ESPN, Inc. v. Office of the Commissioner of Baseball
United States District Court for the Southern District of New York
76 F. Supp. 2d 383 (1999)
Under a 1996 broadcast contract, ESPN (plaintiff) could preempt up to 10 baseball games per season for other programming, but only with Baseball's (defendant) written approval, which Baseball could not unreasonably withhold. In 1998, ESPN sought to preempt three games for football coverage; Baseball refused, but ESPN preempted the games anyway, and Baseball continued the contractual relationship without terminating. The same scenario recurred in 1999 - Baseball refused approval, ESPN preempted anyway - and this time Baseball terminated the contract, claiming material breach. ESPN sued, Baseball counterclaimed for breach, and ESPN raised election of remedies as an affirmative defense to Baseball's counterclaim; Baseball moved to bar that defense, also arguing the contract's no-waiver clause overrode the doctrine.
Whether, under the doctrine of election of remedies, a non-breaching party who chooses to continue a contract after a material breach may later terminate the contract based on that same breach.