Wisconsin Group Sues Newspaper, Alleges Exclusive Right to Coverage of High School Sports

The Wisconsin Interscholastic Athletic Association (WIAA) filed a declaratory judgment action in state court Dec. 5, 2008 asserting exclusive ownership of all pictures, video, and written accounts of the Wisconsin high school athletic events it organizes.

According to the complaint, that means any newspaper that streams live game video on its Web site or posts live play-by-play updates of the action without permission is violating the law. The WIAA complaint asks the Portage County (Wis.) District Court to issue “an order declaring the rights of the WIAA to control the transmission, internet stream, photo, image, film, videotape, audiotape, writing, drawing or other depiction or description of any game … that it sponsors, and that it has the right to grant exclusive rights to others” to control depictions of the games.

According to its Web site, the WIAA organizes state championship tournaments for 14 different girls’ and boys’ sports for its member schools around the state. Regular season games are not subject to the WIAA policies. The WIAA includes both public and private schools.

Several media companies licensed by the WIAA to broadcast the events joined the association in the lawsuit against Gannett Co. and the Wisconsin Newspaper Association (WNA). Gannett owns The Post-Crescent (Appleton, Wis.), which streamed live video on the Internet of a Nov. 8, 2008 football game between Appleton North and Stevens Point public high schools in violation of the WIAA media rules, the complaint said. The WNA also sent a letter to the WIAA in October questioning the legality of its media rules.

Those rules, published in the WIAA’s 2008-09 Media Policy Guide, purport to prohibit newspapers, or any other enterprise, from providing live coverage of athletic events sponsored by the WIAA without a license.

“Newspapers transmitting ‘real-time’ or ‘live’ text, audio, image or video depicting action of [WIAA] events is considered similar to that of a play-by-play radio or television broadcast and are subject to rights fees,” the media guide states. It also informs the newspapers that permission to stream video over the Internet is only available from When We Were Young Productions, a private company with exclusive rights to cover WIAA events.

In addition to license fees ranging from $250 to $1,500 and permission from the private production company, newspapers that want to stream video of WIAA events are also required to turn over a copy of the video to When We Were Young to be repackaged and sold at a profit, a letter from the WNA attorney to the WIAA said.

That letter, dated Oct. 31, 2008, argued that the WIAA policies prohibiting live coverage of games and matches involving public high schools are unconstitutional. Because the WIAA is a “state actor,” the First Amendment forbids rules that bar reporters from using all available technology to report on the athletic events, the letter said.

“The WNA does not object to reasonable fees paid to host schools to cover their costs of producing the events, including any costs specifically incurred to facilitate internet streaming coverage. To require [newspapers] to pay fees to a competing news organization and relinquish ownership of their work product, however, is plainly unconstitutional,” the letter said.

The letter cited several cases to support its argument, including Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001). In Brentwood Academy, the U.S. Supreme Court held that a Tennessee athletic association similar to the WIAA was a state actor and therefore must comply with the requirements of the First and Fourteenth Amendments.

A federal district court in Wisconsin reached a similar conclusion in a 1975 case, holding the WIAA could be sued under 42 U.S.C. 1983 for violating a student’s constitutional rights “under the color of state law.” The case, Leffel v. Wisconsin Interscholastic Athletic Association, 398 F. Supp. 749 (E.D. Wis. 1975), was brought under federal statutes and constitutional provisions requiring equal treatment for student athletes regardless of gender. The WNA letter did not cite Leffel.

In contrast to the WNA’s letter, the WIAA’s December 5 lawsuit cited no legal authority for its assertion of ownership in public high school athletic events. Although the complaint cited the WNA letter, it failed to address whether the athletic association is a private actor. Rather, it argued that a game or match is an “entertainment event and not a governmental function” and therefore outside the scope of First Amendment news gathering protections.

After the WNA learned of the legal complaint in late February, more than 20 Wisconsin newspapers responded with a barrage of criticism in editorials, opinion columns, and even a cartoon in the Green Bay Press-Gazette lampooning the legal complaint’s requested prohibition on “drawing” high school sporting events. Those columns and editorials, along with other documents related to the case, are available from the WNA at www.wnanews.com/index.asp?menuid=526.

An editorial in the March 12, 2009 Wisconsin State Journal (Madison) argued state high school sports tournaments “belong” to the public, not the WIAA. “High school sporting events and the cherished memories they create belong to the athletes, their families, friends and fans. They don’t belong – every word, image and sound from the biggest games – to the Wisconsin Interscholastic Athletic Association.”

“The WIAA needs to lighten up and realize that newspapers across Wisconsin are the biggest force publicizing their events with the most in depth and continuing coverage. And with new technology, newspapers are now posting video clips and blogging about games as they occur to keep fans better informed,” the editorial continued.

The WIAA responded to critics in a March 6, 2009 press release that said the lawsuit was filed in response to the WNA’s October letter in an effort to protect resources that pay for high school tournaments. The letter said WIAA is not seeking any damages or other remedies for past violations of the policies.

The press release argued that the WIAA is a private actor and its licensing revenue, which could be jeopardized by live streaming on newspaper Web sites, is necessary to support the state tournaments it sponsors.

“The WIAA is a private, not-for-profit association comprised of more than 500 volunteer member high schools in the state. The Association receives no direct revenues from the State through taxes, and approximately 90 percent of its operational budget is generated though gate receipts of Tournament Series events and its business agreements. It is these revenues that the WIAA uses to secure the use of tournament venues and reimburse its member schools for tournament expenses,” the press release said.

The release also argued that its policies do not interfere with traditional newspaper reporting, but only with attempts at live transmission of the play-by-play information. “The WIAA is not denying any newspapers from their traditional method of reporting on events, instead, making a clear distinction between reporting and live transmission of an event. In addition, any media may use up to two minutes of actual game highlights for its video news stories on the Web site, the same guidelines television has practiced for years.”

Later in March 2009, the WNA filed a motion to move the case from state court to federal district court in Madison, Wis. The WNA also filed a response and counterclaim asserting its constitutional arguments in federal court, The Associated Press reported March 25.

According to a March 24, 2009 story in The Lakeland Times (Minocqua, Wis.), an attorney for the WNA said the case should be moved to federal court because it deals with matters of federal copyright law, not state law.

The WIAA and Wisconsin’s newspapers have quarreled about coverage of state high school athletic events before. In 2007 the athletics group announced it had granted exclusive photo rights to a private company and newspapers risked losing state tournament press credentials unless they stopped their long-time practice of selling photo reprints to the families and friends of student athletes, the AP reported March 7, 2009.

Most newspapers criticized the rule and continued to sell the reprints anyway. The WIAA never followed through on its threat to revoke credentials, the AP report said.

A similar dispute between press groups and a high school athletics association about photography rights in Illinois led the Illinois Senate to pass a law guaranteeing press access to high school athletic events, the National Press Photographers Association reported April 1, 2008. But a companion bill in the Illinois House, H.B. 4582, died because it was not voted on before the session ended Jan. 13, 2009. (See “Illinois Press Association Sues High School Sports Association over Image Controls” in the Fall 2007Silha Bulletin.)

– Michael Schoepf
Silha Fellow

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