The federal trial between ESPN and MLB starts Monday in
Manhattan, and the N.Y. TIMES' Richard Sandomir reports that
ESPN wants to keep its contract "intact." At the "heart" of
ESPN's case is its charge that MLB "unreasonably withheld
its approval to pre-empt the Sunday night games in September
1998 and 1999 for events of 'significant viewer interest,'
or N.F.L. games." Sandomir reports that in a pretrial
hearing last week, U.S. District Judge Shira Scheindlin
"repeatedly tried to persuade" MLB attorney Robert Kheel to
"quantify how much baseball was damaged" by ESPN moving
games to ESPN2. Scheindlin asked for a dollar figure, but
Kheel "repeated that he could not provide a sum because it
was impossible to place a number on being bumped off the
network you contracted to show your games on." He added
that if ESPN had negotiated a pre-emption right, then he may
"have a figure." But Scheindlin noted that ESPN had paid
its $36M rights fee and said, "How do you qualify hurt?
Because hurt sounds to me a little bit like hurt ego, hurt
feelings." Kheel later said that MLB's "hurt" constituted
5% of ESPN's $30M game fee to the NFL (three September
games), or around $4.5M. Scheindlin ruled that MLB "would
not be eligible for major damages. If victorious, it would
receive only a nominal sum." Meanwhile, Scheindlin also
ruled that the jury during the trial can "hear evidence that
baseball's refusal to approve the transfer of games to ESPN2
was unreasonable." The evidence is in two letters written
by MLB to ESPN during settlement discussions that proposed
large increases in ESPN's fee (N.Y. TIMES, 11/30).
