High school athletic associations have exclusive rights to negotiate contracts for Internet live-streaming of their games, a federal appeals court ruled this week.
While the athletic associations celebrate the ruling, newspaper groups are worried that this ruling could lead to even more restrictions down the road, according to the Associated Press.
The case, WIAA v. Gannett Co. Inc. stemmed from an exclusive Internet-streaming contract that the Wisconsin Interscholastic Athletic Association had with American-HiFi for postseason games. In 2008, the Gannett-owned Appleton Post-Crescent newspaper streamed four high school football playoff games without asking for the WIAA's permission.
Gannett argued that the WIAA's tournament games were a public forum "for media coverage of tournament events," and that said forum "extends to Internet streaming," according to the original court ruling. Thus, Gannett argued, by handing a live-streaming contract to another entity, the WIAA was violating Gannett's First Amendment rights.
Last year, U.S. District Judge William Conley ruled that the exclusive contract between the WIAA and American Hi-Fi was constitutional because the WIAA tournament games "are not public forums," and the contract did "not stifle speech or discriminate."
Gannett then took its case to a three-judge panel of the U.S. Court of Appeals for the 7th Circuit in Chicago. Suffice it to say, the judges didn't quite see eye to eye with Gannett.
"Gannett's theory that coverage and broadcast are identical is both analytically flawed and foreclosed by Zacchini v. Scripps-Howard Broadcasting Co.," the judges wrote. "Simply put, streaming or broadcasting an event is not the same thing as reporting on or describing it."
Gannett's lawyer, Robert Dreps, said that the appeals court's ruling "mistakenly compared taxpayer-funded high school sporting events to private entertainment acts and professional sports," according to the Post-Crescent. He also warned that the "long-term commercialization of high school sports will continue and probably increase" as a result of this ruling.
Dreps wasn't the only one taking a pessimistic tone after the ruling this week. Paula Casey, executive director of the Arizona Newspaper Association, said the ruling could "potentially cause problems down the road," according to the AP.
"[I] could see them infringe on what newspapers can do, if they think they can stand up in court," Casey said. "It could make things very tough for newspapers."
Stephen Key, executive director and general counsel for the Hoosier State Press Association in Indiana, told the AP that one such future battleground could be photographers' access. Key suggested that athletic associations might decide to ban newspaper photographers from selling pictures from games, instead deciding to use their own official photographers.
"We may see another outbreak of infighting between newspapers and associations on that issue," he said. "Selling photos is a revenue stream. We're talking hundreds of dollars, not thousands of dollars, covering all the games. But for the newspapers, it is more about control over the content they create."
For perspective on why state athletic associations are looking to generate some extra cash, take the Arizona Interscholastic Association. The AIA spent roughly $2.5 million on state tournaments during the year that ended in July 2011, according to the AP.
Meanwhile, over the first four months of its exclusive streaming contract in 2009, the AIA earned $150,000 in revenue, and reported 1.6 million streams in December 2009 alone, according to court documents the AP examined.
"It's important that [the associations are] able to continue to craft their own deals for the best coverage," said Bruce Howard, a spokesman for the National Federation of State High School Associations, to the AP. "[The ruling] allows not only Wisconsin but other states to do what they've been doing."
It's worth stressing that the only thing that this ruling restricts (for now, at least) is the live-streaming of certain high school athletic events. As Donald Downs, a professor of political science, law, and journalism at the University of Wisconsin-Madison, told the AP, reporters will still have full access to games and can report on them at will, even after this ruling.
"As long as this opinion is applied in a conscientious way, it seems like the damage would be limited. It's only the streaming," Downs said. "[But] I wouldn't want this case to bleed any further. The newspapers are right to be concerned about it. They don't want the line to be blurred any further."
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