Latest / Bloomberg Law / Weekend Law: 911 Mastermind Cuts Deal, SCOTUS & NBA TV Rights

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Weekend Law: 911 Mastermind Cuts Deal, SCOTUS & NBA TV Rights · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:09
Speaker 2: The man accused of being the mastermind of September eleventh
0:13
Speaker 2: will be spared the death penalty in a deal with
0:16
Speaker 2: the government. On Wednesday, the Defense Department announced that colleague
0:20
Speaker 2: Sheik Mohammed and two of his co conspirators will plead
0:24
Speaker 2: guilty to the murder of two thousand, nine hundred seventy
0:27
Speaker 2: six people in exchange for taking the death penalty off
0:31
Speaker 2: the table. It's a dramatic and to many, unwelcome development
0:35
Speaker 2: in the prosecution of the deadliest terrorist attack on US soil,
0:40
Speaker 2: a prosecution that's dragged on for more than two decades,
0:43
Speaker 2: marred by reports of CIA torture and botched evidence. Terry Strata,
0:49
Speaker 2: the head of nine to eleven Families United, says the
0:53
Speaker 2: vast majority of the victim's families are angry about the
0:57
Speaker 2: deal and feel that justice has been denied.
1:00
Speaker 3: He will not stand trial and he will not face
1:03
Speaker 3: a punishment by death, which is what was on the table.
1:07
Speaker 3: So this is something that PSM and the others wanted.
1:11
Speaker 3: So it's a victory for them, and I don't feel
1:14
Speaker 3: like we should ever give them a victory. This is
1:17
Speaker 3: a sign of a very weak leadership in our country
1:21
Speaker 3: to strike such a deal.
1:22
Speaker 2: President Joe Biden is distancing himself from the deal, saying
1:27
Speaker 2: in a statement that he played no role in the process.
1:30
Speaker 2: Joining me is national security expert Matthew Waxman, a professor
1:34
Speaker 2: at Columbia Law School. Why have the trials of these
1:38
Speaker 2: nine to eleven defendants been delayed for decades?
1:42
Speaker 4: So right from the start, I think the military commissions
1:46
Speaker 4: that were set up to prosecute detainees at Guantanamo for
1:51
Speaker 4: war crimes has been a failed policy. They were supposed
1:54
Speaker 4: to be set up in order to provide with justice,
1:58
Speaker 4: but they've delivered anything but that. And I think there
2:02
Speaker 4: have been a number of problems that have flowed down
2:06
Speaker 4: the prosecutions, and especially these that are subject to this
2:10
Speaker 4: plea deal. When detainees were captured, whether on the battlefield
2:16
Speaker 4: or elsewhere, those agencies that picked them up were not
2:20
Speaker 4: preparing a case for trial. They weren't collecting evidence as
2:24
Speaker 4: you would in order to prosecute a criminal trial. There
2:28
Speaker 4: have been issues of evidence or confessions that have been
2:33
Speaker 4: obtained allegedly by torture. There are legal challenges that have
2:39
Speaker 4: been made, some of which have gone all the way
2:41
Speaker 4: up to the Supreme Court that have slowed down the process.
2:45
Speaker 4: And whenever you set up an entirely new court system,
2:49
Speaker 4: you have to basically develop all kinds of rules and
2:53
Speaker 4: processes from scratch.
2:55
Speaker 2: Tell us about the alleged mastermind. Colleague, Sheik Mohammed.
3:00
Speaker 4: And he's usually known by those initials, is accused of
3:04
Speaker 4: plotting the attacks of September eleventh, two thousand and one.
3:08
Speaker 4: He's one of thirty detainees who are still held at Guantanamo.
3:13
Speaker 4: And he was a US trained engineer who becomes a
3:18
Speaker 4: key leader of al Qaeda, and he and two of
3:22
Speaker 4: his accomplices have agreed to this plea deal. They've been charged,
3:27
Speaker 4: among other things, with murdering three thousand people in the
3:31
Speaker 4: September eleventh attacks, and the basic terms of the plea
3:36
Speaker 4: deal are that they will plead guilty to murder and
3:40
Speaker 4: other charges in return for a life sentence rather than
3:46
Speaker 4: the possibility of a death penalty.
3:48
Speaker 2: I can see what the defendants are getting out of
3:50
Speaker 2: this deal, but what is the government getting out of
3:52
Speaker 2: this deal.
3:53
Speaker 4: I think it's a good deal for the government. And
3:57
Speaker 4: here's why I'll be glad to see this case put
4:00
Speaker 4: to rest. I doubt this case would ever have been
4:04
Speaker 4: concluded if it proceeded, and actually carrying out a death
4:09
Speaker 4: sentence would have been a disaster, however much they may
4:13
Speaker 4: deserve it. So let me just say I'm conflicted on
4:17
Speaker 4: the death penalty because these are some of the worst
4:20
Speaker 4: people on earth who've committed unspeakable horrors. But I think
4:25
Speaker 4: actually carrying out a death sentence in this case would
4:28
Speaker 4: have been a disaster. I do feel for families of
4:32
Speaker 4: the September eleventh victims who have had to endure the pain,
4:36
Speaker 4: especially of watching this unfold, and I know that they
4:40
Speaker 4: want finality, and many of them are very supportive of
4:44
Speaker 4: the death penalty. But even if it were carried out,
4:48
Speaker 4: and I'm very skeptical that the government would actually have
4:51
Speaker 4: been able to impose the death penalty, I think in
4:54
Speaker 4: this case it would make a martyr of these detainees.
5:00
Speaker 4: The story would understandably be that the United States has
5:03
Speaker 4: put to death somebody who's been subjected to torture. That
5:08
Speaker 4: would only add to the terrible stain of Guantanamo and
5:13
Speaker 4: the CIA enhanced interrogation policy.
5:16
Speaker 2: You mentioned the families Terry Strata had of one group
5:19
Speaker 2: of families said, I wanted to see a trial, and
5:22
Speaker 2: they took away the justice. I was expecting a trial
5:24
Speaker 2: and the punishment. And Brett Eagleson, president of nine to
5:29
Speaker 2: eleven Justice, said, we're deeply troubled by these plea deals.
5:33
Speaker 2: Should the government go ahead with a plea deal that
5:36
Speaker 2: so many of the family members disagree with.
5:40
Speaker 4: Well, this is a terrible dilemma for the government. And
5:43
Speaker 4: as I've said, I very much feel for the families
5:47
Speaker 4: who have had to endure not just the unspeakable pain
5:51
Speaker 4: of the deaths of their loved ones, but twenty years
5:55
Speaker 4: of this process dragging on. I do hope that they
6:00
Speaker 4: feel some sense of justice. But there are other very
6:04
Speaker 4: powerful concerns and interests at stake here, and the US
6:09
Speaker 4: government has to do what's right taking into account all
6:13
Speaker 4: of these various factors. As I said, I don't think
6:16
Speaker 4: the death penalty ever would have been carried out in
6:20
Speaker 4: this case, and I think the death penalty would have
6:23
Speaker 4: carried immense damage to the United States interests, especially abroad.
6:28
Speaker 2: Why is the government not releasing the details of this
6:32
Speaker 2: might be because some of the details might be objectionable.
6:37
Speaker 4: I suspect some of the details are still being worked out.
6:41
Speaker 4: I think some of them will need to be approved
6:44
Speaker 4: by the military commissions and through some other processes. But
6:49
Speaker 4: this is also one of the challenges of moving a
6:53
Speaker 4: case like this through a military justice process that hasn't
6:58
Speaker 4: really been tested. A lot of what's going on in
7:01
Speaker 4: military commissions is new, and so we don't know for
7:05
Speaker 4: sure how some of these processes are going to play out.
7:09
Speaker 4: That's been one of the problems plaguing military commissions from
7:12
Speaker 4: the beginning is that this is an untested process, and
7:17
Speaker 4: two of.
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Speaker 2: The five other nine to eleven defendants are not part
7:20
Speaker 2: of this plea deal.
7:22
Speaker 5: That's right.
7:23
Speaker 4: For several years now, it's been reported that a deal
7:26
Speaker 4: like this has been in the work, some sort of
7:29
Speaker 4: plea deal for a life sentence in return for pleading
7:34
Speaker 4: guilty rather than the possibility of the death penalty. Originally,
7:38
Speaker 4: it was talked about as possibly involving five of the
7:42
Speaker 4: direct perpetrators or leaders of the nine to eleven attack plot.
7:47
Speaker 4: I don't know why we're now talking about a deal
7:51
Speaker 4: involving only three, but over the course of the last
7:55
Speaker 4: few years, we've heard that this deal is sort of
7:58
Speaker 4: on again, off again, and so there are any number
8:01
Speaker 4: of possible reasons.
8:03
Speaker 2: Looking at the big picture here, the government is disappointing
8:07
Speaker 2: most of the family members with this deal. They're getting
8:10
Speaker 2: a life sentence for the murder of three thousand people,
8:14
Speaker 2: and the deal only covers three out of the five
8:17
Speaker 2: suspected terrorists. Even the president is distancing himself from the deal.
8:22
Speaker 2: So after more than twenty years, doesn't this seem like
8:26
Speaker 2: a complete failure.
8:29
Speaker 4: So right now, there are thirty detainees out of a
8:33
Speaker 4: total of roughly eight hundred who were brought to Guantanamo
8:37
Speaker 4: since it opened in two thousand and two. Most of
8:41
Speaker 4: them have been transferred or released, some of them to
8:44
Speaker 4: their home countries, some of them to third countries with
8:47
Speaker 4: varying restrictions. Some of them were transferred for continued detentions,
8:52
Speaker 4: for example, in their home countries. Of those who remain
8:56
Speaker 4: at Guantanamo, about half have also been approved for or
9:00
Speaker 4: some sort of transfer, but we don't know whether that
9:03
Speaker 4: will happen anytime soon. A few, though, will never be charged.
9:09
Speaker 4: They're going to be held indefinitely without any sort of prosecution.
9:14
Speaker 4: I think Guantanamo has been a failed policy. It was
9:18
Speaker 4: originally opened to be a place that would hold only
9:23
Speaker 4: the very worst of the worst, and it turned out
9:26
Speaker 4: that many detainees who were brought there should never have been.
9:29
Speaker 4: Either they were cases like mistaken identity, or they were
9:34
Speaker 4: low level al Qaeda or Caliban figures. It was also
9:37
Speaker 4: supposed to be an interrogation and intelligence center where the
9:42
Speaker 4: government would be able to obtain a vast amount of
9:46
Speaker 4: information about future al Qaeda plots and networks, and I
9:51
Speaker 4: think it failed in both its detention mission and its
9:55
Speaker 4: intelligence mission. That doesn't mean that it was not valuable
9:59
Speaker 4: in some important ways. It kept many very very very
10:04
Speaker 4: dangerous people off the battlefield and prevented them from conducting
10:09
Speaker 4: further attacks. It also did provide some important intelligence information,
10:14
Speaker 4: never as much as I think was expected, but it
10:16
Speaker 4: did provide some very very important information. But from the beginning,
10:21
Speaker 4: there was never really a good plan for what was
10:25
Speaker 4: going to happen to the detainee's long term. There were
10:29
Speaker 4: insufficient processes put in place for figuring out which detainees
10:34
Speaker 4: should be detained there and which ones shouldn't. It is
10:38
Speaker 4: indelibly associated with this idea of a legal black hole
10:42
Speaker 4: and with torture, and I think many of those costs
10:46
Speaker 4: continue to accrue over time.
10:49
Speaker 2: Former Attorney General Eric Holder told NBC News that quote,
10:53
Speaker 2: the people responsible for structuring this awful deal did the
10:57
Speaker 2: best they could. He said, they were dealt a bad
11:01
Speaker 2: hand by the political hacks who blocked the trial of
11:04
Speaker 2: ACCU September eleventh terrorists in federal court nearly fifteen years ago.
11:10
Speaker 4: As of today, only one detainee from Guantanamo was brought
11:15
Speaker 4: into the United States for prosecution in federal court here
11:20
Speaker 4: in New York. It was fought in the Obama administration
11:24
Speaker 4: that they would be able to bring many more, but
11:27
Speaker 4: that plan was shut down really for political reasons. There
11:32
Speaker 4: was a lot of opposition in Congress, which then put
11:36
Speaker 4: restrictions on transferring any detainees out of Guantanamo and barring
11:41
Speaker 4: bringing them into the United States. But this also gets
11:44
Speaker 4: through a broader problem, which is it's very easy to
11:48
Speaker 4: say that Bontanamo is a mistake, Guantanamo should be shut down,
11:54
Speaker 4: but it's very hard to figure out what should you
11:56
Speaker 4: do instead, And just saying we should bring them into
12:00
Speaker 4: the United States for prosecution wouldn't work. Just saying you
12:03
Speaker 4: should send them back to home countries or third countries
12:08
Speaker 4: wouldn't work. It's very very hard to figure out what's
12:12
Speaker 4: going to happen to the remaining thirty detainees at Guantanamo.
12:17
Speaker 4: The government has been working hard to shrink that number
12:20
Speaker 4: even further, but it's very hard to figure out what
12:24
Speaker 4: is a viable alternative to holding them at Guantanamo. And
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Speaker 4: I think part of this goes back to the very
12:30
Speaker 4: beginning that it wasn't designed with really long term thinking
12:35
Speaker 4: in place.
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Speaker 2: I do want to mention that there will be a
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Speaker 2: sentencing hearing for the three defendants and we may learn
12:41
Speaker 2: more then. Thanks so much for being on the show.
12:44
Speaker 2: That's Columbia Law School professor Matthew Waxman. I'm June Grosso
12:49
Speaker 2: and you're listening to Bloomberg.
12:51
Speaker 1: Inside NBA is the benchmark, the ultimate studio show, one.
12:55
Speaker 6: Of the greatest sports shows of all time.
12:56
Speaker 3: I put Inside the NBA above everybody else.
13:00
Speaker 1: Know what this spect We have more fun at TNT,
13:04
Speaker 1: and that's what makes it special.
13:07
Speaker 2: But it looks like the widely acclaimed sports show will
13:10
Speaker 2: not be on TNT after twenty twenty five, unless a
13:14
Speaker 2: lawsuit changes things. The NBA signed a new TV rights
13:18
Speaker 2: deal with Amazon, NBC, Universal, and Disney worth about seventy
13:23
Speaker 2: six billion dollars over eleven years and leaving TNT out
13:28
Speaker 2: in the cold. So TNT's parent company, Warner Brothers Discovery,
13:32
Speaker 2: is suing the NBA for breach of contract, saying the
13:36
Speaker 2: league rejected its matching offer. Charles Barkley, one of the
13:40
Speaker 2: co hosts of Inside the NBA, was as outspoken as
13:44
Speaker 2: usual about the league's new deal on The Dan Patrick Show.
13:47
Speaker 1: This was a last bitch cash grap by the NBA
13:52
Speaker 1: and the players. That's why I think they signed an
13:55
Speaker 1: eleven year deal. So they're like, hey, let's get as
13:59
Speaker 1: much mine as we how we can right now. This
14:01
Speaker 1: is gonna be our last bite of the apple because TNT, ABCSPN,
14:07
Speaker 1: they're not going to pay more money going forward.
14:12
Speaker 2: The lawsuit is another chapter in the deteriorating relationship between
14:17
Speaker 2: the NBA and Turner Sports, a relationship that's lasted nearly
14:21
Speaker 2: forty years. Joining me is entertainment and media lawyer Ronald Beanstock,
14:26
Speaker 2: a partner at Scarincy Hollandbeck. What happened here? As far
14:29
Speaker 2: as you can make out.
14:30
Speaker 5: There's a lot of redactions in the complaints, so it's
14:33
Speaker 5: kind of hard to know from the specifics of the agreement.
14:36
Speaker 5: But I will tell you what I think of. So
14:37
Speaker 5: this is really a fight between tech corporate structure looking
14:41
Speaker 5: to find their way into the larger dollars of entertainment properties.
14:46
Speaker 5: And you can't get any biggers really than sports versus
14:49
Speaker 5: the old school broadcasting. You've got a company T and
14:52
Speaker 5: T here who has had the right for forty years
14:55
Speaker 5: within their agreements. With the definition of the words match
14:59
Speaker 5: right commonly use part of entertainment agreements where somebody who
15:04
Speaker 5: has rights to something would like to keep those rights
15:06
Speaker 5: to something, but they allow a third party come in
15:09
Speaker 5: make the offer and it gets the match and then
15:11
Speaker 5: you know you've got a usurper if you will. Tech companies, Amazon,
15:14
Speaker 5: obviously Disney that comes in and says, I want to
15:17
Speaker 5: make a really great offer to you. I'd like to
15:19
Speaker 5: bring this asset to our camp, and we think we
15:22
Speaker 5: can do really well with the billions of dollars every year.
15:25
Speaker 5: We think we can enhance the NBA's income and enhance
15:28
Speaker 5: ours obviously, bring bigger and better advertising dollars to their
15:32
Speaker 5: format and in subscriptions, and we'd like to make an
15:35
Speaker 5: offer on this somewhere. They made that offer right, The
15:38
Speaker 5: timing was correct. They made the offer, and T and
15:41
Speaker 5: T had two quote match. So T and T says
15:44
Speaker 5: we matched, we match timely. That's not in dispute. Seems
15:47
Speaker 5: to be able, all done correctly. But Amazon is saying,
15:50
Speaker 5: and apparently NBA is saying, no, you didn't, you didn't match.
15:55
Speaker 5: According to the agreement, we have other services or other
15:58
Speaker 5: things we can offer. You didn't match, that you're only
16:01
Speaker 5: matching the initial offer. And that definition of match is
16:04
Speaker 5: one of the crucial discussions with billions of dollars at stake.
16:08
Speaker 2: I mean, what's the general interpretation of what match means
16:12
Speaker 2: in a contract like this?
16:14
Speaker 5: So in interesting businesses like this, the match would be
16:17
Speaker 5: first right, like a first right of refusal. And the
16:19
Speaker 5: definition I'm not clear about. No one's clear about because
16:21
Speaker 5: it's contractual language is underdacted from the complaint. But there's
16:25
Speaker 5: a real difference here, and that is the difference would
16:27
Speaker 5: be between I get to match and the words that
16:30
Speaker 5: are using the complaint as an incumbent, which is not
16:33
Speaker 5: a commonly used word in entertainment property agreement incumbent, and
16:37
Speaker 5: that it says as an incumbent, TBS has the right
16:39
Speaker 5: to match any quote third party offer end quote for
16:43
Speaker 5: future NBA telecast rights right to match any third party offer,
16:47
Speaker 5: which would indicate to me that it's an initial match right.
16:51
Speaker 5: If someone says two hundred, and I say I'll give
16:53
Speaker 5: you two hundred, I'll match that. Now it stays with me.
16:56
Speaker 5: I am, as they call it, the legacy or incumbent.
17:00
Speaker 5: Here on the legacy license fee, I would maintain my
17:03
Speaker 5: rights the term length of the next portion of this
17:05
Speaker 5: agreement of eleven years. That would be over fifty years
17:08
Speaker 5: of retaining rights in terms of a license fee to
17:10
Speaker 5: a piece of property like this. And that's probably where
17:13
Speaker 5: everybody is fighting this because the tech companies think by
17:17
Speaker 5: do a better job. So the word match looks like
17:19
Speaker 5: initial match many times when we're negotiating entertainment property agreements
17:24
Speaker 5: like this. Music business is a good example, music publishing
17:27
Speaker 5: record deals or things of this nature. Licensing deals. We
17:30
Speaker 5: have last match. That's a preference of mine because if
17:34
Speaker 5: you say two hundred, but that's not the fully ending
17:37
Speaker 5: negotiated deal, I think I can get you to three.
17:39
Speaker 5: I don't want you to match two. I want you
17:41
Speaker 5: to match the deal I'm willing to execute. That would
17:44
Speaker 5: be what the match right should say. I don't know
17:47
Speaker 5: because it's been redacted, so we'll have to find out
17:50
Speaker 5: as discovery goes on.
17:52
Speaker 2: In the new TV rights deal, national games will be
17:54
Speaker 2: distributed across Amazon Prime Video, NBC's broadcast network, Talk streaming service,
18:01
Speaker 2: and Disney's ABC and ESPN platforms. And it's not just
18:06
Speaker 2: matching the money, is it. It's also matching the scope.
18:11
Speaker 5: Yes, I think that that's part of the process, and
18:13
Speaker 5: I think the match is the scope. What can we
18:14
Speaker 5: offer in terms of SBOD, subscription video on demand. I
18:18
Speaker 5: think this is all within the concept of the match,
18:22
Speaker 5: because I don't think the match was one sentence gentleman
18:24
Speaker 5: get says, here's the money.
18:26
Speaker 2: Match it.
18:26
Speaker 5: I think structurally it's the scope clearly territories worldwide, but
18:30
Speaker 5: it's scope in terms of what we have to offer
18:33
Speaker 5: and what platforms. I think that's a part of this.
18:35
Speaker 5: I think that they're trying to say, you're an old
18:36
Speaker 5: school broadcaster, but TNT has other platforms that they get
18:39
Speaker 5: to put it onto. MAC So I think these are
18:42
Speaker 5: parallel universes colliding. I don't know if they're exactly in
18:45
Speaker 5: the same size universe, but I think that they are
18:48
Speaker 5: structurally similar because MAX allows the similar version of platform
18:53
Speaker 5: structure as the Amazon would have as well.
18:56
Speaker 2: Suppose this is about the NBA saying this, this new
19:00
Speaker 2: deal is just better for our brand long term. Where
19:04
Speaker 2: does that fit into the equation?
19:06
Speaker 5: Someone is looking at this in the long term process, right,
19:09
Speaker 5: Someone's saying this is better for us in terms of
19:11
Speaker 5: the NBA brand and our largest in the future. Clearly
19:15
Speaker 5: that's what's at stake here. Somewhere in that agreement between
19:19
Speaker 5: P and T and the NBA this forty year. That's
19:22
Speaker 5: a lengthy, lengthy relationship which apparently, according to whatever I've
19:26
Speaker 5: seen in the press and people that I know, has
19:28
Speaker 5: not been the best in the last few years that
19:30
Speaker 5: there's been a lot of discussion about this, you know,
19:32
Speaker 5: and again I'm going to reiterate that point about tech
19:35
Speaker 5: giants versus old school broadcasters. There seems to have been
19:39
Speaker 5: a exclusive negotiation period that was the precursor to this match.
19:45
Speaker 5: So it looks like there was some over the last year. Contractually,
19:49
Speaker 5: they were obligated to have not mediation, but a negotiation
19:52
Speaker 5: where they would sit in that room and they would
19:55
Speaker 5: try to knock out their new agreement and it didn't work.
19:58
Speaker 5: Somewhere in the NBA is keep people in the or
20:00
Speaker 5: the owners, whoever was involved, said no, it's not structurally sufficient.
20:04
Speaker 5: We think we can do better. We think the NBA
20:07
Speaker 5: brand can do better at this different set of platforms.
20:10
Speaker 5: But they had that moment and it didn't work out.
20:13
Speaker 2: Warner Brothers is asking for a jury trial. Is it
20:16
Speaker 2: difficult to line up two different offers like this for
20:20
Speaker 2: a jury when it's not just a question of money.
20:24
Speaker 5: I don't think it's that sophisticated. Looks this jury trial demand, yes,
20:28
Speaker 5: but think about what we've got here. We've got in
20:29
Speaker 5: the quest for the junctive relief specific performance. But if
20:32
Speaker 5: we get to a jury, this to me looks like
20:34
Speaker 5: you can put the two offers up on large boards
20:37
Speaker 5: in front of a jury and go, there's their offer,
20:39
Speaker 5: here's our offer.
20:40
Speaker 4: Look at ours.
20:41
Speaker 5: You see we match that.
20:42
Speaker 1: There it is.
20:43
Speaker 5: It's not difficult areas of law. It's going to be
20:46
Speaker 5: how do you define match? And did we do it?
20:48
Speaker 5: Getting to that though, oh my goodness, we have a
20:51
Speaker 5: long way to go. We have all this other stuff
20:54
Speaker 5: we're going to have to go through.
20:55
Speaker 2: Interesting that Turner in its complaint said that we I
21:00
Speaker 2: strongly believe that this is not just our contractual right,
21:04
Speaker 2: but also in the best interest of fans who want
21:07
Speaker 2: to keep watching our industry leading NBA content.
21:11
Speaker 5: They've come to think of it as their own the
21:13
Speaker 5: property they call their asset, which they shouldn't be calling
21:15
Speaker 5: its assets, but they do. In that complaint. That's very telling.
21:18
Speaker 7: They have a.
21:20
Speaker 5: Large investment in the NBA broadcasters and experts and color commentators.
21:27
Speaker 5: That's a lot of money that got invested, and they've
21:29
Speaker 5: been very successful with that. I think they've won their
21:31
Speaker 5: own Emmys. I think that's a huge part of this
21:33
Speaker 5: that they say, look, we pay Charles Barkley X and
21:35
Speaker 5: we have the best people to do this. Now who
21:37
Speaker 5: you going to bring on to do this?
21:38
Speaker 1: Right?
21:39
Speaker 5: Look at what you've invested into this. And I think
21:41
Speaker 5: that's part of this. And I think that what they're
21:42
Speaker 5: trying to say in the complaint is that we've got
21:45
Speaker 5: so much invested and look at the terrible losses that
21:47
Speaker 5: will suffer. Well, I have a hard time. I mean,
21:50
Speaker 5: that's forty years. Did you do everything in the forty years?
21:53
Speaker 5: I think that's going to come up right. They're going
21:54
Speaker 5: to say they got complacents. Sure, they had these great
21:57
Speaker 5: teams of experts, these really popular posts, you know, It's
22:00
Speaker 5: interesting to see in the complaint. I want to say,
22:03
Speaker 5: it's a woes me kind of thing, saying how terribly
22:05
Speaker 5: will be hurt. Sure, that's what complaints say, but that's
22:08
Speaker 5: not the point here. Did you match it? Did you
22:11
Speaker 5: follow what they had said? I also want to know
22:13
Speaker 5: what went wrong in that exclusive negotiation period, what happened there,
22:16
Speaker 5: and ultimately, you know, if it doesn't work out, there
22:20
Speaker 5: may be a split. The baby here it is State
22:23
Speaker 5: Court is State Supreme in New York, so this won't
22:25
Speaker 5: be the first time anybody does something like this. They
22:27
Speaker 5: may say, you know what, for the first three years,
22:30
Speaker 5: we may give key games to stay with T and
22:33
Speaker 5: T and their team, and then regular season games X, Y,
22:35
Speaker 5: and Z will go over here, and then eventually we're
22:37
Speaker 5: going to morph this all entirely over to the new licensee.
22:42
Speaker 5: That may be how this gets done. Nobody's going to
22:45
Speaker 5: want to have this extend past even the preseason, so
22:49
Speaker 5: I think they're going to have to figure out methodologies
22:51
Speaker 5: to compromise at some point. It's not like they're going
22:54
Speaker 5: to postpone the season, so I think that the issue
22:57
Speaker 5: is going to start to come up pretty fast and furious.
22:59
Speaker 5: There's billions and billions to stake.
23:01
Speaker 2: Here are court's reluctant to force someone or a party
23:05
Speaker 2: into a deal they don't want to be in.
23:08
Speaker 5: Yes, simplest answer I can give. Yeah, that's a common
23:12
Speaker 5: discussion and entertainment properties. If an artist wants off a label,
23:16
Speaker 5: the judge's going to say, how do you guys getting along?
23:18
Speaker 1: Oh?
23:19
Speaker 5: Terribly? Okay, Now I want you guys back together, shake hands,
23:22
Speaker 5: Come on, you can put it back. Never happens. It
23:24
Speaker 5: never happens that way. There's always some override, similar to
23:29
Speaker 5: the theory here of certain games being split up. There
23:31
Speaker 5: may be an override on structure of money. There may
23:33
Speaker 5: be a way to uo two records to this person.
23:36
Speaker 5: Oh you owe five songs to this publisher. Oh you
23:38
Speaker 5: owe twelve episodes the original production company. Yeah, we do
23:42
Speaker 5: that to get through the process, so we don't kill
23:45
Speaker 5: the golden goose here. Enter hument properties take decades, if
23:48
Speaker 5: not lifetimes to develop like this, and so nobody wants
23:51
Speaker 5: to hurt that. So I think that they're going to
23:53
Speaker 5: be ways we get this resolved that may not be
23:55
Speaker 5: in a standard methodology. I think there's gonna be a
23:59
Speaker 5: lot of beating and Chambers I think there's a lot
24:01
Speaker 5: of meetings with everybody just discussing how to make this work.
24:04
Speaker 2: So it sounds like you think there'll be some kind
24:06
Speaker 2: of settlement before this ever gets close to a jury.
24:10
Speaker 5: I think there's a possibility there's going to be a
24:12
Speaker 5: series of workaround to try to satisfy some immediacy for
24:17
Speaker 5: T and T. But I think eventually there's going to
24:20
Speaker 5: be a transition unless everything has gone wrong from the
24:24
Speaker 5: Amazon point of view in terms of where the match
24:27
Speaker 5: was and how you define match, And it sounded like
24:30
Speaker 5: something happened in that definitional process. Somebody says we did it.
24:34
Speaker 5: The other side NBA is saying, no, you didn't do that.
24:37
Speaker 5: Is it based upon as you and I just discussed
24:39
Speaker 5: the variable platforms and the extent the nature of the
24:42
Speaker 5: other digital platforms. It's hard to know. The redactions make
24:45
Speaker 5: it hard to know, because at the end of the
24:47
Speaker 5: complaint June, there is a series of redactions where it's
24:50
Speaker 5: effectively saying the Amazon offer they did something here that
24:56
Speaker 5: wasn't in good faith. It's a bad faith effort to
24:58
Speaker 5: deprive TBS contractual right. They found a way around it
25:03
Speaker 5: that's pretty hefty. We don't know what the language was,
25:06
Speaker 5: but they're saying they caused the match to be rejected.
25:10
Speaker 5: Has to be proof of that. What did they do?
25:11
Speaker 5: You know where that's the enter. What did they do?
25:13
Speaker 5: What was so crafty about these guys that they were
25:16
Speaker 5: able to convince them that they could get around the match?
25:18
Speaker 7: Right?
25:18
Speaker 5: That's redacted. We're gonna have to go find out once
25:20
Speaker 5: this proceeding really gets rolling.
25:21
Speaker 2: That certainly adds to the drama here. Thanks for coming
25:24
Speaker 2: on the show. That's Ronald Beanstock of Scarincy Hollandbeck.
25:29
Speaker 7: These scandals of Olvi's the justices have caused public opinion
25:33
Speaker 7: to question the Court's fairness and independence.
25:35
Speaker 2: The public's confidence in the Supreme Court has fallen to
25:39
Speaker 2: historic lows following a series of controversial rulings that overturned
25:44
Speaker 2: landmark decisions on abortion rights and federal regulatory powers, established
25:50
Speaker 2: the right to carry a handgun in public, and determine
25:53
Speaker 2: that former presidents have broad immunity from prosecution. So, with
25:57
Speaker 2: less than six months left in his Presienceancy Joe Biden
26:01
Speaker 2: is calling for dramatic changes to the Court that have
26:04
Speaker 2: no chance of being enacted.
26:06
Speaker 7: We need these reforms. We sort trust in the courts
26:09
Speaker 7: preserve the system of checks and balances that are vital
26:13
Speaker 7: to our democracy. We're also common sense.
26:15
Speaker 2: Reforms, common sense, perhaps controversial, definitely. Joining me is William Traynor,
26:23
Speaker 2: dean of Georgetown Law and a constitutional history scholar. Let's
26:27
Speaker 2: start with Biden's proposal for term limits for the justices.
26:31
Speaker 2: A president would appoint a justice every two years and
26:34
Speaker 2: that justice would sit eighteen years on the court. This
26:38
Speaker 2: isn't a new idea. But could it be done through
26:41
Speaker 2: legislation or would it take a constitutional amendment?
26:45
Speaker 6: No, this is not a new idea. The start of
26:47
Speaker 6: his administration, President Biden appointed a commission to look at
26:51
Speaker 6: the possibilities of Supreme Court reform, and this is one
26:55
Speaker 6: of the proposals that they made. So it's something that
26:57
Speaker 6: people have been focusing on for a number of years.
27:00
Speaker 6: Debate about whether it requires constitutional amendment. I think it
27:03
Speaker 6: should be constitutional because historically the duties of Supreme Court
27:07
Speaker 6: justices have not always been the same, and so this
27:11
Speaker 6: is similarly just altering what the duties of Supreme Court
27:14
Speaker 6: justices would be. But again that's something that good people debate.
27:17
Speaker 2: Yeah, some argue that the term limits proposal is at
27:21
Speaker 2: odds with Article three, which provides that justices shall hold
27:25
Speaker 2: their offices during good behavior.
27:28
Speaker 6: So one of the questions is, you know, is this
27:30
Speaker 6: consisting with the original understanding? And I think it is
27:33
Speaker 6: one of the changes that we've seen over time. There
27:35
Speaker 6: is Supreme Court justices are now on the court much
27:38
Speaker 6: longer than they were at the beginning. So if you
27:40
Speaker 6: look at the Washington administration, for example, the average tenure
27:44
Speaker 6: of the justices he appointed was less than eight years,
27:47
Speaker 6: whereas now the most recent departures from the courtator through
27:50
Speaker 6: death or resignation, have been about thirty years. So this
27:53
Speaker 6: is dramatically different than what was envisioned at the start.
27:56
Speaker 6: And it also means that there's a tremendous amount of
27:58
Speaker 6: luck in terms of which president controls the justices on
28:02
Speaker 6: the Court. So, for example, Jimmy Carter in four years
28:06
Speaker 6: had actually no appointment, whereas in the same period of
28:09
Speaker 6: time Donald Trump had three appointments. So one of the
28:12
Speaker 6: things that Biden's proposal would do is essentially take the
28:15
Speaker 6: luck and happenstance out of the appointments to the Court
28:19
Speaker 6: by saying that every president would have an appointment every
28:22
Speaker 6: two years. So that really would bring I think the
28:25
Speaker 6: make up of the court much more in line with
28:28
Speaker 6: what people determined in the presidential election, So I think
28:30
Speaker 6: this would make sense.
28:31
Speaker 2: Biden is also calling for a binding ethics code that
28:35
Speaker 2: would require the justices to disclose gifts, refrain from political activity,
28:40
Speaker 2: and recuse themselves from cases presenting conflicts of interest for
28:44
Speaker 2: themselves or their spouses. Now, Democrats have been trying to
28:48
Speaker 2: pass an ethics code to no avail. But are there
28:51
Speaker 2: any constitutional problems with an enforceable ethics code.
28:55
Speaker 6: Well, I don't think there's a problem with this. For example,
28:58
Speaker 6: we have binding codes ethics for people in the executive pinch.
29:02
Speaker 6: It's really the same thing. Congress here would be creating
29:05
Speaker 6: an ethical framework for Supreme Court justices. So it seems
29:09
Speaker 6: to me that it's something that Congress should be able
29:11
Speaker 6: to do. But again, this is something that is debated,
29:14
Speaker 6: and there's some people who will say, for example, Justice
29:16
Speaker 6: Alito has said this would not be constitutional, but.
29:19
Speaker 2: The Constitution states that the Supreme Court's jurisdiction must be
29:23
Speaker 2: exercised under such regulations as the Congress shall make.
29:27
Speaker 6: Well is whether this is the kind of regulation that
29:30
Speaker 6: the Constitution has contemplated. And again, this would be a
29:33
Speaker 6: new question. The Supreme Court has never been subject to
29:36
Speaker 6: congressional rules like this, But as a legal matter, the
29:39
Speaker 6: question is whether this would fall into the Constitution's text
29:42
Speaker 6: about regulation, and that's really debatable. I think it would,
29:45
Speaker 6: but again Justice Alito has said that it would not,
29:48
Speaker 6: and it would ultimately be a question for the Court.
29:50
Speaker 2: Well, that seems to be the catch twenty two for
29:52
Speaker 2: both this proposal and the term limits proposal. Both ultimately
29:57
Speaker 2: would end up at the Supreme Court, and the costices
30:00
Speaker 2: would be the arbiters of whether they're constitutional or not,
30:04
Speaker 2: and how much would an ethics code really accomplish. It
30:07
Speaker 2: would stop them from accepting gifts, get them to recuse
30:11
Speaker 2: from a few cases, but it wouldn't make them any
30:14
Speaker 2: less partisan in their decision making.
30:16
Speaker 6: The argument would be that when they're accepting gifts, you
30:19
Speaker 6: know what affects the way in which they think about cases,
30:22
Speaker 6: So it's not partisan directly. But I think underlying the
30:25
Speaker 6: idea of an ethics code is the idea that when
30:28
Speaker 6: we received gifts, it tends to color your point of view,
30:31
Speaker 6: and so the ethics would take that out of the equation.
30:34
Speaker 2: I don't know if he has made any very specific suggestions.
30:38
Speaker 2: But this would be enforceable by whom.
30:41
Speaker 6: Well, I think that's a question. So what's the mechanism
30:44
Speaker 6: for enforcement. One of the suggestions that people have had
30:47
Speaker 6: is that you would put together a panel of lower
30:50
Speaker 6: court judges who would decide what's appropriate and what's not appropriate.
30:53
Speaker 6: So it would take it out of the Supreme Court
30:56
Speaker 6: deciding for its help, and give it to other federal judges.
30:59
Speaker 6: If this were to go forward, and it's not going
31:01
Speaker 6: to go forward with this Congress, but if we're to
31:03
Speaker 6: go forward in the future, I think that is the
31:05
Speaker 6: most likely framework.
31:06
Speaker 2: Then he's calling for a constitutional amendment to ensure that
31:09
Speaker 2: former presidents can be tried for crimes committed while in office.
31:14
Speaker 2: Amending the Constitution is virtually impossible these days. It requires
31:19
Speaker 2: approval from three quarters of the states.
31:22
Speaker 6: Well, it's incredibly hard, but it's incredibly hard really for
31:27
Speaker 6: most of American history. I think this does two things.
31:29
Speaker 6: One is it's a symbolic statement, and it's also an
31:33
Speaker 6: indication of disapproval of the Supreme Court's decision in compers
31:38
Speaker 6: the United States. So I think it's unlikely that this
31:41
Speaker 6: would be adopted, but it still is a very powerful statement.
31:44
Speaker 2: Biden didn't include a couple of things that have been
31:47
Speaker 2: proposed at various times, one being packing the court or
31:51
Speaker 2: adding more justices to the court, and that doesn't have
31:55
Speaker 2: the legal problems that his other suggestions have. It's allowed
31:59
Speaker 2: by the institution.
32:00
Speaker 7: That's right.
32:01
Speaker 6: Congress has the ability to establish the number of justices
32:04
Speaker 6: on the court. So right now we have nine, and
32:06
Speaker 6: we've had nine for more than one hundred and fifty years,
32:09
Speaker 6: but that's not written into the Constitution. And we've had
32:12
Speaker 6: different numbers of justices over time. So if we've had
32:14
Speaker 6: as fuge times and we've had as many as ten,
32:17
Speaker 6: so there's really no constitutional problem with creating more justiceship.
32:22
Speaker 6: The reason why he didn't do that is that that
32:26
Speaker 6: would feel very partisan. So for example, if you were
32:29
Speaker 6: to have three more justices that a democratic president put
32:32
Speaker 6: a point, then there would be a point about those justices.
32:36
Speaker 6: It almost inevitably the next time you had a Republican
32:39
Speaker 6: president or Republican tilS it would be expanded. Even more so,
32:43
Speaker 6: he has proposed something that's not packing the court but
32:46
Speaker 6: is really designed to be I think nonpartisan, to give
32:49
Speaker 6: every president moving forward two seats. And on top of that,
32:53
Speaker 6: also to say that the justices on the Court will
32:56
Speaker 6: have lifetime tenures, so it will not alter short term
33:00
Speaker 6: the court's makeup. They're six Republican appointees, three Democratic appointees.
33:05
Speaker 6: It would be a very long time before you could
33:08
Speaker 6: conceivably have under prison Biden's in formula a shift towards
33:12
Speaker 6: a Supreme Court in which most of the appointees were Democratic.
33:15
Speaker 2: Another widely discussed reform that Biden didn't propose is called
33:21
Speaker 2: jurisdiction stripping, and it is constitutional. So why do you
33:25
Speaker 2: think Biden left that out right?
33:27
Speaker 6: So Congress has substantial control over the jurisdiction of the Court.
33:32
Speaker 6: So at very times in the past it's taken certain
33:34
Speaker 6: issues away from the Supreme Court, and that's what we
33:37
Speaker 6: call jurisdiction stripping. But that's not something that his proposals
33:41
Speaker 6: called for, and I think that's really not been something
33:44
Speaker 6: that has been at the top of the date. His
33:47
Speaker 6: proposals really track the things that people are focusing on,
33:50
Speaker 6: that some kind of expansion of the court, some kind
33:52
Speaker 6: of ethics code. And then also in the wake of
33:55
Speaker 6: Trump versus the United States, a constitutional amendment that would
33:57
Speaker 6: lead to a different result, and that would provide that
34:00
Speaker 6: presidents can be prosecuted, which is before the division Trump
34:04
Speaker 6: versus the United States, That's been something that has been
34:06
Speaker 6: assumed throughout American history. I worked on the Iran Contra
34:10
Speaker 6: investigation and the focus was on whether President Reagan was
34:14
Speaker 6: guilty of criminality, and during the course of that investigation,
34:17
Speaker 6: there was really no argument that you shouldn't be considering
34:20
Speaker 6: presidential criminality. Same thing in Water. So the Trump versus
34:23
Speaker 6: United States decision is something that really represents the departure
34:27
Speaker 6: from something that has been assumed to be the case
34:30
Speaker 6: really all the way back to the times of the Founders.
34:33
Speaker 2: During his term, Biden resisted calls from progressives to seek
34:39
Speaker 2: reform to the Supreme Court. Why now with six months
34:43
Speaker 2: left in his term, Well, I.
34:46
Speaker 6: Think he wants to make a statement as his presidency
34:49
Speaker 6: was drawing to a close that he thinks the Supreme
34:52
Speaker 6: Court is off the rails in a lot of crucial areas.
34:56
Speaker 6: And I think he didn't act before now because this
34:59
Speaker 6: is cumulative. You know what he's seeing over time is
35:02
Speaker 6: there are more and more decisions in which the Court
35:05
Speaker 6: is departing from the original understanding or departing from precedent.
35:09
Speaker 6: And I think Trump versus the United States might have
35:11
Speaker 6: been the trigger for him. That is a decision where
35:14
Speaker 6: I think he would say that the Court has taken
35:17
Speaker 6: a position that's really at odds with principles of the
35:20
Speaker 6: rule of law, and some steps has to be taken
35:23
Speaker 6: to address that. At the same time, I think this
35:25
Speaker 6: chose a tremendous amount of restraint because what the rest
35:29
Speaker 6: of us were pushing for when he came into office
35:31
Speaker 6: that have been pushing threat is expanding the number of justices,
35:35
Speaker 6: and he hasn't done that. He's gone for with something
35:38
Speaker 6: that's I think both more nuanced and more respectful of
35:41
Speaker 6: partisan balance. It's really much more nonpartisan because it would
35:44
Speaker 6: give to every president to appointments for every term, so
35:47
Speaker 6: that's not a partisan results, but it does reflect the
35:50
Speaker 6: idea that we should move away from that kind of
35:53
Speaker 6: thirty years on the court, which is what we're seeing now,
35:56
Speaker 6: and move to something that is much more like I
35:58
Speaker 6: think with the Founders and.
35:59
Speaker 2: This a recent Annenberg report finds quote, a withering of
36:04
Speaker 2: public confidence in the court, and all the polls basically
36:07
Speaker 2: show the same thing. Has there been another time in
36:09
Speaker 2: history when there's been this crisis of confidence in the
36:13
Speaker 2: Supreme Court.
36:14
Speaker 6: The most prominent time in which there's been a crisis
36:17
Speaker 6: of confidence in the Supreme Court was during President Franklin
36:21
Speaker 6: Roosevelt's administration. The court struck down many crucial pieces of
36:26
Speaker 6: newbial legislation, So there was tremendous, tremendous concern about the court. Now,
36:32
Speaker 6: President Franklin Thosevelt pushed it too far. He tried to
36:35
Speaker 6: pack the court, and that generated a lot of opposition.
36:38
Speaker 6: But that's the period in which most recently we've seen
36:42
Speaker 6: incredible concern about the Supreme Court and I think a
36:45
Speaker 6: sense that it was out of step with popular wealth.
36:48
Speaker 6: This is a time in which there is a concern
36:51
Speaker 6: about the Court in a way that we have not
36:53
Speaker 6: seen for almost one hundred years. So the significance of
36:57
Speaker 6: President Biden's proposals is that it's part of a focus
37:00
Speaker 6: on the court, which again is new within the lifetime
37:04
Speaker 6: of virtually every American.
37:05
Speaker 2: Thanks so much for your insights, Dean. That's Dean William
37:08
Speaker 2: Trainer of Georgetown Law. And that's it for this edition
37:11
Speaker 2: of the Bloomberg Law Podcast. Remember you can always get
37:14
Speaker 2: the latest legal news by subscribing and listening to the
37:17
Speaker 2: show on Apple Podcasts. Spotify and at Bloomberg dot com,
37:21
Speaker 2: slash podcast slash Law. I'm June Grosso and this is
37:25
Speaker 2: Bloomberg