Baseball Seeks Emergency 2nd Circuit Appeal


     BROOKLYN (CN) - Major League Baseball asked the federal judge who ruled this month that it must face antitrust charges for limiting broadcasts to grant it an emergency appeal before the trial starts, because it is confident that the judgment against it will be overturned.
     U.S. District Judge Shira Sheindlin ruled on Aug. 4 that two class action antitrust lawsuits filed by fans in 2012 could proceed, and that the league's antitrust exemption on the books does not protect it from antitrust claims for restricting out-of-market games.
     In his request for immediate appeal, MLB attorney Bradley I. Ruskin, with Proskauer Rose, wrote that there is a "'substantial ground for difference of opinion' concerning the Court's interpretation of the exemption and its ruling that the exemption is inapplicable here."
     Ruskin said he sought to stem the costs of defending MLB against a trial that, if it found baseball culpable of antitrust violations, would be reversed on appeal.
     "If the 2nd Circuit must wait until after a costly and time-consuming trial to determine that this court does not even have jurisdiction over plaintiffs' claims, the court and the parties will have already incurred significant trial costs and resources, as well as the costs related to the appeal of merits issues," Ruskin wrote. "Certification may prevent these unnecessary expenditures."
     Scheindlin has the final decision on whether to grant the emergency appeal before the matter goes to trial.
     Baseball fans filed two lawsuits in Manhattan Federal Court in 2012, arguing that MLB and the National Hockey League conspired with Comcast and DirecTV to black out games, to prevent them from watching their favorite teams, or force them to pay more to watch "out-of-market" games.
     MLB claimed that it was shielded from antitrust laws because of an exemption in the Sports Broadcasting Act, which was passed by Congress in 1961.
     Scheindlin disagreed, saying she would "decline to apply the exemption to a subject that is not central to the business of baseball, and that Congress did not intend to exempt - namely baseball's contracts for television broadcast rights."
     In his letter seeking emergency appeal, Ruskin said that the Supreme Court has at least six times upheld the exemption, while the 2nd Circuit has "expressly concluded that the broadcasting of baseball is the business of baseball."
     He urged a "quick resolution of the issue" by the 2nd Circuit to "prevent additional improper litigation from which, the Supreme Court has held, MLB must be protected."
     The Yankees' attorney, Jonathan D. Schiller with Boies, Schiller & Flexner, late Wednesday asked the judge to allow it to file a separate brief for emergency appeal by Sept. 3.
     But the fans' attorney, Edward Diver, with Langer Grogan & Diver, also wrote a letter on Wednesday, urging Scheindlin to disallow the Yankees' appeal as " untimely and duplicative ."
     "The MLB defendants have now moved for interlocutory appeal with a memorandum of law that is twice as long as their summary judgment briefing on baseball's asserted antitrust exemption," Diver wrote. "That the Yankees should add to this with another eight pages covering the same ground is unjustifiable."
     The consolidated lawsuits accuse the Office of the Commissioner of Baseball and various baseball and hockey teams, several sports networks, and Comcast and DirecTV of conspiring to eliminate competition over the airwaves and on the Internet, to restrict programming and hang onto their regional monopolies.
     In her ruling, Scheindlin said the broadcasting structure allows baseball "to avoid competition."