ESPN, Inc. v. Office of the Commissioner of Baseball

ESPN, Inc. (plaintiff) entered into a contract with the Office of Major League Baseball (Baseball) in 1996, under which ESPN would air all regular season major league baseball games on its network in exchange for yearly fees. Under the contract, ESPN had the right to preempt 10 baseball games per season for other events and air the games on ESPN2, its secondary network. Preemption was contingent on Baseball’s written approval, but Baseball was not permitted to unreasonably deny such requests. In 1998, ESPN sought approval to preempt three baseball games so that it could air football games. Baseball did not approve, but ESPN nevertheless preempted the baseball games. The same thing happened in 1999. ESPN sought to preempt three baseball games, Baseball refused, and ESPN preempted the games anyway. Baseball then terminated the contract, alleging that ESPN had materially breached. ESPN sued, and Baseball counterclaimed, each alleging that the other had breached the contract. In answer to Baseball’s counterclaim, ESPN raised an affirmative defense of election of remedies. Baseball then filed a motion in limine, seeking to bar ESPN from raising the affirmative defense. Baseball also asserted that the contract’s no-waiver provision, which provided that either party’s failure to seek redress for breach or demand strict performance of the agreement did not constitute a waiver of rights or subsequent enforcement, effectively overrode the doctrine of election of remedies.