Wisconsin Athletic Association Fumbles with Lawsuit Over Paper's High School Football Webcast

High school athletics tend to be held out as an important tool for teaching youth important skills: teamwork, fair play, and hard work.  The Wisconsin Interscholastic Athletic Association ("WIAA") is adding one more lesson to the lesson plan: disrespect for freedom of the press.

The Associated Press reports that the WIAA is suing The Post-Crescent of Appleton, Wisconsin; its parent company, Gannett Co.; and the Wisconsin Newspaper Association after the Post-Crescent webcast a high school football playoff game last November.  The WIAA claims that it owns any “transmission, Internet stream, photo, image, film, videotape, audiotape, writing, drawing or other depiction or description of any game action, information or commercial used” of its games.

Peter Fox of the Wisconsin Newspaper Association characterized the WIAA's claim as an "uncomprehensible [sic] overreach":

“They are essentially saying all these news reporting products are subject to WIAA control,” said Fox, whose association represents more than 240 daily and weekly Wisconsin newspapers.

“If Wisconsin weekly and daily newspapers go ahead and capture these athletic events in certain forms of blogging or video or still photography, (the WIAA is saying) that Wisconsin newspapers can’t use them in certain circumstances and they are owned by the private vendors that the WIAA has selected.” (AP)

The WIAA has come under more than a little criticism for its suit.  While newspapers are likely biased in favor of the defendants in this case, the quantity of editorials condemning the WIAA is noteworthy.  An editorial blitz, even:  The Wisconsin State Journal, The Green Bay Press-Gazette, The Sheboygan Press, The Herald Times Reporter, The Post-Crescent, The Spectator (the student newspaper of the University of Wisconsin - Eau Claire), and the Fond du Lac Reporter all slammed the WIAA. And while many of those papers are under Gannett's umbrella, that's still a lot of cranky editorial writers dedicating ink to the cause.  And in my experience, most newspapers' editorialists would be of the exact same opinion, Gannett or not.

The WIAA defended itself in a statement, according to The FdL Reporter, saying: "Without the ability to engage in contractual agreements with media partners, the comprehensive and quality televised programming and Web streams that have become a staple throughout March and the rest of the year will become endangered."

The WIAA might be right about that, but it's hard to think that the WIAA's got much of a legal leg to stand on.  Their constituent schools -- the ones that actually create the product they're attempting to cash in on, i.e. the football -- are all public.  This isn't the NFL, NBA, or MLB, where the event holders/owners are all private organizations.  This is a byproduct of the public school system, and therefore part of the government, potentially a "state actor" for constitutional purposes.  As The Reporters Committee for Freedom of the Press notes, that's likely where the WIAA's lawsuit will fall apart:

The WIAA's contracting scheme -- issuing licenses that preclude the press from covering public events -- could be considered an unconstitutional violation of the First Amendment. That would likely be the case if a court finds that the association is a "state actor"; essentially, an extension of the government. 

A court has a strong basis for designating the WIAA a "state actor," [Mickey Osterreicher, general counsel for the National Press Photographers Association] said, because almost all of its members are public high schools. (RCFP)

We'll see.  Hopefully this is just an incredibly stupid negotiating ploy by the WIAA, and they're not really trying to push their case.  But unless the WIAA has some deep pocket lined up to broadcast all their games for vast profit, they've screwed up royally.  Suing their best conduit for getting games out to the public is a good way to make sure no one sees those games at all.

(Arthur Bright is a second-year law student at the Boston University School of Law and a former CMLP Legal Intern. Before attending law school, Arthur was the online news editor at the Christian Science Monitor.)


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