WEBVTT - Warner's TNT Sues NBA Over TV Rights 0:00:03.200 --> 0:00:08.760 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:10.200 --> 0:00:14.240 Warner Brothers Discovery is suing the NBA for breach of 0:00:14.360 --> 0:00:18.680 contract after the league didn't accept the company's matching offer 0:00:18.800 --> 0:00:22.279 for one of its packages in its upcoming eleven year 0:00:22.400 --> 0:00:27.160 media rights deal. Warner is the parent company of TNT Sports, 0:00:27.480 --> 0:00:30.960 and the NBA said it wasn't accepting Warner's one point 0:00:31.040 --> 0:00:34.720 eight billion dollar a year offer and instead signed deals 0:00:34.760 --> 0:00:39.479 with Amazon, Disney and NBC Universal. The new contracts are 0:00:39.520 --> 0:00:43.960 expected to triple the league's broadcast income. Charles Barkley, who's 0:00:43.960 --> 0:00:47.559 been an analyst on TNT for twenty four years, was 0:00:47.600 --> 0:00:49.080 outspoken about the deal. 0:00:50.040 --> 0:00:53.880 This was a last ditch cash grab by the NBA 0:00:54.200 --> 0:00:57.639 and the players. That's why I think they signed an 0:00:57.640 --> 0:01:01.320 eleven year deal. So they're like, hey, let's get as 0:01:01.400 --> 0:01:03.840 much money as we possibly can right now. This is 0:01:03.840 --> 0:01:09.560 going to be our last bite of the apple because TNT, ABCSPN, 0:01:10.080 --> 0:01:14.360 they're not going to pay more money going forwards. 0:01:14.920 --> 0:01:19.280 The lawsuit is another chapter in the deteriorating relationship between 0:01:19.319 --> 0:01:23.800 the NBA and Turner Sports, a relationship that's lasted nearly 0:01:23.880 --> 0:01:28.520 forty years. Joining me is entertainment and media lawyer Ronald Beanstock, 0:01:28.880 --> 0:01:32.479 a partner at Scarincy Hollandbeck. What happened here? As far 0:01:32.480 --> 0:01:34.240 as you can make out, this. 0:01:34.120 --> 0:01:36.600 Is what appears to have happened, because there's a lot 0:01:36.600 --> 0:01:39.120 of redactions in the complaints, so it's kind of hard 0:01:39.120 --> 0:01:42.480 to note from the specifics of the agreements prior. But 0:01:42.480 --> 0:01:44.319 I will tell you what I think happened. So this 0:01:44.400 --> 0:01:47.920 is really a fight between tech corporate structure looking to 0:01:47.960 --> 0:01:53.200 find their way into the larger dollars of entertainment properties. 0:01:53.280 --> 0:01:56.120 And you can't get any biggers really in sports versus 0:01:56.240 --> 0:01:59.840 the as the kids would say, old school broadcasting. You've 0:01:59.840 --> 0:02:02.600 got a company P and T here who has had 0:02:02.640 --> 0:02:06.680 the right as a licensee for forty years within their agreement, 0:02:07.040 --> 0:02:09.040 which again a lot of redactions. Hard to know the 0:02:09.120 --> 0:02:12.600 specifics and the definition of the word match right a 0:02:12.800 --> 0:02:15.160 commonly used I don't want to say trope, but a 0:02:15.160 --> 0:02:19.399 commonly used part of entertainment agreement where somebody who has 0:02:19.520 --> 0:02:21.959 rights to something would like to keep those rights to something, 0:02:22.000 --> 0:02:24.440 but they allow a third party to come in make 0:02:24.480 --> 0:02:26.800 the offer and it get the match. That's a discussion 0:02:26.840 --> 0:02:28.960 we have to have. What is the match right, how 0:02:29.040 --> 0:02:31.200 is it defined? And then you know you've got a 0:02:31.320 --> 0:02:35.440 usurper if you will tech company, Amazon, obviously Disney that 0:02:35.520 --> 0:02:38.000 comes in and says, I want to make a really 0:02:38.360 --> 0:02:40.840 great offer to you. I'd like to bring this asset, 0:02:41.080 --> 0:02:43.239 which is called an asset by T and T in 0:02:43.720 --> 0:02:46.200 their complaints. I want to bring this asset to our camp, 0:02:46.440 --> 0:02:48.200 and we think we can do a great job with 0:02:48.360 --> 0:02:50.520 this and the billions of dollars every year, we think 0:02:50.560 --> 0:02:53.160 we can enhance them, do really well with and enhance 0:02:53.240 --> 0:02:57.560 the NBA income and enhance ours obviously, bring bigger and 0:02:57.560 --> 0:03:01.720 better advertising dollars to their format and in subscriptions. And 0:03:01.760 --> 0:03:04.560 we'd like to take an offer on this somewhere. They 0:03:04.600 --> 0:03:07.480 made that offer right. The timing was correct. They made 0:03:07.520 --> 0:03:10.200 the offer, and T and T had two quote match. 0:03:10.680 --> 0:03:13.040 So T and T says we matched, we matched timely. 0:03:13.240 --> 0:03:15.840 That's not in dispute. Seems to be all done correctly. 0:03:15.960 --> 0:03:19.840 But Amazon is saying, and apparently NBA is saying, no, 0:03:20.160 --> 0:03:24.600 you didn't. You didn't match. According to the agreement, we 0:03:24.720 --> 0:03:27.200 have other services or other things we can offer. You 0:03:27.240 --> 0:03:30.600 didn't match that you're only matching the initial offer, and 0:03:30.639 --> 0:03:34.160 that definition of match is one of the crucial discussions 0:03:34.200 --> 0:03:35.640 with billions of dollars at stake. 0:03:36.200 --> 0:03:40.520 I mean, what's the general interpretation of what match means 0:03:40.560 --> 0:03:41.720 in a contract like this? 0:03:42.240 --> 0:03:45.040 So in interesting businesses like this, the match would be 0:03:45.400 --> 0:03:48.120 first right, like a first right refusal. And that's what 0:03:48.160 --> 0:03:50.440 the definition I'm not clear about. No one's clear about, 0:03:50.440 --> 0:03:53.560 because it's contractual language is underdacted from the complaint. But 0:03:53.800 --> 0:03:55.960 there's a real difference here, and that is the difference 0:03:56.000 --> 0:03:59.480 would be between I get to match and the words 0:03:59.520 --> 0:04:02.360 that are using complaint as an incumbent, which is not 0:04:02.440 --> 0:04:06.120 a commonly used word in entertainment property agreement incumbenty, and 0:04:06.240 --> 0:04:08.839 that it says as an incumbent, TBS has the right 0:04:08.960 --> 0:04:13.040 to match any quote third party offer end quote for 0:04:13.120 --> 0:04:17.239 future NBA telecast rights, right to match any third party offer, 0:04:17.279 --> 0:04:20.640 which would indicate to me that it's an initial match right. 0:04:21.000 --> 0:04:23.480 If someone says two hundred and I say I'll give 0:04:23.520 --> 0:04:26.400 you two hundred, I'll match that. Now it stays with me. 0:04:26.960 --> 0:04:30.360 I am, as they call it, the legacy or incumbent here, 0:04:30.400 --> 0:04:33.839 I'm the legacy licenseee. I would maintain my rights. And 0:04:33.960 --> 0:04:36.360 the term length of the next portion of this agreement 0:04:36.360 --> 0:04:40.320 is eleven years. That would be over fifty years of 0:04:40.400 --> 0:04:43.040 retaining rights in terms of a licensee to a piece 0:04:43.080 --> 0:04:46.720 of property like this, And that's probably where everybody is 0:04:46.760 --> 0:04:50.120 fighting this because the tech companies think, if I do 0:04:50.160 --> 0:04:53.479 a better job, So the word match looks like initial match. 0:04:53.920 --> 0:04:58.039 Many times when negotiating entertainment property agreements like this. Music 0:04:58.080 --> 0:05:00.960 business is a good example, music published record deals or 0:05:00.960 --> 0:05:05.839 things of this nature. Licensing deals, we have last match. 0:05:06.520 --> 0:05:09.280 That's a preference of mine because if you say two hundred, 0:05:09.400 --> 0:05:12.760 but that's not the fully ending negotiated deal, I think 0:05:12.800 --> 0:05:14.680 I can get you to three. I don't want you 0:05:14.720 --> 0:05:16.919 to match two. I want you to match the deal 0:05:17.000 --> 0:05:20.080 I'm willing to execute. That would be what the match 0:05:20.160 --> 0:05:23.640 right should say. I don't know because it's been redacted, 0:05:23.960 --> 0:05:26.320 so we'll have to find out as Discovery goes. 0:05:26.160 --> 0:05:29.400 On with the deal with Amazon. The games would be 0:05:29.400 --> 0:05:34.000 distributed across Amazon Prime Video, NBC's broadcast network and Peacock 0:05:34.080 --> 0:05:39.080 streaming service, and Disney ABC and ESPN platforms. So it's 0:05:39.120 --> 0:05:42.680 not just matching the money, is it. It's also matching 0:05:42.760 --> 0:05:43.360 the scope. 0:05:43.600 --> 0:05:45.599 Yes, I think that that's part of the process, and 0:05:45.600 --> 0:05:47.200 I think the match is the scope what can we 0:05:47.240 --> 0:05:51.400 offer in terms of SBOD subscription video on demand. I 0:05:51.400 --> 0:05:55.320 think this is all within the concept of the match, right, 0:05:55.360 --> 0:05:58.160 because I don't think the match was one sentence match. 0:05:58.200 --> 0:05:59.960 I don't think it says here's the money match it. 0:06:00.080 --> 0:06:04.159 I think structurally it's the scope clearly territories worldwide, but 0:06:04.200 --> 0:06:07.240 it's scope in terms of what is we have to 0:06:07.320 --> 0:06:09.800 offer and what platforms. I think that's a part of this. 0:06:10.200 --> 0:06:11.640 I think that they're trying to say you're an old 0:06:11.640 --> 0:06:15.120 school broadcaster, but TNT has other platforms that they get 0:06:15.160 --> 0:06:17.320 to put it onto. MAC So I think these are 0:06:17.320 --> 0:06:20.560 parallel universes colliding. I don't know if they're exactly in 0:06:20.600 --> 0:06:23.040 the same size universe, but I think that they are 0:06:23.640 --> 0:06:28.800 structurally similar because MAX allows the similar version of platform 0:06:28.880 --> 0:06:31.760 structure as Amazon would have as well. 0:06:32.000 --> 0:06:35.360 Suppose the NBA says, you know, we think we'll get 0:06:35.400 --> 0:06:39.359 more viewers with the deal with Amazon, and it's in 0:06:39.440 --> 0:06:43.080 our long term best interests. Can they walk away from 0:06:43.080 --> 0:06:46.520 the deal if somehow TNT says we can give you 0:06:46.560 --> 0:06:50.159 the same kind of exposure and money. 0:06:50.279 --> 0:06:53.040 Someone is looking at this in the long term process, right, 0:06:53.080 --> 0:06:55.880 Someone's saying this is better for us in terms of 0:06:55.920 --> 0:06:59.640 the NBA brand and our largest in the future. Clearly, 0:06:59.680 --> 0:07:02.920 that's what's at stake here. Somewhere in that agreement between 0:07:03.279 --> 0:07:06.719 P and T and the NBA this forty year. That's 0:07:06.760 --> 0:07:10.840 a lengthy relationship which apparently, according to whatever I've seen 0:07:10.840 --> 0:07:12.720 in the press and people that I know, has not 0:07:12.800 --> 0:07:15.000 been the best in the few years that there's been 0:07:15.040 --> 0:07:17.200 a lot of discussion about this, you know, and again 0:07:17.360 --> 0:07:20.360 I'm going to reiterate that point about tech giants versus 0:07:20.360 --> 0:07:24.920 old school broadcasters. There seems to have been a exclusive 0:07:25.360 --> 0:07:29.760 negotiation period that was the precursor to this match. So 0:07:29.840 --> 0:07:33.400 it looked like there was some over the last year. Contractually, 0:07:33.440 --> 0:07:36.800 they were obligated to have not mediation, but a negotiation 0:07:37.440 --> 0:07:39.840 where they would sit in that room and they would 0:07:40.120 --> 0:07:43.080 try to knock out their new agreement. And it didn't work. 0:07:43.280 --> 0:07:44.760 Somewhere in the NBA to keep the people in the 0:07:44.840 --> 0:07:48.080 NBA or the owners whoever was involved, said no, it's 0:07:48.120 --> 0:07:51.480 not structurally sufficient. We think we can do better. We 0:07:51.600 --> 0:07:54.760 think the NBA brand can do better at this different 0:07:54.840 --> 0:07:57.680 set of platforms. But they had that moment and it 0:07:57.680 --> 0:07:58.880 didn't work out well. 0:07:58.920 --> 0:08:01.880 They've asked for a jury try is it difficult to 0:08:02.000 --> 0:08:04.680 line up two different offers like this when it's not 0:08:04.840 --> 0:08:08.080 just money and determine whether it's a real match. 0:08:08.680 --> 0:08:13.040 I don't think it's that's sophisticated. Look this jury trial demand, yes, 0:08:13.080 --> 0:08:14.640 but think about what we've got here. We've got in 0:08:14.640 --> 0:08:17.200 the quest for junct of belief specific performance. I mean, 0:08:17.280 --> 0:08:20.280 everybody's just looking to try to keep it long before 0:08:20.280 --> 0:08:22.320 you get to a jury. But if we get to 0:08:22.400 --> 0:08:25.280 a jury, you know, this to me looks like you 0:08:25.320 --> 0:08:27.640 can put the two offers up on you know, large 0:08:27.640 --> 0:08:30.120 boards in front of a jury and go, there's their offer, 0:08:30.160 --> 0:08:32.640 here's our offer. Look at ours? You see me? Match 0:08:32.720 --> 0:08:34.719 that there it is. I don't think it's hard to 0:08:34.760 --> 0:08:37.480 get in front of a jury. It's not difficult areas 0:08:37.600 --> 0:08:40.920 of law. It's going to be how do you define match? 0:08:41.040 --> 0:08:42.680 And did we do it? And if we did it, 0:08:42.679 --> 0:08:44.400 I'm going to show the jury here here, these two 0:08:44.400 --> 0:08:47.800 pluckers right up here, right here's ours. There's there getting 0:08:47.840 --> 0:08:50.040 to that though, Oh my goodness, we have a long 0:08:50.080 --> 0:08:54.160 way to go. We have all this other stuff we're 0:08:54.160 --> 0:08:55.200 going to have to go through. 0:08:55.679 --> 0:08:59.960 Also, Warner Brothers said that if this isn't settled before 0:09:00.120 --> 0:09:04.439 or the contract expires. They want injunction. Yeah, you think 0:09:04.440 --> 0:09:06.160 a judge would give them that, Well, it. 0:09:06.120 --> 0:09:09.600 Says a lot, But Judge Grant's an injunction that also says, here, 0:09:09.720 --> 0:09:11.400 if a likelihood you're going to run on the barracks, 0:09:11.760 --> 0:09:15.319 that kind of steers things in a different direction. A 0:09:15.480 --> 0:09:16.880 prognosticator is tough. 0:09:17.760 --> 0:09:22.479 Interesting that Turner, in its complaint said that we strongly 0:09:22.559 --> 0:09:26.200 believe that this is not just our contractual right, but 0:09:26.400 --> 0:09:29.080 also in the best interest of fans who want to 0:09:29.160 --> 0:09:32.520 keep watching our industry leading NBA content. 0:09:33.040 --> 0:09:36.760 I want to discuss this T and Keith investment into 0:09:37.040 --> 0:09:39.160 the property they call their asset, which they shouldn't be 0:09:39.200 --> 0:09:42.000 calling its assets, but they do in that complaint. That's 0:09:42.080 --> 0:09:44.440 very telling. They've come to think of it as their own. 0:09:44.760 --> 0:09:50.920 They have a large investment in the NBA broadcasters and 0:09:51.120 --> 0:09:55.319 experts and color commentators. That's a lot of money they've 0:09:55.360 --> 0:09:57.680 got invested, and they've they've been very successful with that. 0:09:57.679 --> 0:10:00.000 I think they've won their own Emmys separately, whatever those 0:10:00.040 --> 0:10:02.520 shows are, you know, I know shows now start before 0:10:02.600 --> 0:10:05.600 the game, during the game, after the game, next week's game, and. 0:10:05.600 --> 0:10:08.440 I knows absolutely they're not ending. 0:10:08.800 --> 0:10:11.920 It's just a perpetual series of commentary. But I think 0:10:11.920 --> 0:10:13.880 that's a huge part of this that they say, look, 0:10:13.920 --> 0:10:16.080 we pay Charles Barkley X and we have the best 0:10:16.080 --> 0:10:18.000 people to do this. Now who you're going to bring 0:10:18.040 --> 0:10:19.960 on to do this? Right? Look at what you've invested 0:10:19.960 --> 0:10:21.679 into this, And I think that's part of this. And 0:10:21.720 --> 0:10:24.040 I think that what they're trying to say in the complaint, 0:10:24.040 --> 0:10:26.800 which leads back to the injunction angle here, is that 0:10:27.000 --> 0:10:29.360 we've got so much invested and look at the terrible 0:10:29.400 --> 0:10:32.319 losses will suffer. Well, I have a hard time. I mean, 0:10:32.640 --> 0:10:35.920 that's forty years. Did you do everything in the forty years? 0:10:35.920 --> 0:10:37.520 I think that's going to come up, right. They're going 0:10:37.600 --> 0:10:40.440 to say they got complacent. Sure, they had these great 0:10:40.440 --> 0:10:43.440 team of experts, these really popular posts, and you know, 0:10:43.520 --> 0:10:47.160 superstar guys and gals. You know, it's interesting to see 0:10:47.160 --> 0:10:49.319 that in the complaint. I want to say, it's a 0:10:49.360 --> 0:10:51.600 woe is me kind of thing, saying how terribly we'll 0:10:51.640 --> 0:10:53.840 be hurt. Sure, that's what complaints say, but that's not 0:10:53.960 --> 0:10:57.360 the point here. Did you match it? Did you follow 0:10:57.400 --> 0:10:59.599 what they had said? I also want to know what 0:10:59.640 --> 0:11:02.920 went for all in that exclusive negotiation period, What happened there, 0:11:03.000 --> 0:11:07.160 and ultimately, if I can be the prognosticator for a second, 0:11:07.360 --> 0:11:09.640 you know, if it doesn't work out, there may be 0:11:09.679 --> 0:11:12.760 a split. The baby here it is State Court is 0:11:12.800 --> 0:11:14.760 State Supreme in New York, So this won't be the 0:11:14.760 --> 0:11:17.080 first time anybody does something like this. They may say, 0:11:17.440 --> 0:11:19.719 you know what, for the first three years, we may 0:11:19.800 --> 0:11:22.120 give key games to stay with T and T and 0:11:22.160 --> 0:11:24.679 their team, and then regular season games X, Y, and 0:11:24.760 --> 0:11:26.760 Z will go over here, and then eventually we're going 0:11:26.840 --> 0:11:31.120 to morph this all entirely over to the new licensee. 0:11:31.240 --> 0:11:34.280 That may be how this gets done. Nobody, particularly the 0:11:34.360 --> 0:11:37.400 NBA and TNT. Nobody's going to want to have this 0:11:37.520 --> 0:11:40.880 extend past even the preseason, so I think they're going 0:11:40.960 --> 0:11:44.760 to have to figure out methodologies to compromise at some point. 0:11:44.880 --> 0:11:46.960 It's not like they're going to postpone the season, So 0:11:47.400 --> 0:11:49.120 I think that the issue is going to start to 0:11:49.120 --> 0:11:51.200 come up pretty fast and furious. This is not just 0:11:51.320 --> 0:11:53.640 rocket docket as in the federal system. This is going 0:11:53.720 --> 0:11:55.680 to be oh boy, we got to move this along. 0:11:56.080 --> 0:11:59.280 There's billions and billions to stake here, and this is 0:11:59.280 --> 0:12:02.240 one of the most valuable properties and entertainment biz in 0:12:02.320 --> 0:12:04.600 the world, and we need to get this moving along. 0:12:05.000 --> 0:12:10.280 Are courts reluctant to force someone into a deal they 0:12:10.320 --> 0:12:11.200 don't want to be in? 0:12:12.040 --> 0:12:16.920 Yes, simplest answer I can give. Yeah, that's a common discussion. 0:12:17.200 --> 0:12:19.720 Like I said back in entertainment properties, if an artist 0:12:19.800 --> 0:12:22.440 wants off a label, the judge's going to say, how 0:12:22.440 --> 0:12:25.120 do you guys getting along? Oh? Terribly? Okay, Now I 0:12:25.200 --> 0:12:27.360 want you guys back together, shake hands, Come on, you 0:12:27.400 --> 0:12:30.560 can put it back. Never happens. It never happens that way. 0:12:30.600 --> 0:12:34.880 There's always some override, similar to the theory here of 0:12:34.920 --> 0:12:37.679 certain games being split up. There may be an override 0:12:37.720 --> 0:12:39.520 on structure of money. There may be a way to 0:12:39.800 --> 0:12:42.280 know UO two records to this person, Oh you owe 0:12:42.320 --> 0:12:45.600 five songs to this publisher. Oh you owe twelve episodes 0:12:45.640 --> 0:12:49.080 the original production company. Yeah, we do that to get 0:12:49.200 --> 0:12:53.000 through the process. So we don't kill the golden goose here. 0:12:53.360 --> 0:12:56.360 Enter Human properties take decades, if not lifetimes to develop 0:12:56.440 --> 0:12:58.840 like this, and so nobody wants to hurt that just 0:12:58.880 --> 0:13:01.400 when it's probably coming off an Olympic high right now. 0:13:01.840 --> 0:13:03.720 So I think that they're going to be ways we 0:13:03.800 --> 0:13:07.800 get this resolved that may not be in the standard methodology. 0:13:07.880 --> 0:13:10.280 I think there's gonna be a lot of meetings and chambers. 0:13:10.320 --> 0:13:11.720 I think there's gonna be a lot of meetings with 0:13:11.760 --> 0:13:15.040 everybody just discussing how to make this work. But it's 0:13:15.040 --> 0:13:17.079 can be a fascinating couple of months. 0:13:17.440 --> 0:13:20.760 So you think that there might be a settlement before 0:13:20.800 --> 0:13:24.240 this gets more serious, before it goes to a jury 0:13:24.320 --> 0:13:25.720 or a judge makes a decision. 0:13:26.400 --> 0:13:28.920 I think there's a possibility there's going to be a 0:13:29.480 --> 0:13:34.000 series of workaround to try to satisfy some immediacy for 0:13:34.520 --> 0:13:36.920 T and T. But I think eventually there's going to 0:13:36.960 --> 0:13:41.480 be a transition unless everything has gone wrong. From the 0:13:41.520 --> 0:13:45.040 Amazon point of view, in terms of where the match 0:13:45.240 --> 0:13:48.920 was and how you define match, it sounds like the 0:13:48.960 --> 0:13:52.680 timeliness was there had an exclusive negotiation process that preceded it, 0:13:52.960 --> 0:13:56.559 and it sounded like something happened in that definitional process. 0:13:56.720 --> 0:14:00.280 Somebody says, we did it the other side, NBA, No 0:14:00.559 --> 0:14:03.160 you didn't do that. No it didn't. Is it based 0:14:03.240 --> 0:14:06.360 upon as you and I just discussed, the variable platforms 0:14:06.360 --> 0:14:09.319 and the extensive nature of the other digital platform It's 0:14:09.320 --> 0:14:11.120 hard to know. The redactions make it hard to know 0:14:11.440 --> 0:14:14.880 because at the end of the complaint June. There is 0:14:14.920 --> 0:14:19.880 a series of redactions where it's effectively saying the Amazon 0:14:20.000 --> 0:14:22.600 offer they figured a way around it. And that's the 0:14:22.680 --> 0:14:25.680 kind of language you see in the complaint. They found 0:14:25.720 --> 0:14:28.560 a way around it here. They did something here that 0:14:29.040 --> 0:14:31.440 wasn't in good faith. It's a bad faith effort to 0:14:31.480 --> 0:14:36.560 deprive TBS of its contractual right. That's pretty hefty redacted 0:14:36.880 --> 0:14:39.080 in the complaint. We don't know what the language was, 0:14:39.400 --> 0:14:43.640 but they're saying they caused the match to be rejected. 0:14:43.840 --> 0:14:45.240 Has to be proof of that. What did they do? 0:14:45.560 --> 0:14:47.720 Where is that here? You know where? If that's the enter? 0:14:47.800 --> 0:14:48.280 What did they do? 0:14:48.600 --> 0:14:48.720 So? 0:14:48.760 --> 0:14:51.080 What was so crasty about these guys that they were 0:14:51.120 --> 0:14:53.280 able to convince them that they can get around the match? 0:14:53.360 --> 0:14:53.520 Right? 0:14:53.680 --> 0:14:55.440 That's redacted. We're gonna have to go find out once 0:14:55.440 --> 0:14:58.760 this proceeding really gets rolling to me. In the last overview, 0:14:59.200 --> 0:15:01.400 it could have been that if Aready got complacent on 0:15:01.440 --> 0:15:03.320 the TBST and T side could have been I mean, 0:15:03.360 --> 0:15:05.920 they had this property for forty years. It could have 0:15:05.920 --> 0:15:08.040 been I don't know, maybe they got complacent, Maybe they 0:15:08.040 --> 0:15:10.960 could have done more, Maybe they weren't pushing the brandess 0:15:11.000 --> 0:15:13.040 as well. Long as they could. I mean, these are 0:15:13.080 --> 0:15:15.520 growth issues that the NBA has access to that are 0:15:15.560 --> 0:15:17.960 not a part of the record. But I started out 0:15:18.000 --> 0:15:19.640 by saying, I'm going to stay with it. This is 0:15:20.080 --> 0:15:22.520 the invasion of the tech companies, and they're coming for 0:15:22.600 --> 0:15:25.320 the old school broadcasters, and they think that they could 0:15:25.360 --> 0:15:29.120 grab up these multi billion dollar properties and do something 0:15:29.160 --> 0:15:32.040 new with them and gives them a lot of cloud. 0:15:32.160 --> 0:15:35.600 We're not just delivering pactors anymore. Right, We've got entertainment 0:15:35.680 --> 0:15:37.920 properties and we're going to have a long term, eleven 0:15:38.000 --> 0:15:41.600 year deal on one of the most important entertainment sports 0:15:41.640 --> 0:15:43.000 properties in the world. 0:15:43.240 --> 0:15:46.720 I may use that line, We're not just delivering packages anymore. 0:15:47.360 --> 0:15:50.840 Thanks so much for being on the show. That's Ronald Beanstock, 0:15:51.000 --> 0:15:55.160 a partner at Scarincy Holland Beck. Coming up next. Why 0:15:55.200 --> 0:15:58.880 federal agencies are losing more court battles since the Supreme 0:15:58.960 --> 0:16:05.520 Court's term. This is Bloomberg. Last term, the Supreme Court 0:16:05.680 --> 0:16:09.440 changed the landscape for federal agencies when it threw out 0:16:09.480 --> 0:16:13.200 a forty year old precedent known as Chevron deference, which 0:16:13.280 --> 0:16:19.200 required that courts deferred to reasonable agency interpretations of ambiguous laws. 0:16:19.520 --> 0:16:23.040 The effects can already be seen in federal court rulings 0:16:23.240 --> 0:16:27.160 since that June decision called loeper Bright. According to a 0:16:27.160 --> 0:16:31.040 Bloomberg Law review of rulings on agency actions, in the 0:16:31.080 --> 0:16:36.560 month after that decision, federal judges ruled against agency interpretations 0:16:36.600 --> 0:16:40.840 in thirteen out of twenty decisions, including orders that blocked 0:16:40.920 --> 0:16:46.080 rules prohibiting discrimination against transgender people in health care and education, 0:16:46.600 --> 0:16:50.760 and that blocked rules banning worker non compete agreements. And 0:16:50.880 --> 0:16:55.240 in all those cases save one, the federal judges reviewing 0:16:55.360 --> 0:16:59.400 the agency actions had not even used a milder form 0:16:59.440 --> 0:17:02.720 of defferences to the government an eighty year old president 0:17:02.840 --> 0:17:07.119 called Skidmore deference, which the Supreme Court said could be used. 0:17:07.480 --> 0:17:10.879 Joining me is an administrative law expert. Carrie Coliniese, a 0:17:10.920 --> 0:17:14.320 professor at the University of Pennsylvania Law School. Will you 0:17:14.400 --> 0:17:17.080 explain what Skidmore deference is? 0:17:17.400 --> 0:17:17.680 Sure? 0:17:17.760 --> 0:17:17.920 So? 0:17:18.080 --> 0:17:20.880 I think the best way to really explained Skidmore difference 0:17:21.000 --> 0:17:24.680 is by reference to what Chevron difference was, because it's 0:17:24.720 --> 0:17:28.600 helpful to know what Skidmore difference is not, and it's 0:17:28.680 --> 0:17:34.439 not Chevron difference. The Chevron difference is where courts in 0:17:34.440 --> 0:17:37.960 cases where the statute is ambiguous and the agency is 0:17:38.000 --> 0:17:42.879 a reasonable interpretation of the statute, Courts are obligated to 0:17:42.920 --> 0:17:48.359 accept the agency's reasonable interpretation. There's actually a duty to 0:17:49.560 --> 0:17:53.680 follow what the agency says. The idea being that Congress 0:17:53.720 --> 0:17:58.879 has delegated, even implicitly, the authority to the agency to 0:17:59.000 --> 0:18:04.080 determine what ambiguous that she means, and courts must follow it. 0:18:04.160 --> 0:18:07.680 Get more difference now goes back to a decision forty 0:18:07.760 --> 0:18:12.080 years prior to Chevron. Chevron was decided in nineteen eighty four. 0:18:12.880 --> 0:18:16.280 It's now just been overturned in twenty twenty four, forty 0:18:16.320 --> 0:18:18.440 years later. But if you go without sort of forty 0:18:18.520 --> 0:18:21.880 years before kind of symmetry, here, we can see a 0:18:22.000 --> 0:18:27.159 Supreme Court's decision called Skidmore that articulated a type of 0:18:27.320 --> 0:18:33.160 deference that's similar when that she's are ambiguous, but it's 0:18:33.240 --> 0:18:38.359 not mandatory that courts follow what the agencies have decided. 0:18:38.760 --> 0:18:43.320 Get more difference is known as difference that follows from 0:18:43.520 --> 0:18:49.439 agency's power to persuade. If the court reviewing an agency's 0:18:49.480 --> 0:18:54.359 interpretation finds that, on the basis of the agency's expertise 0:18:54.680 --> 0:18:59.960 and the thoroughness of its investigations, that well, the agency 0:19:00.080 --> 0:19:04.119 he's probably right, then it can go ahead and defer 0:19:04.280 --> 0:19:09.119 to the agency, but it's not obligated to do so. 0:19:09.800 --> 0:19:14.160 And that's the real difference here. What the Court did 0:19:14.240 --> 0:19:17.480 this year in Low for Bright was to return us 0:19:17.560 --> 0:19:21.879 back to a world eighty years ago, which was the 0:19:22.000 --> 0:19:27.800 world dominated by skidmore difference, where courts could follow what 0:19:28.320 --> 0:19:31.320 the agency said if they had the power to persuade 0:19:31.760 --> 0:19:34.280 the court that they were right. I don't know. If 0:19:34.280 --> 0:19:38.800 your audience is highly technical and filled with a lot 0:19:38.800 --> 0:19:41.520 of lawyers, I could actually give another analogy that I 0:19:41.560 --> 0:19:46.080 think claims did more difference well for lawyers. Okay, if 0:19:46.240 --> 0:19:49.520 we go back to a world back in the common law, 0:19:49.800 --> 0:19:53.719 where courts were deciding all sorts of questions, courts had 0:19:53.760 --> 0:19:58.560 to follow precedents of prior court decisions, and the Pennsylvania 0:19:58.800 --> 0:20:03.320 Supreme Court, let's say, needed to follow prior decisions of 0:20:03.359 --> 0:20:07.920 the Pennsylvania Supreme Court unless or until they overruled themselves. 0:20:08.080 --> 0:20:11.959 Binding precedent followed when you were in the same state 0:20:12.320 --> 0:20:16.200 with the same court. However, it was always the case, 0:20:16.200 --> 0:20:19.040 and it still is always the case. Say a Pennsylvania 0:20:19.080 --> 0:20:23.320 Supreme Court could look to the decisions of the Ohio 0:20:23.400 --> 0:20:28.080 Supreme Court or the Florida Supreme Court in deciding very 0:20:28.080 --> 0:20:32.960 similar cases, and they weren't obligated to follow what the 0:20:33.040 --> 0:20:37.359 Ohio or the Florida courts decided, but they might be 0:20:37.440 --> 0:20:41.600 persuaded by what the courts in Ohio and Florida decided. 0:20:41.880 --> 0:20:45.679 And that's the way to think about Gidmore deference is 0:20:46.359 --> 0:20:50.399 not mandatory to follow it, but it is an option 0:20:50.640 --> 0:20:52.880 if a court is persuaded. 0:20:53.640 --> 0:20:57.080 In the opinion in Low ur Bright, the Chief Justice 0:20:57.320 --> 0:21:01.719 John Roberts invoked the skid defense a couple of times. 0:21:01.840 --> 0:21:04.879 What was his position on it? Was he telling courts 0:21:05.000 --> 0:21:05.360 use this? 0:21:06.080 --> 0:21:10.320 He says, it's available. It's still available. Why because it's 0:21:10.320 --> 0:21:14.720 a doctrine that still puts the court in the driver's seat, 0:21:14.800 --> 0:21:18.280 because it's the court that gets to decide whether they 0:21:18.520 --> 0:21:21.680 think it's appropriate to refer to the agency, whether they're 0:21:21.720 --> 0:21:26.240 persuaded that the agency has the best interpretation of the statute. 0:21:26.800 --> 0:21:30.800 And Chief Justice Roberts, in the majority opinion in moper Bright, 0:21:30.920 --> 0:21:36.280 says that's fine in agencies, he says, are still deserving 0:21:36.480 --> 0:21:42.320 of respectful consideration for their views. So a court should 0:21:42.640 --> 0:21:48.640 certainly hear agencies out, and if they are persuaded, then 0:21:49.359 --> 0:21:52.160 sure they follow them. You know, some people would say 0:21:52.160 --> 0:21:55.520 it's not really a difference at all. It's what's always 0:21:55.560 --> 0:21:58.639 there for any litigant. If you persuade the josh that 0:21:58.760 --> 0:22:02.439 you have the best interpret the judge will agree with you. 0:22:02.680 --> 0:22:06.400 And so it may not really give agencies a whole 0:22:06.440 --> 0:22:09.600 lot of weight behind what they do. But you know, 0:22:09.680 --> 0:22:11.960 the reality, of course, is that a lot of these 0:22:12.040 --> 0:22:16.320 cases arise under statutes and with issues that are very technical, 0:22:17.040 --> 0:22:22.359 and judges did before Chevron side with agencies, you know, 0:22:22.480 --> 0:22:26.119