ESPN-MLB Dispute Predates Sunday-Night Squabble: Filings

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New York -- Recent court filings from ESPN's lawsuitagainst Major League Baseball revealed that the network's quarrel with the leaguedates back long before ESPN acquired the entire National Football League cable package in1998 and attempted to pre-empt Sunday-night MLB games in September in favor of NFLcontests.

ESPN sued the league in May after it was notified that MLBwas terminating its agreement with ESPN, which runs through 2002, at the end of the 1999season.

MLB countersued, claiming that ESPN's attempt topre-empt Sunday games in September was a breach of contract.

Both sides are to submit briefs laying out their casestoday (Oct. 25), and a jury trial is scheduled to begin Nov. 15.

ESPN suggested in Federal Court papers that internal MLBdocuments obtained during discovery proceedings showed that MLB commissioner Allan (Bud)Selig sought revenge against ESPN after ESPN fought TBS Superstation's conversion toa basic-cable network in 1996.

ESPN opposed the TBS conversion because it was concernedthat TBS, which airs Atlanta Braves games, would run more baseball on national basic cablethan MLB rights-holder ESPN. But MLB, ESPN and Fox, another MLB rights-holder, agreed on asettlement that allowed the conversion.

While deposing Selig, ESPN attorney Eric Lobenfeld askedthe MLB chief if he told other MLB executives, "If we're reasonable and they[ESPN] stiff us [on the TBS approval], I'll try to get even with them every way Ican." Selig responded that he had "no recollection" of making such astatement.

In court papers obtained last week, MLB attempted toexclude testimony from Don Ohlmeyer, former NBC West Coast president and a former ESPNdirector who sold his sports programming company, OCC, to ESPN for "tens of millionsof dollars" several years ago, according to an MLB filing.

A crux of the case is the clause in ESPN's contractthat allowed it to pre-empt baseball games with MLB approval for "events ofsignificant viewer interest." MLB argued that Ohlmeyer's "opinion wouldmislead the jury and lead to the danger of unfair prejudice," partly because"Ohlmeyer has no expertise with respect to the clause at issue and, therefore, nounderstanding of the industry custom and practice."

ESPN has claimed that the league attempted to extract $350million more than what the contract provided after ESPN sought to move three Septemberbaseball games to ESPN2.

Buttressing that claim, ESPN's filings included anApril 17, 1998, letter from MLB president and chief operating officer Paul Beeston to ESPNexecutive vice president of administration Ed Durso.

In the letter, Beeston presented a "list of items thatwe believe must be addressed if we are to consider further your request." The requestwas the right to shift three late-season, Sunday-night games to ESPN2 in order to showfar-higher-rated NFL contests on ESPN.

MLB proposed:

• MLB taking back the Sunday-night games "at noreduction in rights fees," and the league selling the games to an over-the-airnetwork or another basic-cable network.

• ESPN's rights fees to MLB increasing to $42million per year from 1998 through 2002.

• ESPN giving MLB a weekly half-hour block ofprogramming to produce and distribute a youth-oriented baseball program. MLB would providefour 30-second advertising units to local cable affiliates, and the league would sell theremaining ad inventory for the show.

• ESPN's regular-season international rightsreverting back to MLB in 1999.

ESPN runs hundreds of hours of MLB programming each year,including its Baseball Tonight show, which was pulled at the end of the regularseason.

In recent months, MLB executives have said that theywon't shop the Wednesday-night and Sunday-night games in ESPN's contract toother cable networks until the dispute is resolved. Likely candidates to assume the cableportion of the contract would include Turner Sports and Fox Sports Net.

MLB spokesman Rich Levin could not be reached for commentlast Friday.