This was the judicial equivalent of damning with faint praise. In a breach of contract suit in New York, a federal jury unanimously agreed today with one of Dish Network‘s four claims against ESPN. It required the Disney-owned network to pay Dish $4.86M — a mere 3.2% of the $153M in damages that the satellite company wanted. The case revolved around an 8-year programming agreement that Dish and ESPN made in 2005. It included what’s known as a most-favored-nation clause: If ESPN gave a better deal to another distributor, then it had to extend the same terms to Dish. The satellite company said that ESPN violated the terms in 2009 when it allowed Comcast to carry ESPN Classic on a special tier composed of little-watched channels, and let DirecTV do the same with Spanish-language ESPN Deportes. Dish later also said that Time Warner Cable, Verizon, and AT&T had better terms with ESPN. The jury only agreed with the claim involving ESPN Deportes. Dish and other pay TV distributors have a long-running love/hate relationship with ESPN. They consider it a must-have channel, but resent the high cost. ESPN costs an average of $5.54 per subscriber per month, according to SNL Kagan, while ESPN 3D is $2.79, ESPN2 is 69 cents, and ESPNews, ESPN Classic, ESPNU, and ESPN Deportes each cost about 20 cents. “To deliver the best programming at the best value to our customers, DISH will remain vigilant in our efforts to ensure that programmers honor their contractual commitments,” Dish General Counsel Stanton Dodge says. Weil, Gotshal & Manges’ Diane Sullivan and David Yohai represented ESPN, and Simpson Thacher & Bartlett’s Barry Ostranger represented Dish.
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