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June 12, 2007
NCAA vs. Bloggers
Should the National Collegiate Athletic Association be able to demand that someone leave an athletic event at a public university for blogging during a game?
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The NCAA thinks it can — and that it can use universities as its enforcers. On Friday, the association did just that when the University of Louisville, acting on NCAA orders, evicted a credentialed reporter for The Louisville Courier-Journal from a baseball playoff game for doing his job. According to the NCAA, it would be fine for the reporter to write online about the atmosphere of a game, the mood of the fans, even the quality of the hot dogs in the stands. But mention that someone just hit a home run — information the NCAA wants to preserve for those that pay to broadcast games — and the reporter is outta there.
The newspaper and its lawyer are furious. The Louisville blogger may not be up there with John Peter Zenger. But the paper says the ejection raises questions of whether the NCAA and universities are violating First Amendment rights and whether the association is trying to rewrite the law to maximize its television profits.
“Once someone hits a home run, that is a public fact and you can’t copyright a public fact,” said Jon L. Fleischaker, the newspaper’s lawyer. By saying that the newspaper could blog during a game that the fans are going wild, but not why they are going wild, the NCAA and the university are “in the situation of making a decision about content” that a newspaper may or may not print, and that “raises First Amendment issues,” he said.
The newspaper is “looking at all of our options” right now, he said, declining to elaborate on whether it would go to court.
Asked if public universities should be in the business of stopping newspapers from reporting events and disseminating information, Fleischaker said that “universities are becoming more and more like purely private economic institutions, especially when it comes to sports.” While Louisville enforced the NCAA’s orders, he said, the problem here is the association, not the university. “It’s the NCAA. It’s an effort to try to get as much money as the NCAA can.”
That’s because the NCAA promises exclusive broadcast rights to networks for various events. The baseball playoff in question was on ESPN. Fleischaker noted, however, the the newspaper wasn’t trying to do play by play, just to provide updates including such relevant information as the score and key events like home runs. Further, he noted that the NCAA is trying to set a standard that would have it policing all kinds of citizens exercising their rights. He asked if the NCAA would try to block someone watching a game on television from blogging about it (and perhaps mentioning the score), or whether the NCAA would try to block a fan from sending a message during a game. “What about the fan with the Blackberry?” he asked.
The University of Louisville indicated that the NCAA had informed it that it needed to enforce the rule against blogging that included information on what was happening during the game. While university officials declined to answer specific questions about why a public university would evict a reporter from an event on campus for reporting on that event, Louisville issued a statement saying: “As an NCAA institution, we must abide by all NCAA rules, including those in hosting NCAA events. Our staff sought an amicable solution to this situation from many angles. It’s unfortunate that it led to the actions that were taken.”
An NCAA spokesman said the following via e-mail: “Reporters covering our championships may blog about the atmosphere, crowd and other details during a game but may not mention anything about game action. Any reference to game action in a blog or other type of coverage could result in revocation of credentials. This pertains to all NCAA championships. Live coverage is considered a protected right that has been granted to CBS as part of a bundled rights agreement. As part of that agreement, ESPN has shared exclusivity on Internet rights for the 22 championships it broadcasts.”
The NCAA press office did not return numerous phone calls and e-mail seeking elaboration on the statement, or responses to the questions raised by the newspaper whose reporter was booted.
The material that resulted in the ejection of Brian Bennett, the reporter, is online at the Louisville paper’s Web site, along with his description of what happened.
“It will be interesting to see if the NCAA can enforce such a policy,” Bennett writes. “What strikes me as really strange is that someone watching ESPN across the street could have blogged every single pitch without a problem. Also, I seriously doubt anyone was reading my blog instead of watching ESPN. I believe my blog served those readers who for some reason or another couldn’t be at the game or get access to a TV (I know this because quite a few emailed me to say just that, and to thank me for my efforts). We got more than 10,000 hits on my blog from the Columbia Regional final last Monday. And college baseball, especially in this area, could use all the publicity it can get.”
Bennett, whose game reports leave no doubt about his enthusiasm for the game, adds: “I hate that this in some small way detracted from what was an otherwise truly remarkable day for U of L baseball.”
His title for his blog post: “Ejected and Dejected.”
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Comments
The definition of broadcasting
The newspaper wants to make this a First Amendment issue, but the NCAA sees what the reporter is doing as broadcasting the game in the same way as ESPN broadcasts the game. It’s an interesting question and one that could have huge ramifications.
Compare this to the fantasy sports phenomenon. Most major sports websites (including ESPN) offer real-time updates of professional and college sports. I can log on to ESPN and find out what’s happening in a matter of seconds. I’m certain ESPN must pay the NCAA, NFL, MBL, etc., for the rights to provide real-time updates.
So from the NCAA’s viewpoint, the reporter is providing the kind of real-time updates that other Internet providers have paid for the rights to do. Yes, it is about contracts and money. From the NCAA’s viewpoint, they have to protect that contract with ESPN or lose the money. Yes, ESPN could use the muscle of the contract to get a refund from the NCAA if the reporter is not stopped from providing real-time updates.
What the NCAA will do about the average fan with a Blackberry is an interesting question. The reporter is posting to what I would assume is a blog affiliated with the newspaper and promoted within the newspaper and the paper’s website. The average blogger doesn’t have that kind of promotional push or readership. Should an unaffiliated blogger rise to that level and catch the attention of the NCAA is a stretch, but it could happen, and the NCAA might argue the fan is no longer acting as a private citizen, but as an independent reporter receiving compensation (ad revenue) from the blog.
So, let’s roll the judicial dice and see where this goes.
DuPont Snoddy, at 8:50 am EDT on June 12, 2007
Whoa
” .. I get some coverage from which the pigs black me out or want me to pay exorbitant fees to receive ..”
Big Sport (NCAA) spars with Big Media (Gannett Co. Inc., USA’s largest newspaper/media chain).
I’d be more careful, calling one David and the other Goliath. More like Godzilla v. Mothra.
L.L., at 9:00 am EDT on June 12, 2007
NCAA is suits
NCAA is business not sports. The focus today is “Show me the money!” It is not about the fans, the players, or even the game. Since it has become another big business, it is part of the They Who Die With The Most Toys Wins culture.
Sigh!
Ollie, at 10:05 am EDT on June 12, 2007
Newspaper is a business, too
NCAA is a business, but so is the newspaper and the Chicago Tribune blogger crew. Telecasts often feature a statement that “accounts and descriptions are property of [insert organization]. I’m not a lawyer, but this seems in the realm of a copyright infringement issue. A fan telling another fan about the game — through email, texting, phone — is difficult to monitor and nearly impossible to prove that the “reporting” in any way damaged the owning institution or organization. But the reporter, by blogging, is drawing support for his newspaper, drawing support AWAY from those who paid for the exclusive right to broadcast and thereby increase viewership and support for their publication. The result of rampant blogging of games would be a devaluing of the right to broadcast — ESPN wouldn’t want to pay as much. That damages the “product,” so the NCAA seems well within its rights.
Should the efforts of the college students, who can draw no monetary gain beyond any scholarships they have, be bought and sold? That’s another issue.
Tony, at 11:35 am EDT on June 12, 2007
NCAA can’t touch this
Have the reporter buy a seat in the stands. He can then send his info into the paper by text mnessage or phone call and the person at the paper can put it into a blog or whatever. Or the report could blog from the stands. Trying to find someone doing this in a game would be tough. Another thought could he blog it from home listening to a radio station who is reporting it?
Feets31, at 12:05 pm EDT on June 12, 2007
Perhaps the NCAA will just head this off at the pass and declare blogging “hostile and abusive” to those being blogged about! :-)
Honestly, I don’t think they have a case against the reporter. We read parts of EFF’s “Bloggers’ FAQ” (http://www.eff.org/bloggers/) in a course I taught last quarter, and from what I can tell the journalist was fully within his rights. It’s not uncommon for major political events (i.e. State of the Union speeches) to be simul-blogged by several different people, and you don’t see CNN complaining that such posts hurt their profit margins. I don’t know enough about sports blogs to know if the same practice is common there, but I do recall that Illinois fans offered play-by-play commentary on fan forums during the 2004-05 basketball season. Besides, ESPN should be grateful for the potential advertising: most sports fans will want to see the games themselves, and those who must rely on blogging might just be convinced to buy premium sports channels!
John, English Dept at OSU, at 9:45 pm EDT on June 12, 2007
NCAA vs Bloggers
Remember when universities were educational institutions and college sports were mostly fun for the students and fond memories for the alumni? This outrageous behavior by NCAA is just one more example of the corporatization of American universities.
John
John, l’maestro di color che sanno at a University, at 4:30 am EDT on June 13, 2007
NCAA is also ignoring precedent
A very similar issue came up 10 years ago, when the NBA attempted to prevent companies from selling sports pagers, which were simply devices pushing out up to the minute sports scores to subscribers. Obviously, the NBA wanted to monopolize that distribution channel if they could. The NBA lost. See NBA v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997). The NBA was hoping that the court would adhere to something called the “hot news misappropriation” doctrine, whose purpose is to prevent competitors from republishing news stories as their own, because the practice amounts to unfair competition. See Int’l News Serv. v. AP, 248 U.S. 215 (U.S. 1918).
The Second Circuit made a distinction between ‘hot news’ and the type of information delivered by sports pagers. Because sports pagers delivered merely factual information, it ruled that copyright law (which disallows facts or ideas to be copyrighted) preempted the state misappropriation law. To grossly simplify a difficult concept, if a state law prohibiting certain activities clashes with federal copyright law, the copyright law trumps.
So there are two issues here: (1) What effect does the NBA v. Motorola decision have in the the Sixth Circuit (where Louisville is located); and (2) If followed, would the Sixth Circuit be able to distinguish this situation from NBA v. Motorola.
As to the first question, the Sixth Circuit isn’t bound by Second Circuit decisions. That said, NBA v. Motorola has been followed in most other federal circuits. Its reasoning is entirely sound.
As to the second question, if the Sixth Circuit followed NBA v. Motorola, it would likely reject the NCAA’s argument that the blogger was misappropriating “hot news.” The Second Circuit limited the hot news doctrine to cases where: (i) a plaintiff generates or gathers information at a cost; (ii) the information is time-sensitive; (iii) a defendant’s use of the information constitutes free-riding on the plaintiff’s efforts; (iv) the defendant is in direct competition with a product or service offered by the plaintiffs; and (v) the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.
The NCAA would only be able to plausibly argue points (i) and (ii) above. While the NCAA does stage games at a considerable cost, and while the information reported is inherently time-sensitive (all sports reporting is), reporting is not typically depicted as free-riding for free-speech and free-press reasons. Additionally, bloggers are not in direct competition with the NCAA, even if the NCAA or its subsidiaries did report on the games themselves through similar outlets. Perhaps most importantly, the fifth prong above isn’t present here—it’s patently ridiculous to think that the NCAA’s incentive to exist and schedule basketball games is substantially threatened by someone live-blogging a game.
Even if the Sixth Circuit court declines to follow NBA v. Motorola, it’s likely that they’d come to the same result via a different route, as the ‘hot news’ doctrine would still need to be confronted, and such a confrontation disfavors the NCAA.
In reality, it’s unlikely it ever gets to court. I suspect the NCAA will come to its senses and avoid the embarrassment of losing such a case in court.
scott pilutik, at 9:55 am EDT on June 13, 2007
Don’t know the specifics of these playoff, but I recently recieved credentials at a championship event. Appendix C was included in the Media package.
http://www.ncaa.org/library/handb...l/2006-07/2006-07_media_handbook.pdf
From Appendix C Quote: All media entities (including message boards and blogs) shall not publicly display any Representations, including but not limited to audio descriptions, written descriptions, game logs, or play-by-play summaries of in-game action until after the completion of that competition or corresponding session that is relative to a particular championship. In-game updates on score and time remaining in competition may be publicly displayed by any media entity whether credentialed or not.
Quote:
Acceptance of this credential constitutes agreement by the bearer and his or her organization to abide by the foregoing conditions. Thank you for your cooperation.
from the article Quote:
*credentialed* {emphasis added} reporter
Lot of assumptions here on my part, but... I’m guessing the reporter got lots of consideration for the credentials (free admission, free parking, likely even free food) and has entered into an agreement with the NCAA and should be expected to abide by the rules, which in the case of the championships are known far ahead of time.
I guess I’d see a lot more of the first amendment isssue if the reporter hadn’t accepted the credentials.
Mark Anderson, at 1:25 pm EDT on June 13, 2007
Reporter was asked to leave the press box, not the event.
http://myespn.go.com/blogs/hashma...ed-blogger-speaks-out.html?post=true
Quote: HM: Did you watch the rest of the game from the parking lot or head back to the office?Bennett: “I stayed in the stadium to watch the final few outs. They only revoked my press credential and asked me to leave the press box. I was not asked to leave the stadium”
Mark Anderson, at 2:25 pm EDT on June 13, 2007
Legality
One can make a strong case that the NCAA is being greedy and exploiting the fans and student-athletes when it does stuff like this, but there is little doubt that it is legal. The event in question was an NCAA tournament game, owned by the NCAA, a private organization. As the owner of the event, it has the right to deny admission to the ballpark to anyone it wants (so long as it isn’t based on impermissible grounds like race, religion, ethnicity, etc.). Thus, it is perfectly legal for the NCAA to allow someone to enter the ballpark with stipulated conditions. The NBA case alluded to above is a different case because there the NBA was actually suing Motorola to stop it from sending real-time game information out on pagers, but the key fact is that Motorola was getting the information off of televised broadcasts of the games. The court said the NBA did not have a protectable property right in the real-time information that was in the public domain. A more on point case is the one a couple years later where the PGA refused to allow reporters onto the premises of a golf tournament unless they agreed to not send out over the internet the real time scores of the golfers. The newspaper sued and the court upheld the PGA’s right to condition admittance as it was doing. The PGA and NCAA cases are almost identical. So you may hate the NCAA as being greedy and exploitive, but what it is doing is not illegal. That baseball game belongs to it and it can control it any way it wants.
Gary, at 9:25 am EDT on June 14, 2007
I respectfully disagree with Gary, who cited the PGA case. The PGA case was limited to the issue of whether antitrust law was implicated where the PGA sought to prevent a second comer attendee free-rider that was *selling* real-time golf scores physically compiled by the PGA. At trial, the PGA even admitted that it made a distinction between the defendant seller and news organizations:
“There’s no problem [with in game dissemination] because that to us is news coverage, and. . . we eagerly, eagerly invite and want the press to do their function, their normal function of gathering and disseminating the news, and because it’s so important to us to have them do that, we told Morris a year ago that we would allow them in the media center to sit there and re-key right from there into their own website and any of their related companies as a matter of news coverage, they could have those real-time scores right away for free.”
The 11th circuit was very careful to state that the case was not about limitations on news organizations, as would be the case here. Reporters are not free-riders, and limitations such as the those the NCAA attempts to reserve for itself implicate First Amendment freedoms and/or copyright law limits.
scott pilutik, at 1:25 pm EDT on June 14, 2007
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NCAA greed
The NCAA is proving that it’s just as greedy as the misers in the other professional sports monopolies (MLB, NFL, NBA, NHL).I’m a Chicago sports fan, and thanks to the bloggers from the Chicago Tribune, who watch televised games from which I am blocked, I get some coverage from which the pigs black me out or want me to pay exorbitant fees to receive.
Greg, at 8:20 am EDT on June 12, 2007