INDEX NO.

652044/2014

FILED: NEW YORK COUNTY CLERK 01/21/2016 07:45 PM

NYSCEF DOC. NO. 671

RECEIVED NYSCEF: 01/21/2016

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
TCR SPORTS BROADCASTING HOLDING, LLP,

Index No. 652044/2014

(IAS Part 41; Marks, J.)

Petitioner,
-againstWN 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 OF
MAJOR LEAGUE BASEBALL,
Respondents,
-andTHE BALTIMORE ORIOLES BASEBALL CLUB and
BALTIMORE ORIOLES LIMITED PARTNERSHIP, in its
capacity as managing partner of TCR SPORTS
BROADCASTING HOLDING, LLP,
Nominal Respondents.

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 COURTS
NOVEMBER 4, 2014 OPINION AND ORDER BY ARBITRATING BEFORE MAJOR
LEAGUE BASEBALLS REVENUE SHARING DEFINITIONS COMMITTEE
QUINN EMANUEL URQUHART
& SULLIVAN LLP
51 Madison Avenue
New York, New York 10010
212-849-7000 (voice)
212-849-7100 (fax)
Attorneys for Respondent
Washington Nationals Baseball Club, LLC
January 21, 2016

TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .....................................................................................................1
BACKGROUND .............................................................................................................................7
The Decision and Order to Vacate RSDC Arbitration Award.............................................7
Notwithstanding the Courts Decision and Order, MASN and Nominal
Respondents Refuse to Arbitrate Before the RSDC ................................................8
ARGUMENT.................................................................................................................................11
I.

MASN AND NOMINAL RESPONDENTS SHOULD BE REQUIRED TO

COMPLY WITH THE DECISION AND ORDER, AND THUS TO
ARBITRATE BEFORE THE RSDC ................................................................................11
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. .....................................................................................................................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 FOR

MASN AND NOMINAL RESPONDENTS UNILATERALLY TO PREVENT
ARBITRATION BEFORE THE RSDC............................................................................17

III.

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

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

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 Dept 1966) ..............................................................................................19
Bulkley v. Whiting Mfg. Co.,
136 A.D. 479 (1st Dept 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 Dept 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 Intl Assn of Heat & Frost
Insulators & Asbestos Workers, AFL-CIO,
271 F. Appx 70 (2d Cir. 2008) ..............................................................................................19
Erving v. Va. Squires Basketball Club,
349 F. Supp. 719 (E.D.N.Y. 1972) ..........................................................................................19
ii

Fassl v. New York State Dept of Taxation & Fin.,

159 A.D.2d 1029 (4th Dept 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 Dept 2005) ...............................................................................................17
Herbert v. City of New York,
126 A.D.2d 404 (1st Dept 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 Dept 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 Dept 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 Dept 2006) ...............................................................................................20
Ruben v. Am. & Foreign Ins. Co.,
185 A.D.2d 63 (4th Dept 1992) .............................................................................................21

iii

In re SSL Intl, PLC,

44 A.D.3d 429 (1st Dept 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 Dept 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

iv

PRELIMINARY STATEMENT
Respondent The Washington Nationals (the Nationals) regret imposing upon this Court
to enforce the Courts 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 Baseballs 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 MASNs 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 Limited
Partnership are referred to herein collectively as Nominal Respondents or the Orioles. The
Orioles own a super-majority stake in, and have full management control of, MASN.

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 Courts 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 did
not serve on the RSDC during the original proceeding in 2012), and Frank Coonelly, President of
the Pittsburgh Pirates (who was a member of the RSDC in 2012). The third seat on the RSDC is
vacant, but the Nationals understand that MLB will be filling that vacancy in the immediate
future. See Affidavit of Ed Cohen (January 20, 2016) (Cohen Aff.) at 6.
2

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 Courts 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 Courts 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 Courts 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,

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
3

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 Proskauers
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 Courts 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 thus
rejects MASNs 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 a
remedy of a new arbitration before a panel other than the RSDC), the First Department need not
address the Nationals cross appeal argument that the RSDCs 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 the
alternative, and on the conditions just set forth, will the Nationals argue that the original RSDC
award 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 Dept
1987). See also Da Silva v. Musso, 76 N.Y.2d 436, 443 n.4 (1990) (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, 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)).
4

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

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 for
its initial equity interest in MASN, while the Nationals agreed to pay $75 million for their initial
10% equity stake; the Telecast Agreement provided the Orioles with a contractual right to
equivalent telecast fees to the Nationals; the $365 million purchase price guarantee for the
Orioles is a meaningful benefit; and MASNs annual equity distributions to the Orioles, which,
unlike the telecast rights fees, were not subject to the MLBs revenue sharing tax, conferred
substantial 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 gave
MASN 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 a
successful single team regional sports network. Id. at 13. The value of the Orioles, when
factoring in the Orioles ownership in MASN, is $1.12 billion. Id. 14. The valuation benefit
the Orioles receive from MASN derives from (i) the Orioles supermajority stake in MASN,
which entitles the Orioles to the lions share of any dividend payments; and (ii) the contractual
right to receive the same telecast rights fees as the Nationals despite playing in a much smaller
core market. Id. Under its prior agreements, the Orioles received just $17,840,000 for telecast
rights in 2005 and $18,542,598 for telecast rights in 2006. Id. at 15. Under the Telecast
Agreement, 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 local
television 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 net
economics from local television and cable deals increased more than 40% from 2006 to 2007,
plainly conferring a benefit to the Orioles. Id.
5

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
teams 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 Courts 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 Courts 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.

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 MASNs 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 MLBs role in the arbitration process),
see id. at *7; and (4) MASN and the Orioles were victims of evident partiality as a result of
MLBs $25 million advance to the Nationals, see id. at *8-9.
The sole basis on which this Court determined to vacate the award concerned Proskauers
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
7

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 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.
Agreement 2.J.3.
Id. (emphasis added).
Notwithstanding the Courts Decision and Order, MASN and
Nominal Respondents Refuse to Arbitrate Before the RSDC
Consistent with this Courts 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 Courts 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
8

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 Courts 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 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. 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 arbitrate
their dispute before a three-person panel in accordance with the Commercial
Rules of American Arbitration Association, outside of Maryland, Virginia and
the 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

The November 30, 2015 Letter from MASN counsel also asserted that, before any new
arbitration 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 Telecast
Agreement, and then to mediate pursuant to Telecast Agreement Section 2.2. That argument
ignores 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 Rifkins email, of
January 5, 2012, to Robert Manfred, stating (among other things):
As you are aware, the Nationals and TCR have reached an impasse in their rights
fee discussions. By agreement, the parties have elected to bypass the non-binding
mediation set forth in Section 2.J.2 of the 2005 Settlement Agreement and
9

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 Courts 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,
MASNs 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 Courts 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 information
included above in footnote 1. See Neuwirth Aff., Ex. 3, at 2-3.
10

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 Courts November 4, 2015 Decision and Order vacated the RSDC Award with
respect to Proskauers representation of the Nationals during the arbitration, but denied all of
MASNs 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 rewriting 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

11

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 Dept 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.

12

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 RSDCs 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
13

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 Courts 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 teams 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 the
RSDC should occur only after MASN and the Nationals would first seek to negotiate the market
value of the rights fees, and then if those negotiations failed, seek to resolve the dispute through
non-binding mediation. Here, the record confirms that MASN and the Nationals engaged in
ultimately 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-binding
mediation contemplated by Section 2.J.2 of the 2005 Partnership Agreement. See id.
14

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 MASNs 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. MASNs 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

15

words, MASNs 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 clubs 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 MLBs 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 Proskauers 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.
* * *

16

At bottom, no justification exists at this point for MASN and the Orioles to impose
further, self-serving delay by disregarding (1) this Courts rejection of MASNs 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 Courts 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 MASNs 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.

The Decision and Order is not within any of the categories for which an automatic stay is
granted under CPLR 5519. Cf. In re SSL Intl, PLC, 44 A.D.3d 429, 430 (1st Dept 2007) (no
automatic stay of trial court order compelling arbitration; appellant unsuccessfully moved to stay
arbitration pending appeal); Hart v. Tri-State Consumer, Inc., 18 A.D.3d 610, 612 (2d Dept
2005) (similar); Weisz v. Weisz, 975 N.Y.S.2d 627, 628 (Sup. Ct. Kings Cnty. 2013) (no
automatic stay of arbitration pending appeal; Appellate Division denied motion for stay).
17

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 Courts] 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 agreements 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 (1st
Dept 1990) (remanding to new panel of arbitrators consistent with arbitration agreement);
Options on Shares, Inc. v. Edwards & Hanley, 42 A.D.2d 932 (1st Dept 1973) (similar).
18

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 Dept 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 MLBs 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 Intl Assn of Heat & Frost Insulators & Asbestos Workers, AFL-CIO, 271 F. Appx 70, 72

11

Hooters of Am. Inc. v. Phillips, 173 F.3d 933 (4th Cir. 1999), is wholly inapposite there, the
court granted rescission of the contract due to breach and allowed the dispute to proceed in
court. Id. at 940. Boston Ins. Co. v. Carpinter & Baker, Inc., 27 A.D.2d 534 (1st Dept 1966),
did not involve a court-ordered change to the arbitral procedure.
19

(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 Yorks judicial system. See, e.g., Rospigliosi v. Abbate, 31 A.D.3d 648, 650
(2d Dept 2006) (lower court may entertain and decide motions, even where the outcome of
12

While MASNs 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 statutory
arbitral 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 any
event, the Court of Appeals has held that even where the CPLR is otherwise applicable, its
formalities are not required where (as here) the parties have made a voluntary choice of an
arbitration forum that does away with formal procedures. Am. Ins. Co. v. Messinger, 43 N.Y.2d
184, 188 (1977).
20

such motion practice may impact the pending appeal); Ruben v. Am. & Foreign Ins. Co., 185
A.D.2d 63, 68 (4th Dept 1992) (citing Bulkley v. Whiting Mfg. Co., 136 A.D. 479 (1st Dept
1910)) (similar); Fassl v. New York State Dept of Taxation & Fin., 159 A.D.2d 1029 (4th Dept
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 Courts 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.

21

Dated: January 21, 2016

New York, New York

Respectfully submitted,
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
By: /s/ Stephen R. Neuwirth______
Stephen R. Neuwirth
Sanford I. Weisburst
Cleland Welton
51 Madison Avenue
New York, New York 10010
212-849-7000
Attorneys for Plaintiff The Washington
Nationals Baseball Club, LLC

22