NBA Files Motion to Dismiss Warner Bros. Discovery Lawsuit
NBA Files Motion to Dismiss Warner Bros. Discovery Lawsuit
The league is arguing that WBD cannot use its matching rights for Amazon’s package since Prime Video offers a streaming-only distribution.
The lawsuit filed by Warner Bros. Discovery as a last-ditch effort to keep NBA rights is proceeding on schedule. The company says its contractually-guaranteed matching rights which it tried to exercise to swipe the NBA’s “C” rights package was improperly disregarded by the league and is now suing to try to get the court’s agreement. The NBA officially filed a motion to dismiss the lawsuit on Friday, holding to its position that WBD’s matching attempt was not a true meeting of Amazon’s terms.
Key Details:
- The NBA is arguing that a dollar-for-dollar match of its Prime Video package is not a true match attempt by WBD.
- WBD’s attempt to change Amazon’s deal terms constitutes a counteroffer, not a matching offer, according to the NBA.
- WBD should have tried to match NBC’s offer for the “B” rights package if it wanted to continue distributing NBA games, the league is arguing.
The NBA’s motion to dismiss reveals more details about why it rejected WBD’s matching offer and pivoted to Amazon to distribute its “C” package. As the league has been arguing for months, the motion explains that Prime Video’s reach is greater than WBD’s and that the streaming-only distribution method that Amazon plans to use is superior to the combined streaming and linear distribution methods of TNT and Max.
The 28-page motion from the Association also says that WBD made significant changes to the terms accepted by Amazon, which further constitutes a failure to match the offer as presented. The NBA alleges that WBD made “substantive revisions to eight of the Amazon offer’s 27 sections (including revisions to 22 different subsections), changed 11 defined terms that are collectively used roughly 100 separate times, struck nearly 300 words, and added over 270 new words, substantively altering the parties’ rights and obligations in the process.
“Controlling New York law forecloses TBS’s attempt to rewrite the terms of Amazon’s offer and then ‘accept’ those rewritten terms. Far from accepting each term of Amazon’s offer, TBS’s revisions constituted a counteroffer that the NBA was free to reject,” the league concluded.
“In its purported match of the Amazon offer, [WBD] also changed—and thereby failed to accept—numerous other substantive terms … with each of these changes representing an independent basis for concluding that it has failed to make a proper match,” NBA attorney Bill Koenig wrote.
What Comes Next in NBA Lawsuit?
According to the schedule laid out when WBD first filed its suit to try to keep the NBA, it now has until Sept. 20 to respond to the NBA’s dismissal motion. At that point, the league has until Oct. 2 to make further reply in support of its request.
Amazon has offered a total of $1.93 billion per season for the NBA’s “C” package, which includes regular season games, playoff rights including one conference finals series in alternating years, and exclusive rights to the new In-Season Tournament. WBD opted to try and match this package, as company CEO David Zaslav considers the $2.5 billion that NBCUniversal offered for the league’s “B” package an overpay.
That offer was also included in the NBA’s argument for why the case should be dismissed. In its motion, it said that the dual streaming and linear distribution included in NBC’s offer was a more appropriate match for WBD to try to make since it wants to offer games via TNT and its streaming service Max.
“TBS chose not to match NBCU’s offer, which would have enabled TBS to continue distributing games via its TNT linear cable network,” the NBA wrote. “Instead, TBS purported to match the less expensive Amazon offer but only after revising it to include traditional television distribution rights and making numerous other substantive changes.”
WBD has already made several moves that seemingly point to the eventuality that it will lose the case. The company has made numerous live sports acquisitions in recent months, and last week it was announced that two new scripted dramas were headed to TNT. Charles Barkley recently released a statement saying he would be involved with TNT for the long term no matter what happens with the NBA, despite earlier promises to retire if the league departs TNT airwaves after the 2024-25 season.
That season is due to start on Oct. 22, and if the NBA’s motion to dismiss is rejected the case could drag on far past the beginning of play.
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