Time out! Federal court decision clarifies ownership of broadcast rights in high school sports events.

Osborne, Barbara ; Batista, Paul J.

Can the local newspaper simply show up at a post-season high school football game, set up a video camera and live stream the entire game on its website ... all under the banner of the First Amendment?

That was the crux of the issue in a federal court case decided this past summer (WIAA v. Gannett Co., 2011). At stake was the ability of the Wisconsin Interscholastic Athletic Association (WIAA), the governing body for middle and high school athletics in the state of Wisconsin, to exclusively sell the video rights to its post-season tournament games. On the opposite side of the ball stood Gannett Company, corporate owner of the Wisconsin newspaper that asserted that the tournament games constituted a public forum. Thus, they argued, their ability to broadcast the games was protected by the Free Speech provisions of the First Amendment. Fortunately for state high school athletic associations nationwide, this case of first impression resulted in an end-to-end touchdown run for the state high school athletics association.

Facts and Case History

The WIAA is a voluntary, nonprofit organization with 506 public and private high schools and 117 junior high and middle school members. The WIAA hosts and administers 25 State Championship Tournaments in boys and girls individual and team sports. The championships are conducted at a variety of venues across the state, and the WIAA pays a fee to rent or lease the facilities. Spectators at these events pay a fee for admission (WIAA v. Gannett, 2010).

The WIAA entered into a 10-year contract with American Hi-Fi in May 2005 to produce and distribute broadcast quality video of specific state tournament events "through all physical, electronic and broadcast media, including the internet" (WIAA v. Gannett, 2010, p. 7). The exclusive licensing agreement was typical of the many agreements made by high school athletics associations, athletics departments at colleges and universities, and athletics conferences. Specifically, if American-HiFi chose not to provide video streaming of a particular event, other broadcasters were required to obtain permission from American-HiFi in order to broadcast the event. The WIAA charges a standard fee of $250 for one camera used to broadcast, and $1,500 for more than one camera. American-HiFi retained the rights to post the master copy of the video of the event to the archives section of its website. Should the video be sold to a third-party network or broadcaster, the party who originally recorded the event would receive a 20% commission (WIAA v. Gannett, 2010, p. 17-18).

In 2007, the WIAA and American Hi-Fi created a web portal and started live streaming the events. Soon thereafter, the WIAA updated its Media Policies Reference Guide and limited the media reporting to two minutes of video in its sports broadcasts or on web pages. Any other use of video was subject to rights fees (WIAA v. Gannett, 2010, p. 15). In October and November of 2008, a local newspaper owned by the Gannett Company brought video cameras to four playoff football games and broadcast the games in their entirety by video streaming live on the newspaper's website (WIAA v. Gannett, p. 20). Although the WIAA tried to negotiate with the newspapers, they asserted that the First Amendment entitled them to broadcast the events without having to pay a fee. The inability of the parties to resolve their dispute through settlement talks resulted in this lawsuit.

The district court identified and addressed a number of key issues, including: whether the WIAA's exclusive internet streaming contract was a violation of the First Amendment; whether charging fees to stream games violated the First Amendment; and whether the WIAA had too much discretion to refuse licenses to those who wanted to stream games (WIAA v. Gannett, 2010, p. 27).

In a lengthy decision, District Judge Connelly granted the WIAA's motion for summary judgment and declared that their licensing scheme did not violate either the free press clause of the First Amendment or the equal protection clause of the Fourteenth Amendment and that the newspapers did not have a copyright in the games that they had streamed without the WIAA's permission (WIAA v. Gannett, 2010, p. 75). Gannett appealed the decision to the Seventh Circuit.

The Seventh Circuit Opinion

The sole issue on appeal before the Seventh Circuit was whether WIAA's contract granting American-HiFi the exclusive right to stream tournament games, and requiring consent and payment for third-party broadcasts of entire games, violated the First Amendment (WIAA v. Gannett, 2011).

The Seventh Circuit began addressing the merits of the case by examining the actions of the WIAA. In licensing media rights, the WIAA acted in a proprietary rather than regulatory manner, which requires that the government action be reasonable. Gannett argued that the WIAA was engaging in discrimination on the basis of viewpoint by granting exclusive licenses to broadcasters or in requiring authorized approval for third parties to stream a game. Viewpoint neutrality requires that government actions which impact free speech rights must be done in a neutral way that does not discriminate based on the point of view of the message advocated. The Seventh Circuit found this to be a weak claim: "... we are at a loss to see any viewpoint bias in the Media Policies" (2011, p. 22). Precedent established by Arkansas Educational Television Commission v. Forbes (1998) directs against subjecting broadcasters to claims of viewpoint discrimination because of the nature of editorial discretion. Similarly, Chicago Acorn v. Metropolitan Pier & Exposition Authority (1998) explains: "Whenever the government is in the business of speech, whether it is producing television programs or operating a museum or making grants or running schools, the exercise of editorial judgment is inescapable" (p. 701). Because the WIAA's proprietary action is as the creator and disseminator of content, it is not restricted by the viewpoint neutrality requirement.

The next distinction that the Seventh Circuit addressed was between reporting on and "covering" events versus broadcasting the entire event. The court relied on the Zacchini v. Scripps-Howard Broadcasting Company (1977) case for precedent. In Zacchini, a television station broadcast the entire act of the "human cannonball," Hugo Zacchini. The Supreme Court determined that there was a difference between reporting that an act was taking place, or describing the act after the fact, and showing the entire act without the performer's consent (Zacchini, 1977). Clearly, the actions of the newspapers in broadcasting the entire game on their websites without the WIAA's permission were not protected by the freedom of the press clause of the First Amendment.

The Zacchini case also controls relative to the right to charge a fee for broadcasting events. The Supreme Court recognized the economic value of a performance and that the producer of entertainment is entitled to charge a fee in exchange for consent to broadcast (Zacchini, 1977). Consequently, the First Amendment does not provide a right for the media to appropriate the products of others, even state actors such as the WIAA, without consent or remuneration (WIAA v. Gannett, 2011).

The Seventh Circuit also clarified several First Amendment principles relative to Gannett's arguments and the district court decision. First, a sporting event, as entertainment, is subject to the same First Amendment scrutiny as political events. Next, exclusive licensing agreements are not a prior restraint on media speech or censorship. The WIAA media policies did not control what was reported about their events; instead, it merely limited the length of footage of the event itself that was broadcast (WIAA v. Gannett, 2011). Finally, the Seventh Circuit rebuffed Gannett's argument that the WIAA had "unbridled discretion" to grant or deny broadcast licenses by indicating that the case precedent offered by Gannett in support of this argument was inapplicable because "newspapers do not have the underlying right to broadcast an entire event" (WIAA v. Gannett, 2011, p. 32).

The final area of contention that the Seventh Circuit addressed was whether there are any First Amendment reasons why the WIAA should be limited in their ability to raise revenue. Gannett argued that a state actor cannot raise revenue, a position that the Seventh Circuit describes as "radical and unsupported" (WIAA v. Gannett, 2011, p. 33). Prior Supreme Court precedent establishes that a private company may serve as a state actor's exclusive rights holder and agent and that raising revenue is reasonable for the government in its proprietary capacity (Lehman v. City of Shaker Heights, 1974). The court found that generating revenue to support its mission of providing post-season championship opportunities to high school athletes is a reasonable objective of the WIAA. The amicus briefs also supported the need for school districts to be able to grant exclusive broadcasting contracts in order to raise revenue to support the production of those events.

In confirming the district court's decision to grant summary judgment for the WIAA, the Seventh Circuit felt it was important to address some of the broader implications of this case. Beyond a simple decision that tournament games are a performance product of WIAA that it has the exclusive right to control, the distinction between coverage of an event and transmitting the entire event is important for all situations involving the right of public access. Although the media may have a right to attend these events, there is no corollary right to broadcast live or record the entire event or proceeding. Further, state actors acting in a proprietary capacity must be given the discretion to use exclusive contracts to protect the economic value of their products and also to generate revenue in the same way as private actors (WIAA v. Gannett, 2011).

Implications for Sports Marketers

The importance of this case was underscored by the parties that filed Amicus Briefs in support of WIAA: the National Federation of State High School Associations (NFHS), the University of Wisconsin, and a brief filed jointly by the states of Arizona, California, Florida, Georgia, Indiana, Michigan, Minnesota, Missouri, New York, and Ohio. An adverse decision would have impacted not only all high school athletics associations, but potentially all public universities and intercollegiate athletics as well.

This case holds several important implications for sports marketers. Whether the sport organization is a state actor or a private entity, in either case it may own the exclusive rights to production of events, and these rights may be licensed to third parties for a fee. High school athletics associations and public colleges or universities that are considered state actors are not limited by First Amendment free speech or free press implications in granting exclusive broadcasting licenses to its sponsored events. Additionally, a state actor must be conscious not to discriminate in awarding media credentials on the basis of viewpoint, but as long as media policies do not attempt to control the content of the event coverage, there are no First Amendment implications. While the media and general public may have a right to attend an event, that right does not authorize broadcasting the entire event without the express consent of the organizer. Finally, media policies that restrict the length of footage that media outlets broadcast are also deemed to be constitutional.

References

Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998).

Chicago Acorn v. Metropolitan Pier & Exposition Authority, 150 F.3d 695 (7th Cir. 1998)

Complaint, Wisconsin Interscholastic Athletic Association v. Gannett Co., Inc., 2009 U.S. Dist. Ct. Pleadings LEXIS 1787 (2009).

Lehman v. City of Shaker Heights, 418 U.S. 298 (1974)).

Wisconsin Interscholastic Athletic Association v. Gannett Co., Inc., 716 F.Supp. 2d 773 (U.S.D.C. Western Dist. Wisc., 2010).

Wisconsin Interscholastic Athletic Association v. Gannett Co., Inc., 2011 U.S. App. LEXIS 17684 (7th Cir. 2011).

Zacchini v. Scripps-Howard Broadcasting, 433 U.S. 562 (1977).

DISCLAIMER: Inquiries regarding this feature may be directed to series co-editors Dr. Steve McKelvey at mckelvey@isenberg.umass.edu and Dr. John Grady at jgrady@mailbox.sc.edu. McKelvey is an associateprofessor and graduate program director in the Mark H. McCormack Department of Sport Management at the University of Massachusetts Amherst. Grady is an associate professor in the Department of Sport & Entertainment Management at the University of South Carolina.

The materials in this column have been prepared for informational and educational purposes only, and should in no way be considered legal advice. Readers should not act or reply upon these materials without first consulting an attorney. By providing these materials it is not the intent of the authors or editors to enter into an attorney-client relationship with the reader. This is not a solicitation for business. If you choose to contact the authors or editors through email, please do not provide any confidential information.

Barbara Osborne, JD, is an associate professor in exercise and sport science, and an adjunct professor in law at the University of North Carolina at Chapel Hill. She also serves Of Counsel with Ice Miller, LLP in the College Sports Practice Group, assisting college and university athletics programs with a variety of legal needs. Her research focuses on legal issues in intercollegiate athletics, Title IX, and women's issues in sport.

Paul J. Batista, JD, is an associate professor, division chair of the sport management program, and associate department head in the Department of Health and Kinesiology at Texas A&M University. His primary research interest is sports related liability issues in school settings, with particular emphasis on First Amendment religion and free speech issues.