In a new memorandum of law, TBS and Warner Bros. Discovery contend the NBA has bricked its shot for dismissal of their breach of contract lawsuit over the loss of the right to telecast NBA games.
The 33-page memorandum was filed on Sept. 20 and aims to convince New York Judge Joel M. Cohen to deny the NBA’s motion to dismiss, which Sportico analyzed last month. The case centers on the NBA’s determination that TBS failed to match Amazon’s offer to broadcast games from 2025-26 through 2035-36. The plaintiffs insist TBS had the right to match the Amazon offer, TBS matched the offer, and the NBA acted in bad faith to (allegedly) “circumvent TBS’s matching rights.”
Signed by attorney David L. Yohai on behalf of himself and other attorneys from the law firms Weil, Gotshal & Manges and Hausfeld, the memo focuses on why a dismissal of “multi-billion-dollar issues” is allegedly unwarranted. In other words, the memo’s goal is not to win the case but to get the case past a motion to dismiss, at which point the parties would share evidence and provide sworn testimony as part of discovery.
Cohen, the plaintiffs stress, should deny the NBA’s motion to dismiss if their complaint offers allegations that, if true, state a claim for which the court could grant relief. The memo cites precedent for the principle that a motion to dismiss should be denied if factual allegations “manifest any cause of action cognizable at law.” To that end, the memo claims that none of the matching rights cases cited by the NBA in support of dismissal was dismissed at the pleading stage and instead “were decided on an evidentiary record.”
TBS and WBD argue that the two sides disagree about key facts concerning TBS’s matching rights. The NBA maintains that TBS’s current arrangement (signed in 2014) lacks the right to distribute live NBA games on a standalone basis via streaming and is instead limited to linear cable TV. From that lens, TBS couldn’t credibly match Amazon’s offer. But in their memo, TBS and WBD assert the NBA “conjured up” the term “standalone rights” as part of the litigation and the term “appears nowhere in the [2014] Agreement or in the NBA’s letter rejecting TBS’s match.” The plaintiffs also argue TBS has the right under the 2014 agreement to distribute games via the Internet.
TBS and WBD further maintain the parties disagree about important facts relating to whether TBS matched the Amazon offer consistent with a matching rights clause. To that end, the plaintiffs assert that Amazon—which the memo underscores “prominently markets” and portrays Prime Video as “television”—and TBS are not so different. TBS agreed to distribute games “on both TNT and Max,” which the plaintiffs say are capable of distribution “in the same ways and to the same devices as Prime Video.” Transmittal of content via the Internet to televisions, TBS and WBD further charge, “is a form of television distribution” as defined in the matching rights clause.
In addition, TBS and WBD maintain questions about whether the NBA “acted in bad faith to circumvent TBS’s matching rights” warrant a closer look. The plaintiffs argue that the NBA included certain terms in its deal with Amazon that it knew TBS couldn’t match. For example, one clause requires that NBA games be shown on a platform that also shows NFL games (TBS/WBD do not have an NFL contract). The NBA can obviously argue that a contractual term in which NBA games must appear on a network that airs the most watched sports league is simply a smart business decision and not bad faith. But the plaintiffs would respond that the topic warrants further scrutiny and shouldn’t be tossed at the dismissal stage.
Cohen will review the dueling briefs and render a decision. Should the case advance, court records indicate a trial is expected to be held sometime in April 2025. As they litigate against the NBA in court, TBS and WBD (through TNT) will broadcast NBA games during the 2024-25 season.
