MASN dispute update

[spiritof66]

I've read the two articles cited in this string. There are no publicly available documents on the Court of Appeals website. If you're interested or dubious, you can search the Court of Appeals website, www.nycourts.gov/ctapps/courtpass/Docket.aspx , under the case number APL-2017-00146.  

Explaining what I think has happened requires some  background. (If you don't care about any of that, you can skip down to the last two paragraphs, starting with "So what happens next?") As required by the 2015 settlement agreement, when MASN and the Nationals could not agree on post-2011 rights fees to be paid to the Nats, MLB's Revenue Sharing Definitions Committee acted as an arbitration panel to decide those fees. MASN (and I'll use MASN to mean both MASN and the Orioles entities) sued to have that arbitration decision thrown out on various grounds. The trial court judge agreed with MASN that the decision should be vacated because of the RSDC's evident partiality, but agreed with the Nats that the rights fees could be determined by another arbitration before the RSDC. 

Both sides appealed, and the appeals were heard by a five-judge panel of  the Appellate Division, NY's intermediate appeals court. All five judges agreed with MASN (and the trial court) that the RSDC's decision should be thrown out. Three judges agreed with the Nats that the RSDC should re-decide the dispute -- two because they decided that MASN had not met the extremely high standard for persuading a court to appoint arbitrators other than those agreed to by the parties, and the third decided that courts have no legal authority to do that. The other two judges agreed with MASN that the rights fees should be set by arbitrators other than the RSDC in light of that body's spectacularly shoddy record of unfairness.

MASN is trying to appeal the Appellate Division's ruling that the RSDC will hear the future rights fees  arbitratios. That appeal would be heard by the Court of Appeals, NY's highest court. The Court of Appeals is required by NY law to hear some appeals, and as to others it can decide whether to hear the appeal, much like the U.S. Supreme Court. Among the appeals that it must hear are those in cases where two appellate judges dissented "on a question of law in favor of the party taking the appeal" (that is, MASN), and decisions that "directly involved the construction of the [NY or US] Constitution." 

My assumption was that MASN would assert the right to appeal on the "double-dissent" ground. But the recent articles say MASN sought to appeal on Constitutional grounds,. I am guessing from the press reports that MASN decided it did not have the right to a "double-dissent" appeal since the  two dissenters' disagreement with two judges was not "on a question of law," but on whether the facts presented by MASN were sufficient to entitle it to a hearing by an arbitration body other than the RSDC, and that MASN instead argued that there was some constitutional issue raised by the RSDC's misconduct as described in the dissent. What apparently happened on Thursday is that the Court of Appeals decided that MASN had no right to appeal on whatever grounds it argued, and issued an SSD, or sua sponte dismissal , dumping MASN's claim that it had a right to appeal. If that's what happened, I think it was a dubious decision by MASN, other than as a delaying tactic, but that's my best shot at deciphering what happened. 

So what happens next? While the rules are complex, I am pretty sure MASN can now ask (by making a formal motion) either the Appellate Division or the Court of Appeals for permission to appeal the Appellate Division's decision to the Court of Appeals. I expect that MASN will go first to the Appellate Division (where it will need  three of the five judges on the panel voting in favor of allowing an appeal) and, if that fails, to the Court of Appeals (where it will need at least two judges voting to hear the appeal). Because the courts don't explain why they grant or turn down these motions, the reasons for granting or denying leave to appeal are mysterious. In general, having the right to appeal granted by the Court of Appeals is a longshot, occurring in about 5 percent of cases in which it's sought. It would seem very unlikely that the Court of Appeals would want to get into the details of this private dispute, which raise no  widely applicable issues of NY law. The likelihood is that this goose is pretty well cooked. But who knows?

In any event, all this will take a while, and that seems to be MASN's -- meaning the Orioles' -- game plan. Kind of like talking to Manny about a contract extension: just put it off as long as possible.

 

 

 

[Frobby]

Thanks for that explanation.    I wonder if the 3-2 split, even if not on an issue giving right to an automatic right of appeal, might still be a significant factor in the judges’ decision about whether to have the case heard on a discretionary basis.    I guess we’ll see — eventually.

[spiritof66]

41 minutes ago, RZNJ said:

I don't know anything about this stuff and don't understand like you guys.  My gut feeling is that eventually the O's are going to lose this but Angelos is going to drag this out and hope mlb and the Nationas try to settle. 

I think that's right, though I'm not sure whether the Orioles are making progress toward the end game of a somewhere-in-the-middle settlement .

In thinking about what incentives the Nationals and MLB have to settle, I have been  surprised that, so far as I can tell, MLB and Manfred have taken no heat from having five judges say that MLB acted arrogantly in presiding over an unfair arbitration, and two of the five have basically said that MLB screwed the Orioles. The media don't seem to care. 

[spiritof66]

18 hours ago, Frobby said:

Thanks for that explanation.    I wonder if the 3-2 split, even if not on an issue giving right to an automatic right of appeal, might still be a significant factor in the judges’ decision about whether to have the case heard on a discretionary basis.    I guess we’ll see — eventually.

Nobody knows how these decisions (the granting of discretionary appeals) get made. I sure don't.

My guess is that if the Orioles have anything going for them, it's the vigor of a dissent written by the widely respected Presiding Justice of that court (and three-time All-Ivy pitcher and lifelong NYY fan) and joined in by another judge known for her strong intellect. 

 

[Frobby]

On 11/20/2017 at 2:20 PM, Frobby said:

Thanks for that explanation.    I wonder if the 3-2 split, even if not on an issue giving right to an automatic right of appeal, might still be a significant factor in the judges’ decision about whether to have the case heard on a discretionary basis.    I guess we’ll see — eventually.

 

On 11/21/2017 at 8:33 AM, spiritof66 said:

Nobody knows how these decisions (the granting of discretionary appeals) get made. I sure don't.

My guess is that if the Orioles have anything going for them, it's the vigor of a dissent written by the widely respected Presiding Justice of that court (and three-time All-Ivy pitcher and lifelong NYY fan) and joined in by another judge known for her strong intellect. 

 

So, I wasn’t aware of it, but in January the 1st Appellate Division denied MASN’s motion for leave to appeal to the NY Court of Appeal.    That means that the 1st Appellate Division’s earlier decision stands for now, and it has been reported that the re-hearing of the rights fee dispute before MLB’s Revenue Sharing Definitions Committee (RSDC) will take place next month. The three members of the RSDC have all changed over since the previous hearing in 2012.     So, we’ll see if the outcome is any different this time.

[Eddie_Ripken]

5 hours ago, Frobby said:

 

So, I wasn’t aware of it, but in January the 1st Appellate Division denied MASN’s motion for leave to appeal to the NY Court of Appeal.    That means that the 1st Appellate Division’s earlier decision stands for now, and it has been reported that the re-hearing of the rights fee dispute before MLB’s Revenue Sharing Definitions Committee (RSDC) will take place next month. The three members of the RSDC have all changed over since the previous hearing in 2012.     So, we’ll see if the outcome is any different this time.

Will there actually ever be an end to this dispute? I have the feeling this is just going to drag on for years. Is there anything that would make it come to a concrete closure? Or will it always just be appealed back and forth?

[Can_of_corn]

Just now, Eddie_Ripken said:

Will there actually ever be an end to this dispute? I have the feeling this is just going to drag on for years. Is there anything that would make it come to a concrete closure? Or will it always just be appealed back and forth?

The team being put on the market/sold.

[Frobby]

1 hour ago, Eddie_Ripken said:

Will there actually ever be an end to this dispute? I have the feeling this is just going to drag on for years. Is there anything that would make it come to a concrete closure? Or will it always just be appealed back and forth?

The short answer is, MASN started it by challenging the previous award in court.    They didn’t have to.   The Nats were probably not very happy with the outcome either , but they were willing to accept the outcome derived from the agreed process.    My guess is that if a similar outcome is reached this time, it will be up to MASN to decide whether to drag this out again.   

[spiritof66]

6 hours ago, Frobby said:

 

So, I wasn’t aware of it, but in January the 1st Appellate Division denied MASN’s motion for leave to appeal to the NY Court of Appeal.    That means that the 1st Appellate Division’s earlier decision stands for now, and it has been reported that the re-hearing of the rights fee dispute before MLB’s Revenue Sharing Definitions Committee (RSDC) will take place next month. The three members of the RSDC have all changed over since the previous hearing in 2012.     So, we’ll see if the outcome is any different this time.

I missed this, too. Like lots of other things that's happened, aspects of this are a bit strange.

There's no notation in the Court's case file that the appeal was dismissed. I called the Clerk's Office in the Court of Appeals this afternoon. The person I talked to there said, after a while, that there should be such a notation and couldn't say why there isn't. With her help, I was able to find the order from last November 16 dismissing the appeal. Here is all it says: "Appeal dismissed without costs, by the Court sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution."

It's obvious that, for whatever reason, the Court of Appeals did not want to decide this case.The "sua sponte" means that the Court decided itself to throw out the appeal, without a request or motion by the Nats. When it said that the Appellate Division's order did "not finally determine the proceeding," it apparently was relying on the fact that, under the lower appeal court's order, the parties' dispute is continuing and will be the subject of another arbitration before MLB's Revenue Sharing Definitions Committee.  

Some brief lawyer talk on the last point. The Court of Appeals, in effect, misquoted and twisted the meaning of the New York Constitution when it said, without direct quotation, that the proceeding was not finally determined. What the Constitution says is that for the Court of Appeals to hear an appeal like this, the order appealed from has to finally determine the "special proceeding." The "special proceeding" here is the court case challenging the arbitration award, and that special proceeding has been finally determined. It's over, kaput. It appears that the Court of Appeals was willing to be dishonest in order to avoid having to decide the case -- which may be why two of the seven judges (including the Chief Judge) did not participate in the ruling. End of speech.

So far as I can tell, the Revenue Sharing Definitions Committee that will hear the upcoming rights fee arbitration consists of Mark Attanasio of the Brewers,  Kevin Mathers of the Mariners, and Mark Shapiro of the BJs. I know nothing about Mathers (other than his recent admission of and apology for improper workplace conduct involving female employees of the Mariners), but both Attanasio and Shapiro are real smart guys who may have the integrity to reach a fair decision rather than the one determined by the Commissioner's office. And it's possible that MLB, having been caught screwing around with the arbitration process the first time, will back off a little.

 

[weams]

2 minutes ago, Frobby said:

The short answer is, MASN started it by challenging the previous award in court.    They didn’t have to.   The Nats were probably not very happy with the outcome either , but they were willing to accept the outcome derived from the agreed process.    My guess is that if a similar outcome is reached this time, it will be up to MASN to decide whether to drag this out again.   

I think the value of the broadcast rights are far less this time around. 

[Frobby]

1 minute ago, weams said:

I think the value of the broadcast rights are far less this time around. 

I don’t know about that.   The O’s got lousy ratings this year, but remember, the last time around the O’s were on the back end of 14 losing seasons.   

I’m also not clear whether the RSDC is only hearing the 2012-16 rights case (in which case it’s the data that was available at the time that should be pertinent, not the current data), or whether it’s also going to hear the 2017-21 case (in which case current data is highly relevant).    It would make sense to me for them to hear both cases simultaneously, but not much of what has happened in the last six years has made sense, so who knows.   

[weams]

5 minutes ago, Frobby said:

I don’t know about that.   The O’s got lousy ratings this year, but remember, the last time around the O’s were on the back end of 14 losing seasons.   

I’m also not clear whether the RSDC is only hearing the 2012-16 rights case (in which case it’s the data that was available at the time that should be pertinent, not the current data), or whether it’s also going to hear the 2017-21 case (in which case current data is highly relevant).    It would make sense to me for them to hear both cases simultaneously, but not much of what has happened in the last six years has made sense, so who knows.   

Everyone thought that Harper and Strasburg would win them two or three World Series. I think the boom is off the rose. 

[Frobby]

1 minute ago, weams said:

Everyone thought that Harper and Strasburg would win them two or three World Series. I think the boom is off the rose. 

They are still in decent shape.    They way underperformed this year.    Soto may turn out to be better than Harper.   His .923 OPS as a 19-year old rookie was better than 5 of Harper’s 7 seasons.    

[weams]

5 minutes ago, Frobby said:

They are still in decent shape.    They way underperformed this year.    Soto may turn out to be better than Harper.   His .923 OPS as a 19-year old rookie was better than 5 of Harper’s 7 seasons.    

Just seems like the fervor has died out in the fanbase to me. 

[weams]

And Soto will never be the marketing opportunity that Harper was.