Appeals court upholds exclusive licenses for high school sports broadcasts
WISCONSIN — The Wisconsin Interscholastic Athletic Association’s practice of contracting coverage of live high school sports games to an exclusive broadcast partner does not violate the First or Fourteenth Amendment rights of other media, a panel from the 7th U.S. Circuit Court of Appeals ruled Wednesday.
The WIAA contracted with American-HiFi to provide exclusive live streaming of its sports games, including its postseason football tournament. This contract permitted other media outlets to cover games, but not to include live streaming or clips longer than two minutes without the express permission of American-HiFi.
Local newspapers owned by Gannett objected to the decision, and subsequently live-streamed four playoff football games. The WIAA demanded that the newspapers pay licensing fees for streaming content. The newspapers refused, and filed a lawsuit alleging that the WIAA’s contract with American-HiFi infringed upon the First and Fourteenth Amendment rights of media outlets.
A federal district court ruled in favor of the WIAA, finding that the issue was a commercial dispute rather than a constitutional issue. Gannett filed an appeal, and received the support of the American Society of News Editors, The Washington Post and the E.W. Scripps Company, among others, in a friend-of-the-court brief. They argued that because the WIAA is a public organization and postseason events are public, the organization cannot limit news access.
The appellate court disregarded this argument, finding that although live streaming is restricted, the agreement between the WIAA and American-HiFi does not prevent news outlets from covering the games.
“An exclusive contract for transmission of an event is not a gag order or ‘prior restraint’ on speech about government activities,” Judge William Conley wrote for the panel. “The media are free under the policy to talk and write about the events to their hearts’ content. What they cannot do is to appropriate the entertainment product that WIAA has created without paying for it.”
The decision relied heavily upon Zacchini v. Scripps-Howard Broadcasting, a Supreme Court case examining the right to cover an event and to broadcast an entire act. The court found that precedent in Zacchini dictated a difference between coverage and broadcast of the “entire act,” and that “the producer of entertainment [the WIAA] is entitled to charge a fee in exchange for consent to broadcast.”
Kevin Goldberg, legal counsel for the American Society of News Editors, which joined the amicus brief supporting Gannett, said that although he is disappointed the appellate court did not reverse the district court’s decision, he is pleased that the case is more limited than the district court decision was.
“We really felt the need, especially at the appellate level, to push back against what could have been a very damaging district court decision for the future, not only of webcasting sporting events, but credentialing at every level,” he said. “There were nuggets in the federal court decision that could have made that very difficult.”
Goldberg did voice concerns about what the decision means for types of acceptable coverage, such as live blogging.
“Hopefully, courts and local associations and local school boards, everybody takes to heart the clear message from the court that this is not supposed to be a restriction on coverage whatsoever, that this is really nothing more than an okay to enter into an exclusive contract for what is presumably a business activity,” he said. “[But] I could really see an athletic association or a school running with the idea that live blogging or anything resembling live blogging or their version of what resembles live blogging just can’t happen at all.”
The original complaint raised the issue of whether “play-by-play” live blogging qualified as a form of news coverage, but both sides dropped that issue before the case reached the district court.