September 11, 2011
“Gannett argues that WIAA, a state actor, cannot (ever, it seems) enter into exclusive contracts with a private company for the purpose of broadcasting entire events online.”
“State ownership of property does not automatically open that property to the public wholesale.”
— Judge Diane Wood
WIAA vs. Gannett Co., Inc.
Sometimes, a case that seems simple and benign is really about much more than it appears and something much deeper lurks beneath the surface. Such a case was decided this week by the 7th U.S. Circuit Court of Appeals out of a matter from the western district of Wisconsin. Though it appeared to be a relatively local dispute, it had the potential to have major implications for schools like The Ohio State University.
The matter arose out of media policies of the Wisconsin Interscholastic Athletic Association. The Association represents more than 500 public and private high schools and more than 100 middle schools across the Badger State. Like many high school athletic associations, the WIAA has specific rules governing media coverage of its athletic events. Those rules include limitations on the places that members of the media can be, the contact they can have with athletes and the amount of time those athletes can spend in the media spotlight.
Like many other high school athletic associations and all professional athletic leagues, they also have rules that govern who can broadcast live coverage of their games, be it on television, radio or over the Internet. It is in this last arena where courts continue to work to adapt old rules to new media.
The WIAA grants exclusive contracts to media outlets to broadcast live high school athletic events. This includes an agreement to broadcast high school playoff games over the Internet. A company named American Hi-Fi has paid for those rights and may either broadcast those games or sell the rights to broadcast them to other entities. The Gannett newspaper company decided that this exclusive agreement was not to their liking and, knowing they were doing so in violation of established law and WIAA regulations, live-streamed four high school playoff games on the Internet.
The WIAA sued to prevent further broadcasts. Gannett asked that the case be heard in the federal court system rather than in Wisconsin courts. In a sign of just how fluid the law is as it relates to emerging media, not even Gannett could decide quite why the case should be moved to federal court, actually changing their argument as the case moved forward. The federal court agreed to hear the case and granted a full judgment in favor of the WIAA, enjoining Gannett from any further broadcasts. Gannett appealed and on Wednesday of this week, the 7th Circuit U.S. Court of Appeals sent Gannett packing.
Gannett’s initial claim was that the WIAA’s exclusive broadcast contracts violated copyright law. Of course, as the Court of Appeals pointed out, the WIAA had never filed for copyright protection, wasn’t claiming copyright protection and the case didn’t actually involve any intellectual property. So Gannett moved on to its second claim, that the WIAA was violating its right to free speech. The appeals court found this just as laughable, pointing out that this was not a city council meeting or session of the Wisconsin state legislature. In fact, the court said, this was really just a claim by Gannett that the WIAA could not profit off of high school sports broadcasts solely because the WIAA was a public organization representing mostly public schools.
This is where the real potential impact of this case comes into play, because if a federal court ruled that a public school couldn’t restrict who broadcasted its games, then that same ruling could apply to the University of Wisconsin, the University of Michigan or The Ohio State University. Under that kind of ruling, any fan with a webcam and a wifi connection could wander down to the Horseshoe and set up their own OSU broadcast.
Fortunately for the Big Ten, the 7th Circuit concluded that such a claim was a, “radical and unsupported position” and entirely contrary to existing law. Governments profit from government activities, and particularly from entertainment events like sports, all the time. Furthermore, the Court concluded, we want governments to do that because it reduces their liability on tax income.
Gannett’s position, the court says, misses the point all together. “Gannett’s theory would prevent the schools from retaining the economic benefit of these events; instead, it would effectively transfer whatever benefit remained after the destruction of exclusivity to the private media.” Fortunately, the Court says that the First Amendment, “requires no such draconian rule.” You can read the full text of the decision at ca7.uscourts.gov. And, of course, you can see OSU football only on the fully licensed ABC, ESPN and Big Ten networks.
David Hejmanowski is a magistrate and court administrator for the Delaware County Juvenile Court and provides play-by-play coverage for the Great Lakes Summer Collegiate Leagues fully licensed and approved Game of the Week Internet broadcasts.