Exclusive? Media, athletic groups await ruling on high school broadcast rights

The ability to access and cover high school sporting events is valuable to the communities involved, media organizations and the athletic associations that sponsor the events. Although media presence at these public events is a long-standing and accepted practice, the definition of news coverage continues to be under debate, especially at the tournament level.

State athletic associations are responsible for organizing high school sports tournaments. Organizing a post-season tournament involves coordinating schedules, hiring officials, renting facilities to hold the events, contracting sponsors — and managing press restrictions and credentials.

While press regulations exist at all levels of sports, from professional to college to high school, court battles over media ownership rights and press freedoms continue to arise, particularly at the high school level.

Waiting in Wisconsin

The constitutionality of selling exclusive broadcast rights for high school tournaments has been called into question in Wisconsin.

The Wisconsin Interscholastic Athletic Association, which runs the state high school sports tournaments for over 500 member schools, licenses exclusive rights to broadcast its events. Under current WIAA policy, an organization can purchase streaming rights for individual games. Other broadcasts without the license are limited to a two-minute length.

In 2009, the Appleton Post-Crescent live-streamed high school football tournament games without a license. When We Were Young Productions, a subsidiary company of American Hi-Fi, holds the exclusive broadcast rights for high school football tournaments, and the WIAA demanded the Post-Crescent pay the licensing fee.

The WIAA sued the Wisconsin Newspaper Association and Gannett Co., Inc., which owns the Appleton Post-Crescent and publishes newspapers across the nation including 10 daily and 19 non-daily newspapers in Wisconsin. Through the lawsuit, WIAA sought a declaration that it has ownership rights over “any transmission, internet stream, photo, image, film, videotape, audiotape, writing, drawing or other depiction” of the events it organizes, as well as the ability to sell exclusive broadcast rights.

Gannett counter-sued, arguing that selling exclusive broadcast rights for high school sporting events is a violation of the First Amendment.

In July 2010, a U.S. District Court in Wisconsin ruled in favor of WIAA.

“Ultimately, this is a case about commerce, not the right to a free press,” according to the court’s decision. “Even with respect to those games for which American Hi-Fi holds exclusive rights, the defendants remain free to (1) publish stories on the games, (2) express opinions about them and (3) offer limited live coverage.”

Gannett appealed, and the case was argued Jan. 14 before the 7th U.S. Circuit Court of Appeals. A decision could come at any time.

Robert Dreps, the attorney representing the media in the case said, “We knew it was an uphill battle when we took it on because of a pretty long history here in Wisconsin of exclusive television contracts. But at the same time, it seemed that granting such broad exclusivity without any standards for re-licensing others was a violation of the First Amendment.”

Several media outlets joined together on a friend-of-the-court brief supporting Gannett and WNA and seeking to overturn the earlier decision. They include the American Society of News Editors, Chicago Tribune Company, the E.W. Scripps Company, GateHouse Media, Hearst Corporation, the Illinois Press Association, the Journal Broadcast Group, the Journal Sentinel, Inc., Lee Enterprises, the McClatchy Company, the National Press Photographers Association, the Newspaper Association of America, the Online News Association, Sun Times Media and The Washington Post.

In the brief, the media groups argue, “The WIAA is a state actor and the tournaments it sponsors are public events, staged on public property that is opened generally to the public and the media, and paid for with public funds. It cannot adopt the model of a private, professional sports business.”

The media also claim the WIAA has established an unconstitutional prior restraint “by requiring that media companies purchase a license to report audio, video or text transmissions on newsworthy, government sponsored events that are open generally to the public.”

Todd Clark, WIAA spokesperson, said the association only has jurisdiction over post-season tournament events and sponsors them “without any taxpayer dollars afforded to the association to host these tournaments.”

Clark said the tournament series the WIAA hosts are funded through admissions fees, which account for 85-90 percent of revenue, and broadcast rights agreements for transmissions of the games, which account for 5-6 percent of revenue. Clark also said the revenue generated allows the WIAA to pay the fees associated with renting the facilities used, which WIAA does not own, and hire officials for the games.

“There’s sort of a misperception that’s out there that taxpayers’ dollars are going into funding these tournaments and they’re not,” Clark said. “We are not tax driven; we support ourselves. While it’s not all about making millions of dollars, because we’re a not- for-profit association, it is about being able to pay the rental fees, for the quality facilities.”

However, the media groups argue, “WIAA’s profit motive does not insulate it from the First Amendment’s obligations. Having opened public tournament events to the public generally, and to coverage by the media, the WIAA cannot play favorites when it comes to speech.”

An agreement in Illinois

In 2007, an exclusive rights battle played out over photo policies and Internet streaming between the Illinois Press Association and the Illinois High School Association, resulting in a 2008 settlement rather than a court decision.

The IHSA formed an exclusive photography contract with Visual Image Photography Inc. that granted unlimited access and photography opportunities at IHSA tournaments. Newspapers were required to sign an agreement for media credentials that limited their access during the events and prohibited any photographs other than those being printed in the newspaper. Newspapers covering the athletic tournaments were selling photographs of the events on their websites and VIP’s exclusive photo contract with IHSA was intended to prevent newspapers from selling photos of the events.

The IPA, representing the news media, sued the high school association in November 2007 to combat what it believed was access discrimination and prior restraint over newspapers’ “secondary use” of photographs and game coverage.

IHSA countersued in December 2007, seeking a declaration that IHSA had the right to sell any photographs taken during high school sporting events, to deny access to newspapers if they wouldn’t comply with IHSA’s policies and limit secondary use of newspaper photography.

When photographers refused to agree to IHSA’s terms for media credentials, IHSA began restricting access to photographers and newspapers. Five Illinois newspapers were denied sideline access during state football championships because they refused to comply with IHSA’s policies.

That prompted legislation in Illinois to be introduced that protected equal access at all school events — from elementary to high school, including sports and academic events. The bill also would have prevented any interscholastic association from attempting to regulate the practices of the news media.

As the bill quickly gained support, the IPA and IHSA reached an out-of-court settlement.

Part of the settlement involved stopping the bill from proceeding to passage. In addition to stopping the bill, IHSA agreed it “will assert no authority to control or regulate production, distribution or sale of any newspaper product. Nor will any newspaper access credentials to IHSA sponsored events be conditioned by any limitation on the production, distribution, or sale of any newspaper product.”

The press was also guaranteed equal access to photographer shooting zones established by IHSA in IHSA-sponsored games, and IHSA was allowed to retain an official photographer with unrestricted access to create content for the exclusive use of the IHSA.

Don Craven, IPA attorney, said the proposed legislation played a significant role in the two sides reaching the settlement.

A new contract

In September 2010, the IHSA signed a new exclusive broadcast rights agreement with WWWYP, the same company that holds the right to broadcast the football tournament events in Wisconsin.

Craven said the agreement shouldn’t affect newspapers’ current practices. Newspapers were streaming games prior to the agreement, and have been since, and as part of the settlement between the IHSA and the IPA, the IHSA is not allowed to interfere with how newspapers disseminate their content, he said.

Craven said the purpose of anyone streaming high school athletic games is to reach those of interest to the event. There isn’t a huge amount of interest in high school sports, aside from family or those with ties to the student athletes, he said.

IHSA spokesman Matt Troha said exclusive broadcast rights agreements with state athletic associations aren’t uncommon.

“Everybody tends to do it a little bit differently, because all the states are set up a bit differently, but most state high school associations have some kind of deal with some entity to carry their television stuff,” Troha said. “I don’t know of any state that would simply allow anybody that would show up and start to broadcast.”

Troha and the IHSA – along with a great many new organizations across the country – are keeping their eyes on what happens in Wisconsin at the Seventh Circuit.

“We’re monitoring it because we think it has ramifications for all state high school associations, and really for all televised athletic events,” he said.

By Kyle McDonald, SPLC staff writer

reports, Spring 2011