The NBA has fired another salvo against a longtime broadcast partner whose impending divorce from the league has spawned a major legal battle.
The NBA on Wednesday filed a brief urging New York Judge Joel M. Cohen to dismiss TBS and Warner Bros. Discovery’s breach of contract lawsuit. The brief responds to a recent filing by the plaintiffs in which they attempt to convince Cohen to deny the NBA’s motion to dismiss.
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The lawsuit revolves around a fundamental question: Did the NBA lawfully determine that TBS failed to match Amazon’s offer to broadcast games from 2025-26 through 2035-36?
The NBA and TBS have offered competing interpretations of contract law, specifically what counts as a “match” and what is better understood as a “counteroffer.”
Through Richard C. Pepperman II and other attorneys from Sullivan & Cromwell as well as NBA executives Richard W. Buchanan and Daniel J. Spillane, the NBA argues that under the “unambiguous terms” of the NBA/TBS contract signed in 2014, TBS “had no right” to match Amazon’s offer to distribute games versus streaming.
The league adds that even if TBS did possess such a right, it failed to successfully invoke it.
“TBS revised eight of the Amazon offer’s 27 sections, changed 11 definitions, struck nearly 300 words, and added over 270 new words,” the NBA wrote. “Plaintiffs’ redline was a counteroffer, not a match. That should be the end of this case.”
To that point, the NBA says that TBS could have matched a term in Amazon’s offer wherein Amazon pledged to promote NBA telecasts during Thursday Night Football. According to the NBA, TBS could have matched that term by simply negotiating advertising deals for Thursday Night Football.
In what the NBA describes as TBS’ counteroffer (TBS calls it a match), TBS inserted a “major sporting league” event, rather than necessarily Thursday Night Football, as an acceptable condition for promoting NBA telecasts. That alteration, the NBA maintains, substantively changed Amazon’s term. “Thursday Night Football” presumably means “Thursday Night Football” rather than NASCAR races, regular season MLB and NHL games, and other possible sporting events that are not, the NBA says, “commercially equivalent” to TNF.
The NBA adds other arguments, including its position that TBS lacks contractual authority to distribute NBA games separate from TNT. That is why, the NBA contends, TBS “needed” a “separate Digital Rights Agreement” (DRA). The DRA, which contains no matching right, permitted “Bleacher Report to distribute individual TNT telecasts of NBA games via Max, WBD’s SVOD service.” The NBA insists that if their agreement with TBS gave TBS the right to distribute games on Max, “the DRA would have been unnecessary.”
The NBA also emphasizes that Amazon’s offer “did not allow for distribution via cable television.” TBS’ attempt to match the Amazon offer “changed its terms to permit exactly that,” which the NBA contends “invalidated” TBS’ attempted match.
The brief also portrays TBS as attempting to overcomplicate and convolute what the league says is relatively straightforward language. The plaintiff is accused of doing so to suggest there is a meaningful interpretive dispute that ought to advance the case past a motion to dismiss so there can be further clarification.
For example, the NBA takes issue with TBS “repeatedly” noting its matching rights “extend” to a “subset of TBS’ Cable Rights.” The league maintains Amazon’s offer contemplates rights that are not any “subset” of cable rights since, in the context of a streaming service, “they are not cable rights at all.”
Similarly, the NBA stresses that Prime Video “is an Internet streaming service,” whereas “TNT is a cable television network.” And, as the NBA tells it, its agreement with TBS from a decade ago uses the term “distribution” to mean method of transmissions—and not which device a person uses to watch the transmission.
Further, the NBA contends that WBD “is not a proper party” for the litigation. Although WBD has agreed to guarantee TBS’ payments, it allegedly “lacks standing to enforce its subsidiary’s contractual rights.”
As detailed in previous stories, TBS and WBD have raised counterarguments. Should Cohen advance the litigation, it is expected to go to trial next April.
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