Time out! Federal Court Decision Clarifies Ownership of Broadcast Rights in High School Sports Events

By Osborne, Barbara; Batista, Paul J. | Sport Marketing Quarterly, March 2012 | Go to article overview

Time out! Federal Court Decision Clarifies Ownership of Broadcast Rights in High School Sports Events


Osborne, Barbara, Batista, Paul J., Sport Marketing Quarterly


Can the local newspaper simply show up at a post-season high school football game, set up a video camera and live stream the entire game on its website ... all under the banner of the First Amendment?

That was the crux of the issue in a federal court case decided this past summer (WIAA v. Gannett Co., 2011). At stake was the ability of the Wisconsin Interscholastic Athletic Association (WIAA), the governing body for middle and high school athletics in the state of Wisconsin, to exclusively sell the video rights to its post-season tournament games. On the opposite side of the ball stood Gannett Company, corporate owner of the Wisconsin newspaper that asserted that the tournament games constituted a public forum. Thus, they argued, their ability to broadcast the games was protected by the Free Speech provisions of the First Amendment. Fortunately for state high school athletic associations nationwide, this case of first impression resulted in an end-to-end touchdown run for the state high school athletics association.

Facts and Case History

The WIAA is a voluntary, nonprofit organization with 506 public and private high schools and 117 junior high and middle school members. The WIAA hosts and administers 25 State Championship Tournaments in boys and girls individual and team sports. The championships are conducted at a variety of venues across the state, and the WIAA pays a fee to rent or lease the facilities. Spectators at these events pay a fee for admission (WIAA v. Gannett, 2010).

The WIAA entered into a 10-year contract with American Hi-Fi in May 2005 to produce and distribute broadcast quality video of specific state tournament events "through all physical, electronic and broadcast media, including the internet" (WIAA v. Gannett, 2010, p. 7). The exclusive licensing agreement was typical of the many agreements made by high school athletics associations, athletics departments at colleges and universities, and athletics conferences. Specifically, if American-HiFi chose not to provide video streaming of a particular event, other broadcasters were required to obtain permission from American-HiFi in order to broadcast the event. The WIAA charges a standard fee of $250 for one camera used to broadcast, and $1,500 for more than one camera. American-HiFi retained the rights to post the master copy of the video of the event to the archives section of its website. Should the video be sold to a third-party network or broadcaster, the party who originally recorded the event would receive a 20% commission (WIAA v. Gannett, 2010, p. 17-18).

In 2007, the WIAA and American Hi-Fi created a web portal and started live streaming the events. Soon thereafter, the WIAA updated its Media Policies Reference Guide and limited the media reporting to two minutes of video in its sports broadcasts or on web pages. Any other use of video was subject to rights fees (WIAA v. Gannett, 2010, p. 15). In October and November of 2008, a local newspaper owned by the Gannett Company brought video cameras to four playoff football games and broadcast the games in their entirety by video streaming live on the newspaper's website (WIAA v. Gannett, p. 20). Although the WIAA tried to negotiate with the newspapers, they asserted that the First Amendment entitled them to broadcast the events without having to pay a fee. The inability of the parties to resolve their dispute through settlement talks resulted in this lawsuit.

The district court identified and addressed a number of key issues, including: whether the WIAA's exclusive internet streaming contract was a violation of the First Amendment; whether charging fees to stream games violated the First Amendment; and whether the WIAA had too much discretion to refuse licenses to those who wanted to stream games (WIAA v. Gannett, 2010, p. 27).

In a lengthy decision, District Judge Connelly granted the WIAA's motion for summary judgment and declared that their licensing scheme did not violate either the free press clause of the First Amendment or the equal protection clause of the Fourteenth Amendment and that the newspapers did not have a copyright in the games that they had streamed without the WIAA's permission (WIAA v. …

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