New York -- ESPN won't be allowed to present key evidence
it hoped to use in its court battle against Major League Baseball, U.S. District Court
Judge Shira Scheindlin ruled recently.
Opening arguments in the ESPN-MLB trial are set to begin
today (Dec. 6), and the trial is expected to last at least six days. But even as ESPN and
MLB attorneys appeared in court for jury selection last Thursday, there was speculation
that the parties were continuing to hold settlement talks.
"As we said all along, we have, and do, and remain to
be, open to any reasonable settlement," ESPN spokesman Chris LaPlaca said when asked
if ESPN and the league were still trying to negotiate a settlement last week.
MLB spokesman Rich Levin declined to comment on the
prospect of an out-of-court settlement.
ESPN sued MLB in May, after the league said it would
terminate ESPN's contract at the end of the 1999 season.
The dispute began when MLB rejected ESPN's requests to move
Sunday-night games in September 1998 and September 1999 to ESPN2 in order to run games
from its expanded National Football League contract on its flagship network.
The network hoped to show the jury a side agreement tied to
a previous contract that it signed with MLB in 1989 to "demonstrate that baseball was
perfectly willing to step aside for the NFL on a string of consecutive Sunday nights in
August and September," according to court filings.
But Scheindlin ruled that the agreement is inadmissible.
"Not only is baseball's 1989 side-letter agreement to a limited number of additional
pre-emptions so attenuated as to be irrelevant, but its negligible probative value is far
outweighed by the confusion and added trial time it would create," she wrote in her
order.
ESPN also wanted to introduce evidence suggesting that
MLB's refusal to approve game pre-emption requests was in retaliation for ESPN fighting
TBS Superstation's plan to run Atlanta Braves games after it converted from a superstation
to a national basic-cable network.
Before TBS could broadcast Braves games as a basic-cable
network, MLB had to renegotiate its rights deal with ESPN, which carried national cable
games exclusively, and the 1996 talks over the TBS issue were contentious.
ESPN alleged that MLB commissioner Bud Selig told other
baseball executives, "If we're reasonable, and they [ESPN] stiff us, I'll try to get
even with them every way I can."
But Scheindlin said she wouldn't allow the jury to hear the
alleged statement. "There is no justification for presenting the jury with evidence
regarding an unrelated contract or testimony as to what Mr. Selig meant by his frustrated
mutterings two years ago," she wrote.
The crux of the case is a clause in ESPN's 1996 contract
with the league that would allow ESPN to pre-empt baseball games with MLB approval for
"events of significant viewer interest."
Baseball won a motion to preclude ESPN's plan to argue that
MLB had "no right to disapprove a pre-emption request for an event of significant
viewer interest."
Scheindlin rejected ESPN's interpretation of the clause,
which is crucial to its case. "Because the language of the pre-emption provision
unambiguously allows baseball to reasonably disapprove events of significant viewer
interest, ESPN is precluded from arguing to the contrary," she wrote.
The judge did, however, note that it will ultimately be up
to the jury to decide if NFL games qualify as events of significant viewer interest.
"There may, in fact, be no reasonable grounds on which baseball can refuse ESPN's
request for pre-emption," Scheindlin wrote.
ESPN won a motion to preclude former CBS Sports president
Robert Wussler from testifying as an expert witness for MLB. "As far as I'm
concerned, baseball was not being unreasonable in their actions. In my professional
opinion, that's the conclusion I drew," Wussler said in an interview last week.
MLB lost a motion to preclude ESPN's expert witness, former
NBC West Coast president Don Ohlmeyer. But Ohlmeyer's testimony will be restricted to
supporting ESPN's argument that Nielsen Media Research ratings are used as an industry
standard to define events of significant viewer interest.
ESPN plans to argue that since NFL games are traditionally
the highest-rated programs on basic cable, it was unreasonable for MLB to reject ESPN's
request to pre-empt the September baseball games.
Scheindlin told ESPN and MLB attorneys during a recent
hearing that the league would only be eligible to receive "nominal" money
damages if it wins the suit. But if MLB does win the case and is allowed to terminate
ESPN's contract, which runs through 2002, it would obviously be a huge blow for the
network.
ESPN lost the National Association for Stock Car Auto
Racing rights deal last month, costing it 900 hours of annual NASCAR programming for ESPN
and ESPN2. The network also recently watched the long-term rights for the NCAA basketball
tournament go to CBS, after losing its bid to run the tournament on ABC and ESPN.
