## Facts

- ESPN and the Office of the Commissioner of Baseball entered a 1996 telecasting agreement granting ESPN rights to televise regular-season MLB games in exchange for rights fees and production commitments.
- The agreement included a representation that ESPN had not made, and would not make, commitments that conflicted with full performance.
- The agreement allowed up to ten preemptions per year for events of significant viewer interest, but only with Baseball’s prior written approval, which could not be unreasonably withheld or delayed; preempted games could air on ESPN2.
- In January 1998, ESPN contracted for Sunday night NFL broadcast rights.
- For three Sunday nights in September 1998, ESPN requested approval to preempt scheduled Sunday night MLB games for NFL games; Baseball refused; ESPN nonetheless aired NFL games instead of the scheduled MLB games.
- In 1999, ESPN again requested approval to preempt three Sunday night MLB games for NFL games; Baseball refused; ESPN again substituted NFL games for MLB games.
- Baseball terminated the agreement, asserting ESPN’s unauthorized substitutions were a material breach.
- The contract included a no-waiver clause stating that failure to demand strict performance or seek redress did not waive rights to later enforce the agreement.
- ESPN sued for wrongful termination and breach of contract; Baseball counterclaimed for ESPN’s breach; before trial, Baseball moved in limine to bar ESPN from asserting election of remedies as an affirmative defense.

## Issues

1. Whether the contract’s no-waiver clause barred, as a matter of law, ESPN’s affirmative defense that Baseball elected to continue the contract after known breaches and therefore could not later terminate based on those same breaches.
2. Whether ESPN’s substitution of NFL games for scheduled MLB games without prior written approval constituted a breach even if Baseball’s refusal to approve preemptions was unreasonable.

## Decision

- The court denied Baseball’s motion in limine and held the no-waiver clause did not, as a matter of law, preclude ESPN from asserting an election-of-remedies defense.
- The court held ESPN breached the agreement as a matter of law by substituting NFL games for MLB games without Baseball’s prior written approval.
- The court left to the jury questions concerning whether Baseball unreasonably withheld approval, whether any breach was material, and the resulting consequences and damages.

## Legal Principles

- A general contractual no-waiver clause does not automatically eliminate the common-law election-of-remedies doctrine.
- Election of remedies concerns a non-breaching party’s choice, with knowledge of a breach, between treating the contract as terminated or continuing performance; continuing may limit later termination for the same breach.
- Contract law generally does not permit unilateral “self-help” selective performance; a party disputing the other side’s conduct must either terminate and sue for total breach, continue performance and sue for partial breach, or seek judicial relief.
- Where a contract requires prior written approval for substituted performance, acting without that approval constitutes a breach even if the approving party may have acted unreasonably in withholding consent.
- Breach and material breach are distinct; whether conduct rises to material breach may present fact questions for the jury.

## Conclusion

The court permitted ESPN to present an election-of-remedies defense despite a no-waiver clause, but ruled that ESPN’s unapproved replacement of scheduled MLB telecasts with NFL games violated the contract as a matter of law, reserving materiality and damages issues for trial.


ESPN, Inc. v. Office of the Comm'r of Baseball, 76 F. Supp. 2d 383 (S.D.N.Y. 1999)