCaward should be reinstated.

4 “[S]tays pending appeal will not be granted . . . in cases where the appeal is meritless or taken primarily for the purpose of delay.” Herbert v. City of New York , 126 A.D.2d 404, 407 (1st Dep’t

1987). See also Da Silva v. Musso, 76 N.Y.2d 436, 443 n.4 (1990) (“there is no entitlement to astay and, indeed, the court considering the stay application may consider the merits of theappeal”); Navy Yard Hous. Dev. Fund, Inc. v. Carr , No. 33936/96, 2002 WL 1174711, at *2(N.Y. Civ. Ct. May 23, 2002) (in determining whether to grant a stay, courts “will be influenced by any relevant factor, including the presumptive merits of the appeal and any exigency or hardship confronting any party”) (citing Application of Mott , 123 N.Y.S.2d 603, 608 (Sup. Ct.Oswego Cnty. 1953)).


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bargained-for contractual right to an arbitration before the RSDC. As the Decision and Order

recognized, the deal agreed to by MASN and the Orioles – a deal that provided tremendous

benefits to the Orioles and imposed very large costs on the Nationals – was that the rights fees

would be determined by the RSDC.5

Further delay at this point in resolving the rights fees dispute for 2012-2016 would

severely prejudice the Nationals. The RSDC, in its original decision following the 2012

arbitration, awarded the Nationals far less than the Nationals had requested, but also more than

the amounts that MASN and the Orioles had claimed were warranted. See Decision and Order at

*4 (describing arbitration award). Since 2012, MASN has unilaterally determined to pay the

Nationals only rights fees based on the rejected formula that MASN and the Orioles had

5 The record confirms the many benefits the Orioles received from the 2005 Telecast Agreement.MASN is today worth far more than $1 billion; the Orioles did not have to contribute capital forits initial equity interest in MASN, while the Nationals agreed to pay $75 million for their initial10% equity stake; the Telecast Agreement provided the Orioles with a contractual right toequivalent telecast fees to the Nationals; the $365 million purchase price guarantee for theOrioles is a meaningful benefit; and MASN’s annual equity distributions to the Orioles, which,unlike the telecast rights fees, were not subject to the MLB’s revenue sharing tax, conferredsubstantial benefit. See Reply Declaration of C. Bevilacqua (Doc. No. 536) at ¶¶ 11-17.Without the Nationals’ move to D.C. and the related Telecast Agreement, however, which gaveMASN the exclusive rights to two teams’ games as well as a $75 million cash infusion from the Nationals, there is no evidence that MASN would have had the necessary leverage to launch asuccessful single team regional sports network. Id. at ¶ 13. The value of the Orioles, whenfactoring in the Orioles’ ownership in MASN, is $1.12 billion. Id. ¶ 14. The valuation benefitthe Orioles receive from MASN derives from (i) the Orioles’ supermajority stake in MASN,which entitles the Orioles to the lion’s share of any dividend payments; and (ii) the contractualright to receive the same telecast rights fees as the Nationals despite playing in a much smallercore market. Id. Under its prior agreements, the Orioles received just $17,840,000 for telecastrights in 2005 and $18,542,598 for telecast rights in 2006. Id. at ¶ 15. Under the TelecastAgreement, the Orioles became entitled to over $25 million for each year from 2007 to 2011. Id.A 2006 FIQ report shows that the Orioles received zero dollars in rights fees from their localtelevision deals, and in fact lost approximately $1.5 million through those deals in 2006. Id. at ¶16. Once this loss on the local over-the-air television deals is taken into account, the Orioles’ neteconomics from local television and cable deals increased more than 40% from 2006 to 2007, plainly conferring a benefit to the Orioles. Id.


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proposed during the original RSDC arbitration. Even accounting for the $25 million advance

from Major League Baseball to the Nationals in 2013, the difference for the period 2012 to the

present between the amounts awarded by the RSDC and the fees paid by MASN to the Nationals

exceeds $40 million, and that amount will continue to increase by more than $20 million during

2016. See Cohen Aff. at ¶¶ 8-10; see also pp. 14-16, infra. The Nationals’ continued inability to

collect fair market value for the television broadcast rights – a critical provision of the 2005

Partnership Agreement – has significant financial implications for the Nationals that impact the

team’s operations and competitiveness. See Cohen Aff. at ¶¶ 11-12.

In an effort to preclude consideration of this motion, MASN and Nominal Respondents

have suggested that this Court lacks jurisdiction to hear it, given the notices of appeal (albeit

unperfected) that MASN and the Nominal Respondents have filed regarding this Court’s denial

of their request for an order compelling arbitration in a venue other than the RSDC. As

demonstrated herein, however, New York State Court precedent demonstrates that there is no

automatic stay of an order for parties to arbitrate during any appeal of that order, see Point II,

infra, and that this Court retains jurisdiction to hear this type of motion during an appeal, see

Point III, infra.

The Nationals therefore respectfully bring this motion seeking an order compelling

MASN and Nominal Respondents to comply with this Court’s November 4 Decision and Order

and to arbitrate before the RSDC, now that the Nationals have fulfilled the only condition the

Decision and Order set forth for such an arbitration: retention of counsel that “do[es] not

concurrently represent MLB or the individual arbitrators and their clubs.” Id. at *13 n.21.


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BACKGROUND

The Decision and Order to Vacate RSDC Arbitration Award

In its Decision and Order, this Court rejected various substantive challenges that MASN

and the Nominal Respondents made to the RSDC Award. Specifically, this Court rejected the

arguments by MASN and the Nominal Respondents that the RSDC award should be vacated

because (1) the RSDC Award had been the result of corruption, fraud or undue means (because,

for example, MLB had some fraudulent intent to ensure that the arbitration favored the

Nationals), see Decision and Order at *5; (2) the RSDC members exceeded their authority and

manifestly disregarded the parties’ governing Agreement (by failing to apply MASN’s proffered

version of the so-called “Bortz” method, which according to MASN and the Orioles should have

guaranteed MASN at least a 20% operating margin), see id. at *5-6; (3) MLB and the RSDC

purportedly engaged in prejudicial misconduct (based on MLB’s role in the arbitration process),

see id. at *7; and (4) MASN and the Orioles were victims of evident partiality as a result of

MLB’s $25 million advance to the Nationals, see id. at *8-9.

The sole basis on which this Court determined to vacate the award concerned Proskauer’s

representation of the Nationals during the arbitration. Id. at *9-12.

Significantly, in vacating the RSDC Award, this Court expressly and unambiguously

rejected the request by MASN and the Nominal Respondents for an order directing that any

arbitration of the rights fees for 2012-2016 be held before some arbitral body other than the

RSDC. Id. at *13 n.21. The Parties’ 2005 Telecast Agreement – to which MASN, the Nominal

Respondents and the Commissioner of Major League Baseball are all parties – states clearly that

it is the RSDC that must determine the rights fees for 2012-2016 in the event MASN and the

Nationals cannot reach agreement themselves or through mediation. See id. at *2 (quoting 2005

Telecast Agreement at ¶2.J.3). In rejecting the request to send any arbitration to a body other


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than the RSDC, this Court reasoned that “re-writing the parties’ Agreement is outside of its

authority.” Id. at *13 n.21 (emphasis added).

Then, reflecting that the Nationals’ representation by Proskauer was the sole ground on

which this Court determined to vacate the RSDC award, this Court “emphasize[d]” that, in the

event the Nationals would agree to proceed with different counsel that does not concurrently

represent MLB, the RSDC members or their clubs, the arbitration should proceed before the

RSDC as presently constituted:

[B]ecause it is ultimately the Nationals’ choice of counsel that created theconflict, 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 theindividual arbitrators and their clubs, and thereby return to arbitration by the RSDC, however currently constituted, pursuant to the parties’ Agreement .Agreement 2.J.3.

Id. (emphasis added).

Notwithstanding the Court’s Decision and Order, MASN and

Nominal Respondents Refuse to Arbitrate Before the RSDC

Consistent with this Court’s Decision and Order, the Nationals on November 25, 2015,

advised MASN, Nominal Respondents, and the Commissioner of Baseball that in an RSDC

arbitration proceeding, the Nationals would be represented by different counsel with no

concurrent representations of Major League Baseball, the RSDC members, or their teams. See

Neuwirth Aff. Ex. 1 (Nov. 25, 2015 Letter from E. Cohen to R. Manfred). Based on that

decision to switch counsel, the Nationals requested that an arbitration before the RSDC, as

presently constituted, be convened promptly to determine the rights fees to be paid to the

Nationals for the years 2012-2016.

Notwithstanding this Court’s Decision and Order, counsel for MASN responded on

November 30, 2015, that MASN “will not accept that the RSDC can fairly arbitrate this dispute

now or at any time in the foreseeable future.” See Neuwirth Aff. Ex. 2 (Nov. 30, 2015 Letter


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from T. Hall to E. Cohen) at 1. The letter stated that both the Nominal Respondents (i.e., the

Orioles and BOLP) joined fully in this position. Id. at 2. The letter also asserted that the parties

should “‘meet and confer regarding whether they can agree to a different neutral dispute

resolution process.”‘ Id . But this Court’s Decision and Order had suggested such a meet and

confer about a different arbitration panel only if the Nationals did not agree to be represented by

a firm other than Proskauer in the arbitration. Again, this Court stated:

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, and

thereby return to arbitration by the RSDC, however currently constituted, pursuant to the parties’ Agreement. Agreement ¶2.J.3. If the current conflict remains, the parties might meet and confer regarding whether they can agree to a

different neutral dispute resolution process, such as – but by no means limited to – that in Section 8 of the parties’ own Agreement, wherein the parties arbitratetheir dispute ‘before a three-person panel in accordance with the CommercialRules of American Arbitration Association,’ outside of Maryland, Virginia andthe District of Columbia. Agreement ¶8.C.

Decision and Order at *13 n.21 (emphasis added). Here, the Nationals had already notified

MLB, MASN, and the Orioles that the Nationals would be using counsel different from

Proskauer, with no concurrent representations of MLB, the RSDC members, or their clubs.6

6 The November 30, 2015 Letter from MASN counsel also asserted that, before any newarbitration regarding the rights fees for 2012-2016, it purportedly would be necessary for the Nationals and MASN first to negotiate pursuant to Section 2.J.1 of the parties’ 2005 TelecastAgreement, and then to mediate pursuant to Telecast Agreement Section 2.2. That argumentignores that the RSDC proceeding in 2012 occurred only after the parties had negotiated pursuant to Section 2.J.1 and then agreed to waive the mediation requirements of Section 2.J.2.The record from the New York State Supreme Court litigation includes Alan Rifkin’s email, ofJanuary 5, 2012, to Robert Manfred, stating (among other things):

As you are aware, the Nationals and TCR have reached an impasse in their rightsfee discussions. By agreement, the parties have elected to bypass the non-bindingmediation set forth in Section 2.J.2 of the 2005 Settlement Agreement and


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By letter dated December 1, 2015, counsel for the Nationals confirmed that the Nationals

had retained Quinn Emanuel as counsel for the RSDC arbitration, and that Quinn Emanuel does

not represent MLB, any RSDC member, or any of the RSDC members’ clubs. See Neuwirth

Aff. Ex. 3 (December 1, 2015 Letter from S. Neuwirth to T. Hall.) The December 1, 2015 letter

from the Nationals’ counsel again highlighted the language from the Court’s Decision and Order

stating that the parties would “thereby” have an arbitration before the RSDC, as presently

constituted, if the Nationals were to select different counsel that does not concurrently represent

MLB, the RSDC members, or their clubs. Id. at 1-2.7

Nonetheless, MASN and Nominal Respondents reiterated their position on December 3,

2015, when counsel for MASN asserted in a letter to counsel for the Nationals that “MLB and

the RSDC are incurably compromised” and that “the parties should instead agree to meet and

confer concerning the submission of this dispute” to a different arbitrator. See Neuwirth Aff. Ex.

4 (December 3, 2015 Letter from T. Hall to S. Neuwirth). And then on December 11, 2015,

MASN’s counsel wrote to counsel for the Nationals again, asserting that “MASN and the Orioles

are entitled” to arbitrate the rights fees for 2012-2016 in a forum other than the RSDC. See

Neuwirth Aff. Ex. 5 (December 11, 2015 Letter from T. Hall to S. Neuwirth). Counsel for

MASN did not point to any authority in this Court’s Decision and Order. Instead they

recognized that this Court had declined to require arbitration outside the RSDC, and they thus

stated that MASN and Nominal Respondents had filed notices of appeal on the issue of whether

proceed directly to the Revenue Sharing Definitions Committee (“RSDC”) pursuant to the appellate procedures set forth in Section 2.J.3.

Affidavit of Bradley Ruskin (October 20, 2014), Ex. 5 (Doc. No. 357).

7 The December 1, 2015 Letter from the Nationals’ counsel also set forth the informationincluded above in footnote 1. See Neuwirth Aff., Ex. 3, at 2-3.


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the Court should have ordered that further arbitration proceedings occur before a panel other than

the RSDC. See id .

ARGUMENT

I. MASN AND NOMINAL RESPONDENTS SHOULD BE REQUIRED TO

COMPLY WITH THE DECISION AND ORDER, AND THUS TO ARBITRATE

BEFORE THE RSDC

A. The Nationals Have Selected New Counsel and Therefore the Arbitration

Must Proceed Before the RSDC under the Plain Terms of the Decision and

Order.

This Court’s November 4, 2015 Decision and Order vacated the RSDC Award with

respect to Proskauer’s representation of the Nationals during the arbitration, but denied all of

MASN’s and Nominal Respondents’ other challenges to the RSDC Award. The Decision and

Order stated that an arbitration could be conducted before the RSDC if the Nationals replace

Proskauer with new counsel that does not concurrently represent MLB or the members of the

RSDC panel or their clubs: “The Court emphasizes that because it is ultimately the Nationals’

choice of counsel that created the conflict, 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, however

currently constituted, pursuant to the parties’ Agreement .” Decision and Order at *13 n.21

(emphasis added). The Court also rejected the request by MASN and the Nominal Respondents

for an order requiring any arbitration to be held in a venue other than the RSDC, stating, that “re-

writing the parties’ Agreement [which calls for arbitration before the RSDC] is outside of its

authority.” Decision and Order at *13 n.21 (emphasis added).

Although the Nationals have advised MASN and the Nominal Respondents that the

Nationals are replacing Proskauer with new counsel that has no concurrent representations of


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MLB, the RSDC members or their teams, MASN and Nominal Respondents have nonetheless

flatly refused to return to the RSDC for an arbitration.

B. The Prerequisites for an Order Compelling Arbitration Are Satisfied.

As this Court noted in the Decision and Order at *4, this dispute is governed by the

Federal Arbitration Act (“FAA”) because it involves a contract “evidencing a transaction

involving commerce.” Kensington Ins. Co. v. James River Specialty Ins. Co., 997 N.Y.S.2d 407,

408-09 (1st Dep’t 2014). Under the FAA, where the existence and terms of an agreement to

arbitrate a given dispute are clear and unambiguous, and one party to the agreement has refused

to arbitrate, the court should order the parties to arbitration under the terms of the agreement. Id.

at 408-09 (affirming order compelling arbitration where agreement to arbitrate was “clear and

unambiguous”); see also LAIF X SPRL v. Axtel, S.A. de C.V., 390 F.3d 194, 198 (2d Cir. 2004)

(“Under the FAA, the role of courts is limited to determining two issues: i) whether a valid

agreement or obligation to arbitrate exists, and ii) whether one party to the agreement has failed,

neglected or refused to arbitrate.”). A refusal to arbitrate is established where the party either

“fail[s] to comply with an arbitration demand or ... otherwise unambiguously manifest[s] an

intention not to arbitrate the subject matter of the dispute” in accordance with the agreement.

PaineWebber Inc. v. Faragalli, 61 F.3d 1063, 1066 (3d Cir. 1995) (quoted in LAIF , 390 F.3d

at 198); see Crystal Pool AS v. Trefin Tankers Ltd., 2014 WL 1883506, at *3 (S.D.N.Y. May 9,

2014) (refusal to arbitrate established where party failed to respond to repeated requests to

appoint an arbitrator); Telesat Canada v. Planetsky, Ltd., 2013 WL 592668, at *3 (S.D.N.Y. Feb.

15, 2013) (refusal to arbitrate established where party failed to respond to arbitration demand).

The prerequisites to an order compelling arbitration are satisfied here.


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1. The Parties’ Agreement

First , the 2005 Telecast Agreement expressly requires the parties to arbitrate their rights

fees dispute before the RSDC. Specifically, paragraph 2.J.3 provides in relevant part: “In the

event that the Nationals and/or the Orioles and [MASN] are unable to timely establish the fair

market value of the Rights by negotiation and/or mediation as set forth above, then the fair

market value of the Rights shall be determined by the [RSDC] using the RSDC’s established

methodology for evaluating all other related party telecast agreements in the industry.”

Affirmation of Thomas J. Hall (Sept. 23, 2014), Ex. 1, at 8 (Doc. No. 204). As this Court ruled

in the Decision and Order, 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.” Decision and Order at *13 n.21. It

was only if the Nationals continued to be represented by Proskauer that the Court suggested the

parties could meet and confer to consider other arbitration forums: the Decision and Order stated

that only “[i]f the current conflict remains” – that is, if the Nationals determined to continue to

be represented by Proskauer for the arbitration – that the Court suggested the parties “might

meet and confer regarding whether they can agree to a different neutral dispute resolution

process.” Id.

2. Refusal To Arbitrate Before The RSDC

Second , MASN and Nominal Respondents have unequivocally refused to return to the

RSDC for the arbitration. They have made this position clear on numerous occasions, including

a December 11, 2015 letter asserting that “MASN and the Orioles are entitled to have the parties’

telecast rights fees dispute heard by an impartial, neutral and independent forum in the wake of

the [Decision and Order].” Neuwirth Aff. ¶ 15 & Ex. 5; see also Neuwirth Aff. Ex. 4 (asserting

that “MLB an the RSDC are incurably compromised and conflicted,” and that “[i]t is a fiction to


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suggest that MLB or the RSDC can arbitrate a telecast rights fees dispute in a fair, neutral and

objective matter [sic] under these circumstances”); Neuwirth Aff. Ex. 2 (“We do not and will not

accept that the RSDC can fairly arbitrate this dispute now or at any time in the foreseeable

future.”). MASN and Nominal Respondents reiterated their position during the recent

teleconference with the Court’s Principal Law Clerk and also in connection with the parties’

January 20, 2016 meeting. See Neuwirth Aff. At ¶¶ 21-23.

3. Prejudice To The Nationals From Continued Delay

Third , while the foregoing two points are sufficient in themselves to warrant an order

compelling MASN and Nominal Respondents to return to the RSDC for an arbitration, they are

underscored by the prejudice to the Nationals that will result from delaying that arbitration. The

2005 Telecast Agreement was structured so that, after an initial multi-year period during which

the Nationals would be paid specified below-market rates for the team’s television broadcast

rights (which the Agreement gave exclusively to MASN, controlled and super-majority owned

by the Orioles), the Nationals would then be paid broadcast rights fees at market rates for the

period 2012-2016 (and then for subsequent periods thereafter). As this Court noted in its

Decision and Order, to the extent the Nationals and MASN had been unable to agree in advance

of 2012 on the market value of the rights fees for 2012-2016, MASN, the Orioles, and the

Commissioner of Baseball agreed in the 2005 Partnership Agreement that the market value of the

rights fees would be determined by the RSDC.8

8 As noted above (at 9 n.6), the 2005 Telecast Agreement provided that any arbitration before theRSDC should occur only after MASN and the Nationals would first seek to negotiate the marketvalue of the rights fees, and then if those negotiations failed, seek to resolve the dispute throughnon-binding mediation. Here, the record confirms that MASN and the Nationals engaged inultimately unsuccessful negotiations in 2011, and then (by written communication from Alan M.Rifkin, Esq., counsel for the Orioles) advised MLB that the parties were waiving the non-bindingmediation contemplated by Section 2.J.2 of the 2005 Partnership Agreement. See id.


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The RSDC, in its original decision following the 2012 arbitration, awarded the Nationals

far less than the Nationals had requested, but also more than the amounts that MASN and the

Orioles had proposed. Decision and Order at *4. Since 2012, however, MASN has been paying

the Nationals rights fees based on the formula that MASN and the Orioles had proposed during

the original RSDC arbitration.

Further delay in determining the rights fees at this point severely prejudices the

Nationals. It permits MASN to continue paying the Nationals below-market telecast rights fees.

The Nationals remain at the mercy of MASN’s whims on the rights fees to pay, which MASN is

simply determining unilaterally at this point.

The delay significantly impacts the Nationals’ finances. While the Nationals have a

strong business, with access to revolving credit lines, and maintain adequate cash reserves, the

Nationals nevertheless have various cash flow needs necessitated by a large payroll and other

ongoing expenses. MASN’s underpayment of rights fees has already required the Nationals to

fund payroll and other expenses from its own reserves, and further delay could require the

Nationals to seek new financing. This is not only burdensome in its own right, but it places the

Nationals at a competitive disadvantage to other baseball clubs, which typically receive fair

market value from their regional sports networks for their telecast rights. Without this added

income, the Nationals are handicapped in their ability to invest in efforts to improve the team.

For instance, without this added and steady income, the Nationals cannot bring full economic

confidence to investments in multi-year player contracts to keep up with the fierce competition

for top players – especially when such control over finances is in the hands of a neighboring

club. Delay also hamstrings the Nationals’ ability to invest in stadium and related improvements

which would generate additional income and help keep the Nationals competitive. In other


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words, MASN’s refusal to pay the fair market value fees required under the contract forces the

Nationals either to have to borrow more money to fund cash flow needs (which comes with its

own costs) or to limit or to forego the sorts of investments the Nationals should be making to

build the club’s business for the future. See Affidavit of Ed Cohen (Jan. 20, 2015) at ¶¶ 8-12.

See also August 13, 2014 Affidavit of Ed Cohen (Doc. No. 90) ¶¶ 22-26; Cohen Reply Aff.

(Doc. No. 533) ¶ 27.

Moreover, the contractual provisions permitting a determination of the rights fees before

the RSDC are essential to the balance of power under the 2005 Telecast Agreement, which gives

the Orioles complete management control of MASN and super-majority ownership as well. The

parties agreed to have MLB owners familiar with MLB’s revenue sharing principles determine

the market value of the rights fees in the event MASN and the Nationals could not do so

themselves. The finances of regional sports networks like MASN are regularly considered in the

context of revenue sharing, and the parties, including MASN and the Orioles, agreed that an

“inside-MLB” approach to determining the rights fees would be applied.

MASN and the Orioles, having prevailed in vacating the RSDC Award solely on the

ground concerning Proskauer’s representation of the Nationals at the original RSDC hearing,

now are seeking to abuse that result by denying the Nationals the bargained-for right to an

arbitration before the RSDC. The deal agreed by MASN and the Orioles – a deal that provided

tremendous benefits to the Orioles ( see p. 5 & n.5, supra) and imposed very large costs on the

Nationals – was that the rights fees would be determined by the team owners/representatives on

the RSDC.

* * *


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At bottom, no justification exists at this point for MASN and the Orioles to impose

further, self-serving delay by disregarding (1) this Court’s rejection of MASN’s and Nominal

Respondents’ request to order that the arbitration be before an arbitral body other than the

RSDC, Decision and Order at *13 n. 21, and (2) this Court’s express direction if the Nationals

select new arbitration counsel with no concurrent representations of MLB, the RSDC members

of their clubs, that the parties should “thereby return to arbitration by the RSDC, however

currently constituted, pursuant to the parties’ agreement. Agreement ¶ 2.J.3,” id.

II. THE RECENTLY FILED NOTICES OF APPEAL ARE NOT A BASIS FOR

MASN AND NOMINAL RESPONDENTS UNILATERALLY TO PREVENT

ARBITRATION BEFORE THE RSDC

Although MASN and Nominal Respondents filed notices of appeal from the Decision

Order, they did not seek a stay of the Decision and Order pending appeal, including the rulings

(a) denying MASN’s and Nominal Respondents’ request for an order that the arbitration be

before a body other than the RSDC, and (b) that the parties must “return to arbitration by the

RSDC, however currently constituted, pursuant to the parties’ agreement” if the Nationals

choose to be represented before the RSDC by counsel that is not concurrently representing Major

League Baseball, the RSDC members, or their teams. See Decision and Order at *13 n.21.9

Rather, MASN and Nominal Respondents now have sought unilaterally to impose a stay

by refusing to arbitrate the 2012-2016 rights fees before the RSDC.

9 The Decision and Order is not within any of the categories for which an automatic stay isgranted under CPLR § 5519. Cf. In re SSL Int’l, PLC , 44 A.D.3d 429, 430 (1st Dep’t 2007) (noautomatic stay of trial court order compelling arbitration; appellant unsuccessfully moved to stayarbitration pending appeal); Hart v. Tri-State Consumer, Inc., 18 A.D.3d 610, 612 (2d Dep’t2005) (similar); Weisz v. Weisz , 975 N.Y.S.2d 627, 628 (Sup. Ct. Kings Cnty. 2013) (noautomatic stay of arbitration pending appeal; Appellate Division denied motion for stay).


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Aside from the fact that MASN and Nominal Respondents have not requested a stay from

this Court, there would be no justification for granting such a stay even if it had been requested.

“[S]tays pending appeal will not be granted . . . in cases where the appeal is meritless or taken

primarily for the purpose of delay.” Herbert , 126 A.D.2d at 407. See also Da Silva, 76 N.Y.2d at

443 n.3 (“there is no entitlement to a stay and, indeed, the court considering the stay application

may consider the merits of the appeal”); Navy Yard Hous. Dev. Fund , No. 33936/96, 2002 WL

1174711, at *2 (in determining whether to grant a stay, courts “will be influenced by any

relevant factor, including the presumptive merits of the appeal and any exigency or hardship

confronting any party”) (citing Application of Mott , 123 N.Y.S.2d at 608).

Here, any appeal by MASN and Nominal Respondents on the question whether to

mandate arbitration before a body other than the RSDC would be meritless because it would rest

on an argument that the parties’ explicit 2005 Telecast Agreement should be re-written. In

rejecting the request to mandate arbitration by a body other than the RSDC, this Court found that

“re-writing the parties’ Agreement is outside of its [the Court’s] authority.” Decision and Order

at *13 n.21. MASN and the Orioles have never cited a single case supporting a different

standard. Most of the cases they cited actually involved remand for new proceedings specifically

in accordance with the arbitration agreement’s provisions. See, e.g., Pitta v. Hotel Assoc. of

N.Y.C., Inc., 806 F.2d 419, 424-25 (2d Cir. 1986) (requiring appointment of “another arbitrator

in accordance with … the Agreement”).10 The only exception is cases where the contractually-

10 See also Catalyst Waste-to-Energy Corp. of Long Beach v. Long Beach, 164 A.D.2d 817 (1stDep’t 1990) (remanding to new panel of arbitrators consistent with arbitration agreement);Options on Shares, Inc. v. Edwards & Hanley, 42 A.D.2d 932 (1st Dep’t 1973) (similar).


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selected arbitrator was literally unavailable, Orioles 2d Br. (Doc. No. 466) at 14, but the RSDC

is available here.11 Here, of course, the RSDC remains available to arbitrate this matter.

The other cases MASN cited in the prior proceedings involved agreements that required

reformation. See Aviall, Inc. v. Ryder Sys., Inc., 110 F.3d 892, 895-96 (2d Cir. 1997) (discussing

Erving v. Va. Squires Basketball Club, 349 F. Supp. 719, 719 (E.D.N.Y. 1972), and Morris v.

N.Y. Football Giants, Inc., 575 N.Y.S.2d 1013, 1016-17 (Sup. Ct. N.Y. Cnty. 1991)). But

contract reformation is an “extraordinary remedy,” 16 N.Y. Jur. 2d Cancellation of Instruments §

56, intended to “restate the intended terms of an agreement when the writing that memorializes

that agreement is at variance with the intent of both parties,” Warberg Opportunistic Trading

Fund, L.P. v. GeoResources, Inc., 112 A.D.3d 78, 86 (1st Dep’t 2013). A party must establish its

right to reformation by “clear, positive and convincing evidence,” id., including by showing “in

no uncertain terms . . . exactly what was really agreed upon by the parties.” Chimart Assocs. v.

Paul , 66 N.Y.2d 570, 574 (1986) (emphasis added).

MASN could never make such a showing. The 2005 Telecast Agreement includes no

provision, and does not evidence any intention of the parties, to submit their dispute to a neutral

expert outside of the MLB’s RSDC. To the contrary: the Agreement expressly calls for

arbitration before the RSDC, where relationships among the parties were inherent, see pp. 4-5,

13, supra. The case law recognizes that arbitration agreements can sacrifice complete partiality

and formality for other benefits. See pp. 8-10, supra; see also Ecoline, Inc. v. Local Union No.

12 of Int’l Ass’n of Heat & Frost Insulators & Asbestos Workers, AFL-CIO, 271 F. App’x 70, 72

11 Hooters of Am. Inc. v. Phillips, 173 F.3d 933 (4th Cir. 1999), is wholly inapposite – there, thecourt granted rescission of the contract due to breach and allowed the dispute to proceed incourt. Id. at 940. Boston Ins. Co. v. Carpinter & Baker, Inc., 27 A.D.2d 534 (1st Dep’t 1966),did not involve a court-ordered change to the arbitral procedure.


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(2d Cir. 2008) (“Generally, partisan arbitrators are permissible.... The parties to an arbitration

choose their method of dispute resolution, and can ask no more impartiality than inheres in the

method they have chosen.”) (quoting Delta Mine Holding Co. v. AFC Coal Props., Inc., 280

F.3d 815, 821 (8th Cir. 2001)); Carboni v. Lake, 562 F. Supp. 2d 585, 587 (S.D.N.Y. 2008)

(refusing to order arbitration to a tribunal other than the contractually-selected NYMEX, despite

objections that NYMEX would be biased).12

III. THIS COURT HAS JURISDICTION TO ORDER THE REQUESTED RELIEF

MASN and Nominal Respondents have suggested that this Court lacks any jurisdiction to

hear this motion, purportedly because their still unperfected notices of appeal are pending. These

assertions are incorrect and inconsistent with First Department case law.

In New York, an appellate court has jurisdiction only with respect to “matters pertaining

to the appeal itself and to the proper hearing thereof, as well as with respect to all applications

which by statute may be made to the appellate court after the taking of an appeal.” Walthour v.

Pub. Serv. Interstate Transp. Co., 109 N.Y.S.2d 10, 13 (Sup. Ct. Kings Cnty. 1951). In all other

respects, “the case is regarded as still pending in the court of original jurisdiction, and …

applications [for relief] should be made to that court.” Id. (emphasis added). This is a settled

principle of New York’s judicial system. See, e.g., Rospigliosi v. Abbate, 31 A.D.3d 648, 650

(2d Dep’t 2006) (lower court may “entertain and decide motions, even where the outcome of

12 While MASN’s reply brief (at 3, 23, 25) quoted Goldfinger v. Lisker , 68 N.Y.2d 225, 231(1986), for the proposition that “arbitrators … are expected to ‘faithfully and fairly’ hear the

controversy over which they have been chosen to preside,” that language refers to the statutoryarbitral oath in CPLR 7506(a). Goldfinger was decided under the inapplicable state law“appearance of bias” standard, not the FAA, which applies here. See supra, at 12. And in anyevent, the Court of Appeals has held that even where the CPLR is otherwise applicable, itsformalities are not required where (as here) the parties have made a “voluntary choice” of anarbitration forum that does away with formal procedures. Am. Ins. Co. v. Messinger , 43 N.Y.2d184, 188 (1977).


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such motion practice may impact the pending appeal”); Ruben v. Am. & Foreign Ins. Co., 185

A.D.2d 63, 68 (4th Dep’t 1992) (citing Bulkley v. Whiting Mfg. Co., 136 A.D. 479 (1st Dep’t

1910)) (similar); Fassl v. New York State Dep’t of Taxation & Fin., 159 A.D.2d 1029 (4th Dep’t

1990) (“The filing of an appeal … does not preclude Supreme Court from hearing and

determining [a new] motion in the action …..”); Ascentium Capital LLC v. Northern Capital

Associates XIII, L.P., 2014 WL 1650960 (Sup. Ct., N.Y. Cnty. Apr. 14, 2014) (similar); Fry v.

Vill. of Tarrytown, 671 N.Y.S.2d 633, 633 (Sup. Ct., Westchester Cnty. 1998) (“While an appeal

is pending…, the lower courts retain jurisdiction to entertain appropriate applications with

respect to the case.”) (citing Kleinman v. Metropolitan Life Ins. Co., 298 N.Y. 217 (1948)); 4

N.Y. Jur. 2d Appellate Review § 415 (“In the absence of any order issued by any appellate court

staying the proceeding, the court of original jurisdiction retains certain powers that it may

exercise pending an appeal, for all purposes except questions relating to the appeal and its

hearing and determination….”); 10A Carmody-Wait N.Y Practice 2d § 70:246 (similar).

Black-letter New York case law thus provides this Court with jurisdiction to compel arbitration

pursuant to the parties’ agreement.

CONCLUSION

For the foregoing reasons, it is respectfully submitted that the Court should issue an order

compelling MASN and Nominal Respondents to comply with the Court’s November 4, 2015

Decision and Order, and to arbitrate the parties’ rights fees dispute for 2012-2016 before the

RSDC as presently constituted, subject to the Nationals being represented by counsel that does

not concurrently represent MLB, the RSDC members or their clubs.


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Dated: January 21, 2016 New York, New York

Respectfully submitted,

QUINN EMANUEL URQUHART& SULLIVAN, LLP

By: /s/ Stephen R. Neuwirth______ Stephen R. NeuwirthSanford I. WeisburstCleland Welton51 Madison Avenue New York, New York 10010212-849-7000

Attorneys for Plaintiff The Washington

Nationals Baseball Club, LLC

Washington's Motion to Compel Arbitration

Documents

Transcript of Washington's Motion to Compel Arbitration