Each Incumbent shall have the right, subject to the terms of this
Paragraph (applied mutatis mutandis as necessary), to Match a Third
Party Offer that provides for the exercise of rights to distribute NBA
regular season and/or Playoff games ('Game Rights') via any form of
combined audio and video distribution (e.g., Internet distribution). In
the event that an Incumbent Matches a Third Party Offer that
provides for the exercise of Game Rights via any specific form of
combined audio and video distribution, such Incumbent shall have the
right and obligation to exercise such Game Rights only via the
specified form of combined audio and video distribution (e.g., if the
specified form of combined audio and video distribution is Internet
distribution, a Matching Incumbent may not exercise such Game
Rights via television distribution) through a distributor reasonably
acceptable to the NBA. MRE § C.4.
So I may be reading this wrong, but the NBA is arguing that the match doesn't count because WB wants to air the games through both Cable and Streaming, while Amazon only wants to air through streaming.
And WB continues with some more arguments here:
61. Section C.4, however, makes clear that TBS has the right to "Match a
Third Party Offer that provides for the exercise of [NBA game rights] via any form
of combined audio and video distribution."
62. The Amazon Offer also did not provide for a "specific form of combined
audio and video distribution" simply because Amazon proposed to put the games on
Prime Video and the NBA apparently sought to limit Amazon's distribution to only
streaming over the Internet. TNT, Max, and Prime Video do not use different forms
of combined audio and video distribution. TNT, Max, and Prime Video are
distributed to a television because consumers can watch each of them on a
television. Indeed, 70% of viewing on Prime Video occurs on a television.
I don't really buy WB's argument of "you can stream through a tv" or whatever, but at the same time, I'm not sure how to parse the "dual offerings" part of it. TNT will air games through cable, and those very same games will air through a streaming service, whereas with Prime it would only go through the streaming service. I could see an argument to be made that a cable package, a cable and streaming package, and just a streaming package would be considered different things and that by not excluding television, WB failed to match, as technically the NBA could double dip and sell the same content the NBA got as a cable only package (though language in the contract almost certainly would prevent that from happening).
It's a bit slimy, and is certainly a technicality, but I think a judge who is able to parse the difference in technologies would side with the NBA. And perhaps they would give WB the opportunity to match should they exclude the games from being aired through cable and only through Max (which they wouldn't go for).
That's my read anyway on initial look through the text.
