quo vadis
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RE: AAC and ESPN Exclusive Negotiating Window?
(02-12-2019 04:59 PM)johnbragg Wrote: (02-12-2019 04:41 PM)quo vadis Wrote: (02-12-2019 02:06 PM)adcorbett Wrote: (02-11-2019 06:26 PM)quo vadis Wrote: How could the AAC have the legal ability to disregard a signed contract with NBC? It would seem that it would have had to have been ESPN that had the right to match, with their match legally superseding the NBC agreement. The AAC wouldn't have a "right" to rescind a contract with NBC based on something a third party, ESPN did.
Yes they would. That is literally what a "right to match" is, not to be confused with a first right of refusal. It gives ESPN the right to match the agreement, in this case, signed by the AAC with NBC-and it literally has to be the same terms or the clause dosn't kick in (i.e. they can't increase the offer to entice the AAC) - and gives the AAC the right to rescind the contract they signed with NBC, and take the ESPN offer. Which they did- the did sign with NBC, and they did rescind the offer. Or insert any other two parties here. They can do it, because it is known that their preceding offer allows for it during that window (and at the time they were still technically under contract with ESPN, as it was before the expiration of their ESPN contract. I am not sure how it would be affected if the agreement was signed AFTER the expiration of the ESPN contract). That is what a right to match is. It does not, under any circumstances, require the AAC to do so. It was their choice, and they took it. ESPN could not have forced them to take it.
It's not like being a restricted free agent in the NBA or a transition tag in the NFL where a team can match and you have to take it. It is just a last chance offer mechanism, which can be beneficial to either side. In this case, it was the American who used it to get the exposure they wanted, which did not pay as much, but I think their on the field results the past few years showed it likely paid off more than an
I did some googling, and I have yet to be able to find a distinction between a "right to match" and a "right to first refusal". E.g., this law firm article seems to use the terms interchangeably and they mean that if the buyer with the right 'matches' the seller has to take their deal:
https://www.martindale.com/business-law/...831208.htm
Here's another article, where "right to match" is also discussed in terms of the seller having to take the deal with the buyer with the match right if the buyer exercises the match clause:
https://www.lexology.com/library/detail....3c73608023
And back in 2013, Frank the Tank referenced ESPN as having a "right of first refusal" with the Big East:
https://frankthetank.me/2013/02/11/a-tv-...n-bristol/
IOW's, I have yet to find any article that makes the distinction you make between ROFR and Right to Match. They seem to mean the same thing: If buyer X has a right to match clause with seller Y, this means that the seller Y must bring them the final offer they plan to accept from a third party, and if buyer X matches, then seller Y must accept the buyer X match bid. Seller Y has no discretion to take the third party offer, unless they can argue that buyer X's "match" is not a true match.
That's the distinction, I believe. (Between the Marinatto contract and the CUSA contract anyway.) A clean, simple RFR requires that the new contract be pretty much an extension of the old contract in all of the details ("NETWORK will pay $XM per year for the top ten SWC football games, 5 of which will be shown on Saturdays"). You can't have a clear RFR if the seller is changing the product.
ESPN's lawsuit against CUSA centered on CUSA, CBS and FOX including provisions designed to prevent an ESPN match. There was a clause that the RFR of the follow-on contract had to be for pretty much the same set of rights as the existing contract. The Marinatto deals don't seem to have had that provision.
Which explains why the chatter over that weekend was "Big East presidents huddling over the ESPN contract to determine if it's a true match (or a good enough match)."
The open question is, if the Aresco League Powers-That-Be had said "the ESPN contract is not a match", would ESPN have had a leg to stand on if they sued, the way they sued CUSA.
It's possible that the Aresco League presidents would have been able to say that ESPN games are NOT the equivalent of NBC-OTA games, that ESPNews or CBS-SN sublicences are NOT the equivalent of NBC-SN games, that weeknight games on ESPN2 are NOT the equivalent of Saturday timeslots on NBC-SN. Or it would have gone to court.
Maybe I'm just slow on the uptake but I don't really see much of a difference there. In a ROFR/Match situation, the seller definitely does have the right to peruse the signed "match" from the buyer with the match clause, to make sure that the buyer with the match clause hasn't altered the offer the *seller* sent to the buyer.
But beyond that, no discretion, contra what Ad has said.
All of that said, it's possible the CUSA and Big East clauses could have been worded differently, thus giving different rights to the parties in those cases. Bottom line is to my knowledge, none of us has ever seen the exact wording of these contracts, etc.
(This post was last modified: 02-12-2019 05:21 PM by quo vadis.)
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