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To say that there’s a rift between Adam Silver and David Zaslav would be putting it mildly. Based upon what went down late Friday night, it’s more apparent than ever that neither one’s gonna be invited to the other’s house to break the fast this coming Yom Kippur.
As DEADLINE’s Dominic Patten told in detail in a piece that dropped on an otherwise quiet Saturday afternoon:
Unless someone calls a time out soon, the legal game between the NBA and Warner Bros Discovery over small-screen basketball rights that the still David Zaslav-run media company turned over looks set to go down to some serious 2-for-1.
As promised, the Adam Silver-led league has responded with force to WBD’s heavily redacted July 26-filed suit over the rights Amazon was awarded earlier this year in a multi-outlet $77 billion deal for the 2025-26 season and beyond. In Hail Mary mode, the stock-cratering WBD and subsidiary Turner Broadcasting System desire a court order to stop the Jeff Bezos-owned streamer from even showing games until this is all resolved.
In a late night motion for dismissal to be argued in person in New York state court on October 4, just under three weeks before the 79th NBA regular season tip offs, the NBA made it clear it is not playing games. To put it simply, the gist of the league’s argument is: Sorry WBD, but you’re just not big enough for the NBA, and it looks like you don’t have the cash.
And in blunt terms that can no doubt be understood by the legally-trained Zaslav, the league is not pulling punches in revealing to the world, or at least Patten’s readers, that they kinda see Yosemite in much the same light that Barack Obama described his Presidential successor during his DNC speech week last week.
“For example, to ensure the financial security of billions of dollars of rights fee payments over the deal’s 11-year term, Amazon agreed, inter alia, to maintain an escrow account from which rights fees will automatically be paid to the NBA as they become due,” the supporting memorandum of law from the league’s Sullivan & Cromwell lawyers reads. “TBS eliminated this protection by giving itself the option to instead provide the NBA with syndicated letters of credit that the NBA can access only if TBS’s payments are late. That is not even close to the same thing.”
Ouch! (Read the NBA’s sharp elbowed response to WBD’s suit over basketball rights here)
And it didn’t end there. Patten also provided those a tad too busy or lazy to click on that link with a truly telling paragraph that pretty much shows how irked the league is:
Plaintiffs’ claims fail at the outset because the MRE did not give TBS the right to match Amazon’s offer. As the Complaint acknowledges, TBS’s matching rights are limited to third-party offers relating to NBA game distribution rights that TBS “currently enjoy[s]” under the NBA/TBS Agreement. TBS does not “currently enjoy” the rights covered by Amazon’s offer—namely, rights to distribute live NBA games on a disaggregated, standalone basis via an SVOD service streamed over the Internet. Instead, TBS’s current rights are limited to distributing games as part of a linear cable television network, together with the rest of the network’s programming. Although the Complaint notes that individual NBA games are currently streamed on Max, an SVOD streaming service owned by WBD, the source of the rights to distribute those games in that manner is not the NBA/TBS Agreement, Plaintiffs’ claims fail at the outset because the MRE did not give TBS the right to match Amazon’s offer. As the Complaint acknowledges, TBS’s matching rights are limited to third-party offers relating to NBA game distribution rights that TBS “currently enjoy[s]” under the NBA/TBS Agreement. (Compl. TBS does not “currently enjoy” the rights covered by Amazon’s offer—namely, rights to distribute live NBA games on a disaggregated, standalone basis via an SVOD service streamed over the Internet. Instead, TBS’s current rights are limited to distributing games as part of a linear cable television network, together with the rest of the network’s programming. Although the Complaint notes that individual NBA games are currently streamed on Max, an SVOD streaming service owned by WBD, the source of the rights to distribute those games in that manner is not the NBA/TBS Agreement, but rather an entirely separate agreement between NBA Media Ventures, LLC and a different WBD subsidiary, Bleacher Report, Inc., that does not contain matching rights.
Ouch and double ouch.
I’m not a lawyer, but I’ve certainly spent more than my fair share of time parsing detailed legal claims and consulting with entities determined to fight them. This one doesn’t just have teeth, it has fangs. Under the Zaslav purview, the sports tier of MAX was a hastily added component in the wake of disappointing early returns, and was initially supposed to pivot into a $11 a month subscription-only tier once March Madness rolled around. For reasons that WBD claimed were technically related, that hasn’t happened, although it is supposedly still the end game. That’s anything but the degree of access and distribution that Prime offers today, and based on its decision to default that platform to an ad-inclusive base, exponentially more eyeballs both domestically and globally for those who buy time.
In true Yosemite Zas fashion, the only public statement that WBD could offer up is this point is the legal equivalent of “oooooo, I hate that varmint”:
We maintain our position that the NBA’s actions are unjustified, and we strongly believe we have fulfilled our contractual right to match the third-party offer. Not only is it our contractual right, but it is in the best interest of the fans who want to continue to enjoy our industry-leading NBA content with the choice and flexibility we offer them through our widely distributed platforms including TNT and Max. We will file our opposition in the coming weeks.
Them’s fightin’ words, to be shur. But to any real basketball fan, we know action speaks volumes and words speak, well, pages.
Zaslav does have one more year of league coverage to exploit, both on TNT and on NBATV, which it operates and supports. He can certainly choose to stop promoting games across the balance of his portfolio, hence denying all of those 90 DAY FIANCE and CHOPPED fans the pleasure of reciprocal promotion the way the viewers of last year’s playoffs were forced to endure promotion for those shows all spring. He can even minimize the promotion of TNT’s games on the network itself. Precedence was set when other sports were in transition years; in 1993 CBS all but stopped pushing NFL games once they learned FOX was taking over rights the following fall. The same thing happened with NBC and ABC two years later when their ill-fated “Baseball Network”, effectively a market-by-market roll-up of as many as 13 regional telecasts a night that desperately needed to get the word out in the wake of emerging from the ashes of the strike that killed the 1994 post-season, did virtually nothing to clear up the confusion for fans in two-team DMAs to simply know which of their them would actually be on TV that night.
But, fair warning, all those maneuvers had little effect on the ratings of the games that mattered most because, hey, sports fans are persistent. And it does seem like WBD really wants to make a statement, and they seem to kind of relish distracting their frustrated stockholders by filing lawsuits. Lawyers tend to love to do to that.
So for as incideniary as this may sound, I’d love to see Zas pull a rabbit out of his own hat and announce due to pending litigation, he’s pulling the plug on THIS season’s games. Start with the season opener on October 22nd between Ant and Lebron (the Timberwolves at the Lakers, for you nit-pickers). Don’t give the league enough time to find alternative distribution, either, ‘cuz you know they will. Get those Lakers fans who may have been actually thinking about pausing their campaigning for Harris-Walz to rise up in the kind of response your half-hearted response above teased was possible.
What’s the worst that could happen, Yosemite? They’d sue you? You’re already fighting it out in the courts. You’d lose audience and money? It’s one night, and even you could come up with programming that would at least offset some of it. Charles Barkley will say nasty things about you? He did that anyway, and you still found enough between the cushions of your couches to pay him enough to stick around. The league might pull the entire 2024-25 package from you in response? Call that ripping the Band-Aid off the scab. Most astute observers know you only started this brou-ha-ha in the pious hope they might pay you something to get you closer to your quarterly bonus threshold to offset some of the losses the rest of your management genius has incurred. In a more reflective moment, I think even you might confess that’s not all that likely. And unless you can inflict some actual pain of your own, I don’t see much of a reason for you to even think they’re gonna cough up a nickel.
The NBA’s a league of big balls, both the ones that are dribbled and the ones that dribble them, Zas. Unless you’re willing to grow a pair of your own, you might want to rethink all this attention to the court of law, and just focus on the court they play on.
Courage…