Access to student athletic events

Media organizations are crying “foul” over a movement among sports leagues, from high schools to the pros, to restrict how newspapers and broadcasters use — and re-use — the pictures and information gathered at games.

Photographers have been shooed from the sidelines, and bloggers ejected from the press box, because sports leagues wanted tighter control over the way words and pictures of sporting events are distributed.

Leagues argue that they’re simply protecting their investment — and the investment of the broadcasters who pay big money for the right to air their sporting events. And the leagues contend that the media’s right to report on a news event doesn’t include the right to profiteer off the event, such as by selling souvenir prints of sports photos. But media organizations fear they’re being asked to compromise their editorial independence by surrendering greater and greater control — even ownership of their own photographs and video — to the athletic leagues they cover.

The clash came to a head recently in Illinois, when that state’s high school athletics association tried to prevent news organizations from selling reprints of photos taken at football games. The newspapers responded with a lawsuit, two pieces of hostile legislation, and a torrent of bad publicity. That confrontation recently concluded with a negotiated settlement. But similar restrictions remain on the books in other states, including Pennsylvania, and it’s likely that courts will have the final say.

The legal right of a journalist to demand unrestricted access to a sports competition — and the legal right of a sports league to control how journalists use the fruits of their newsgathering — is highly unsettled. Further controversies are unavoidable, so sports journalists must tread carefully when they step into the arena.

Going on the offense

Anyone who watches sports is familiar with the standard legal-ese disclaimer that has been appearing on television broadcasts for over half a century. Typically, it goes something like this: “The accounts, pictures and descriptions of this game may not be used without the express written consent of the commissioner.” But few people stop to think about how much control a sports league truly does (or doesn’t) have over how information and images from sporting events can be shared.

Since the earliest days of broadcasting, organizers have recognized that a sports competition is a valuable entertainment property, and have made fortunesselling the right to broadcast games. The key to the value of broadcast rights is exclusivity; after all, no one would pay the National Football League or the International Olympic Committee billions of dollars for broadcast rights if a competitor could simply set up its own cameras and carry the same broadcast forfree.[1] To protect the value of these exclusive rights, sports leagues have tried to block or restrict media access by anyone other than the official rights-holder. As far back as the 1930s, the Pittsburgh Pirates successfully sued a radio station for stationing spotters at strategic places around the Pirates’ ballpark so they could relay the action back to the station for a delayed play-by-play broadcast, competing with the “official” radio station that had paid big money for the contract to broadcast Pirates baseball.[2]

In recent years, athletic organizers have become even more aggressive about protecting the value of their on-the-field performances, for two reasons. First, the value of exclusive broadcasting contracts has skyrocketed. And second, sports leagues and conferences are themselves getting into the business of broadcasting and webcasting their events. At the college level, for example, UCLA and USC are selling subscription packages that allow viewers worldwide — for a fee — to watch streaming online video of everything from baseball to water polo, including press conferences and post-game interviews.[3] This means that other professional and student media outlets, once viewed as sources of valuable publicity, are now potential competitors.

Besides trying to restrict the resale of photos, as in Illinois, sports organizers at the college and high-school levels have imposed numerous restrictions on the freedom of journalists to gather news and images, and on how that material can be distributed. There have been several recent run-ins between the media and scholastic sports organizations over who can have access to games, what they can publish and when.

In March, a UCLA student operating an online radio station with a listenership of only about 500 people in the university community was denied a media credential to cover UCLA’s appearance in the NCAA basketball tournament, even though he’d been allowed to broadcast games during the regular season. The NCAA cited concerns that competing broadcasts could detract from the value of the exclusive broadcast rights belonging to CBS Sports.

In June 2007, the NCAA ejected a Louisville Courier-Journal reporter from a college baseball tournament, because the reporter was posting updates on a blog that — according to the NCAA — could have drawn viewers away from the official rights-holder’s TV broadcast. After the reporter’s expulsion prompted an outcry from the sports media, the NCAA clarified that press boxes aren’t a blog-free zone, as long as bloggers obey the restrictions set out in the association’s media credentialing policy. The policy for NCAA championship events puts numerous restrictions on media blog sites: They must be free of charge, must display an NCAA-approved logo, and must include no more than a specified number of updated posts per match, with the number varying by sport.

Controversy over media credentialing, and on league attempts to restrict media coverage, is in no way limited to high-school and college sports. From women’s professional golf to cricket, sports leagues around the world are clashing with the media over league attempts to slap conditions on the use of photos and video.

The National Football League is in a contentious dispute with national media organizations over NFL broadcasting policies, including a ban on sideline reporting by TV news crews from stations other than official rights-holder networks. One of the most contentious points is a new league rule limiting the use of player and coach interview footage. The rule says TV and Web broadcasts — by anyone other than the network with broadcast rights — can carry no more than 45 seconds’ worth of interviews, and that any such video must be pulled down from the Web after 24 hours. A Houston paper’s Web site ridiculed the rule by posting a mock video of breathless, high-speed interviews, each cut off in mid-sentence when a timekeeper clicks a stopwatch.

NCAA restrictions on news broadcasting also inspired a parody from an NBC-TV affiliate in Raleigh, N.C. NCAA rules governing the “March Madness” basketball championship prevent television stations from broadcasting highlights from one tournament game while a later game is being broadcast. So a sportscaster on Raleigh’s WNCN-TV figured out a way to show fans the key scoring plays in Duke and North Carolina games — by reenacting the plays using his daughter’s stuffed toys.

Shuttering the competition

Normally, the law governing photography is quite clear: As long as the photographer is standing in a place that she has a legal right to be (e.g., a park, a sidewalk, the open spaces in a public building), and as long as the subject of the photo can be seen with the naked eye (e.g., not using devices such as nighttime infrared lenses), then the photographer can snap away, and the images she captures are hers to publish or sell. When a photographer enters a ticketed event that is not freely accessible to the general public, however, the organizer of the event generally has greater leeway to impose preconditions in exchange for admittance.

That’s what the Illinois High Schools Association (“IHSA”) has been trying to do with the athletic events it governs — most notably, football.

Last fall, the IHSA imposed a rule prohibiting sports photographers or their employers from selling reproductions of photos shot at interscholastic sporting events; agreement to the no-resale rule was required as a condition of receiving press credentials. The IHSA has a licensing agreement with a Wisconsin company to be its official photographer. The company has the exclusive right to sell photographs taken at state championship events. In November, several media outlets that refused to sign the agreement were banned from shooting from the sidelines at the state high school football championships.

According to the Illinois Press Association, an industry group that represents newspapers, the sale of photos from high-school football wasn’t a hugely profitable business; papers made no more than a few thousand dollars a year, perhaps enough to pay the expense of sending a shooter to the games. But the sales were a popular means of building reader goodwill with parents who wanted action shots of their kids.

Illinois newspapers met the restrictions with overwhelming force. They persuaded legislators to introduce two bills, one in the House and one in the Senate, which declared that neither schools nor the IHSA could interfere in any way with media coverage of their sporting events. The Illinois Senate overwhelmingly passed its version of the bill on March 31, sending it to the House.

The press association and two Illinois daily newspapers also filed suit in Sangamon County Circuit Court on November 1, 2007, alleging that IHSA restrictions were an unconstitutional restraint on publishers’ First Amendment rights. The suit also alleged that the athletic association’s preferential treatment of its own contract photographer violated the papers’ equal-protection rights.

On April 11, the IHSA and the Illinois Press Association announced a settlement, under which the sports association dropped its restrictions on the use of photos; the association can limit the number of credentials based on space and safety concerns, but not based on what the photographer plans to do with her pictures. In return, the newspaper industry agreed to drop its lawsuit and to stop pressing for passage of the legislation.

Although it appears that the Illinois credentialing restrictions will no longer be enforced, similar restrictions remain on the books in several other states, including Wisconsin and Pennsylvania. It is not clear what impact the outcome in Illinois may have on other athletic associations’ willingness to confront the media over the legality of restrictions on credentialing.

Pushing through the blockers

Every state has a “sunshine” law that requires government meetings to be open to the public and accessible for media coverage. But a school athletic event — even though it is a publicly funded program taking place in a publicly funded stadium — is not a “meeting” that would typically fall within the coverage of an open-meetings statute. So journalists seeking to cover sporting events must look elsewhere for a legal basis to insist on unfettered access in the face of resistance from the sports leagues.

One possible recourse is under the First Amendment. While it is unlikely that a court would say that student journalists always have a First Amendment right to demand access to the event of their choosing, once a sporting event in a publicly funded venue (such as a school stadium) is held open for some media coverage, other media outlets can’t be refused credentials arbitrarily — and credentials can’t legally be withheld merely because the organizers of the event dislike the content of the publication.[4] Further, where an event is accessible to the public (even to ticketed members of the public), the organizer must at least be able to point to some legitimate basis for placing special restrictions on the media that aren’t placed on the general public. For example, if the general public is allowed to bring cameras into an event, the First Amendment would not allow organizers to prohibit the media from shooting the same event without some justification.[5]

Importantly, at least one appeals court has recognized that, when it comes to the use of photos from a newsworthy sporting event, the media’s First Amendment rights trump the rights of the athlete to control the use of his likeness.

After the San Francisco 49ers throttled the Denver Broncos in Super Bowl XXIV in 1990, the San Jose Mercury News printed and sold a special souvenir edition commemorating the Niners’ back-to-back championships, then printed and sold posters carrying a reproduction of the special edition’s cover. Niners’ quarterback Joe Montana, who was featured in the special edition and poster, sued the newspaper for misappropriation of his likeness. A California appeals court batted down Montana’s attempt.[6]

The court held that the First Amendment protected the newspapers’ right to reproduce and sell images of newsworthy events. Importantly, the court found that the right to publish also encompasses the right to promote the paper’s coverage — and the use of news photographers’ work in the special edition and in the poster was a way of promoting the print edition of the paper. The quarterback, the court said, could no more complain about being featured in the special edition or poster than he could complain if the newspaper reprinted that day’s front page in a house ad encouraging people to subscribe to the paper.

The Montana case involved a media outlet using the First Amendment defensively — that is, to block a claim of unfair use of a famous player’s photo. It is less certain how a First Amendment claim will fare when used offensively — that is, to demand access to a sporting event free from unwanted restraints on coverage.

A First Amendment claim will work most readily in a publicly funded stadium, because the First Amendment protects only against government censorship, not action by private companies. But a surprising number of sports venues — including New York’s Yankee Stadium — have been found to be “public” in nature, either because of direct government ownership or because government is closely involved in the operation of the venue and collects money from the proceeds of sporting events.[7]

There are significant limits, however, that make it difficult to obtain unrestricted access to a sporting event based on a claim that the organizer is violating the First Amendment. Courts have held that, while the First Amendment strongly protects the right to publish the news, there is no comparably strong First Amendment right to gain access to a news event, or to record or photograph the event.[8] Also, unlike the more commonplace First Amendment claim of unlawful government censorship, a First Amendment claim based on denial of access to a sporting event will receive lesser court scrutiny. The hurdle that a government agency must overcome to justify indirect censorship — by denial of sports credentials — is lower than the hurdle the agency would face if it censored a publication directly.[9] The operator of a sports facility may be able to justify its conduct merely by showing that unrestricted media access would hurt the facility economically — for example, that fewer people would buy tickets if the event could be seen on TV or on the Web.[10]

If faced with a First Amendment claim, a sports organizing entity likely would argue that it is a private organization and not a “state actor.” If the entity doing the censoring is not a government agency, then its actions fall outside of the First Amendment, and any restraint on speech can’t be challenged as unconstitutional. Proving that an organization should be treated as a government actor is not always easy. The Supreme Court has so far been reluctant to hold that the NCAA is a state actor, even though NCAA member institutions are public colleges and the organization reaps substantial revenue from dues paid by public institutions.[11]

Similarly, because many state high school athletic associations are set up as nonprofit corporations, they would likely argue — if faced with a First Amendment claim of denied access — that they are merely private business entities, and thus don’t operate under First Amendment limits. That argument may not wash, however, when the association is delegated authority by the public schools to set the ground rules for publicly funded events in publicly funded stadiums.[12]

A trust that’s tough to bust

Media companies have tried, without much luck, to overcome limits placed on their coverage of sporting events by arguing that the promoters of the event are monopolists, in violation of antitrust laws. Antitrust law prohibits businesses from engaging in various forms of unfair competition, such as cutting off access to a facility that a competitor must have to be able to compete.

In theory, at least some courts have recognized that access to the press box of a sporting event is so essential to competition that a sports promoter cannot choke off access to the press box as a way of shutting down potential competition.[13] But antitrust claims against sporting leagues have proven to be difficult to win.

One of the most famous recent sports/antitrust cases is Morris Communications v. PGA Tour.[14] In Morris Communications, a newspaper publishing company challenged the rules of a professional golfing league, which provided that — as a condition for receiving media credentials to cover top golf tournaments — media outlets agree to delay publishing updated scores online until after the scores had first been posted on the golf league’s own Web site. The newspapers argued that, because only the PGA Tour could provide real-time golf scores, its policies were choking off any possible competition, in violation of federal antitrust laws.

A U.S. District Court found no unlawful monopolistic conduct by the PGA Tour, and the 11th U.S. Circuit Court of Appeals agreed. The 11th Circuit decided that, even if the Tour had monopolized access to real-time scores, there was a valid business justification for doing so. The Morris newspapers were piggybacking on the PGA Tour’s system of on-the-course spotters, who gathered and relayed the results of each golf shot as it happened. Because the “product” that Morris wanted to sell was recycled from the PGA’s labor and investment, the court ruled that the PGA was entitled to protect its investment by preventing others from re-selling real-time results. It was important to the court’s decision that the PGA was willing to provide Morris with real-time scoring results — for a fee. Had the PGA refused to make the scores available for sale at any price and insisted on exclusive control over them, the court’s ruling might well have been different.

The Morris Communications case and others show the difficulty of challenging a sports league’s control over the images and descriptions of a sporting event under antitrust law. At the same time, because the Morris case involved a product created by the league — in that case, a scoring relay system — the outcome in Morris does not necessarily mean that a league can control or monopolize a product, such as a news photograph, that is the result of someone else’s effort and creativity.

Whose right is it, anyway?

Sports promoters’ efforts to protect their “product” from unwanted use by media outlets raises an interesting and unclear legal issue: What exactly is the “product,” and who exactly owns it?

Copyright law protects only ideas that are captured in some tangible form, like a drawing or a recording. So the act of John Smoltz throwing a fastball, or Randy Moss catching a touchdown pass, isn’t recognized as copyright-protected material, just as Mariah Carey doesn’t hold a copyright on the live performance of a song onstage. But once their performances are recorded digitally or on tape or on film, the recording belongs to someone — and owning the copyright means having the right to decide how and when that recording can be used.

Sports leagues should not be able to invoke copyright law to stop journalists from relaying real-time scores as games are in progress. A federal appeals court addressed that issue in a dispute between the National Basketball Association and Motorola.[15] Back before just about everyone was walking around with handheld Internet access, Motorola launched what was, at that time, a cutting-edge service to beam updated NBA scores and news flashes to people’s pagers. Beeper-wearers paid Motorola a subscription fee to receive their minute-by-minute basketball “fix.” The NBA tried to say that Motorola was violating the league’s copyright, because the league had its own real-time scoring service and was hoping to compete with Motorola. But the 2nd U.S. Circuit Court of Appeals in New York found no harm and no foul.

Only the NBA’s scoring system — not the scores themselves — could be copyrighted, the court decided. Unlike the Morris newspapers, Motorola was gathering the scores using its own spotters, not freeloading on the NBA’s copyrighted scoring system. Thus, there was no copyright violation. Further, the court found, the NBA did not show that receiving scores downloaded to a pager was causing people to stop watching or attending games, so Motorola’s service wasn’t hurting the league’s bottom line.

The Motorola decision, and others like it, are important because they indicate that a sports league can’t use copyright law to stop someone from re-reporting his observations of a sports event, as long as whatever reports the person creates are his own original work. It is therefore unlikely that, if the NCAA tried to ban all blogging at collegiate sporting events, a court would find that posting updated descriptions of game action violated anyone’s copyright.

Whether on-the-field sporting activity can be copyrighted is a hot issue between sports leagues and the operators of fantasy sports competitions. Fantasy sports is a $4-billion-plus industry that has spawned some 30,000 Web sites devoted to everything from fantasy baseball to fantasy cricket to fantasy bass fishing.[16] The essence of fantasy sports — that competitors score points based on the performance of their selected athletes — requires the use of real-world athletes’ names and statistics. If sports leagues (or the athletes themselves) could claim ownership of team rosters, or player statistics, fantasy competitors could be forced to pay up for the privilege of using information that is now theirs for free.

Copyright or copy-wrong?

Even though courts have yet to recognize that a sports league can copyright the on-field performance of athletes, at least one state is trying to stake control over journalists’ photos of high school sports from the moment a picture is snapped.

The Pennsylvania Interscholastic Athletic Association, Inc. (“PIAA”) introduced a new policy in 2007 that asserts: “PIAA is the owner of the rights to and the copyright holder of all Contests conducted under its jurisdiction.”[17] Under that policy, the Association asserts that members of the media can neither sell, nor give away for free, reprints of photos of athletic contests, unless the reprint is requested by a student or by the student’s school. The policy also provides that video clips of Pennsylvania high-school sporting events may be used to show excerpts only as “part of a regularly scheduled sports or news program and for no other reason.” If literally enforced, that policy would appear to preclude Web-posting video clips for continuous access. Further, the policy attempts to limit television broadcasters to airing no more than 3 minutes of footage from any particular game. Additionally, the policy says no local news station may air a “live report” of a PIAA-administered sporting event while the live broadcast of the contest by the broadcast rights-holder is still in progress.

There are no known cases of the PIAA attempting to enforce these restrictions against either student or professional media, according to Melissa Melewsky, Pennsylvania Newspaper Association media law attorney. The newspaper association sent a letter of protest to the athletic association after the 2007 rules changes were circulated, arguing that the PIAA is exceeding its legal authority. The PIAA offered to discuss the matter with the newspaper industry, but Melewsky said no talks have yet been held or scheduled.

The newspaper publishers pointed out that the copyright to any particular creative work belongs to the creator of the work (or, if the work is done for-hire, to the creator’s employer). Since the “work” in this case is the photograph — not the throwing of a touchdown pass — the law would appear to recognize the photographer’s employer, not the PIAA, as the rightful holder of the photo’s copyright.

Although it is always possible for a copyright-holder to sign away the rights to a work, Melewsky said merely requiring a reporter or photographer to sign a waiver or release when picking up a sports credential might not hold up in court as a legally effective waiver.

“Of course, the individual photographer doesn’t have authority to bind the newspaper to a copyright agreement, so that’s a huge legal barrier in our minds…. That would create a world of headache if every newspaper photographer who attended an event could sign away a right that belongs to the newspaper. Their[PIAA] policy doesn’t appear to recognize that distinction.”[18]

When suing isn’t the answer

The lesson from the Illinois experience is that, when faced with resistance to unimpeded media coverage, student journalists should look to their natural allies. In the case of Illinois sporting events, it was the parents of the athletes who feared they’d miss out on action shots of their kids performing on the field. Those parents shared the interest of journalists in making sure that photographers from multiple media outlets could freely cover games and make their photographs available for sale. It was parental lobbying that got the Illinois legislature interested in the issue, and that brought the Illinois High School Association to the negotiating table.

Another potential ally is the professional media. Sports access restrictions rarely will single out the student media for special disfavored treatment (and in fact, the reverse may be true), so if your student publication is suffering from coverage restrictions, the local and national media probably are, too. Sports coverage is big business to the professional media, so student publications may be able to ride on the coattails of larger publications’ legal challenges.

Publicity, when used carefully and respectfully, can also be an asset. Sports leagues depend on public goodwill to sell their tickets, foam fingers, and $9 hot dogs. If readers think unfavorably of the local team because its coverage policies are unfair or mean-spirited, then the team’s bottom line can suffer — and elected officials can sense a popular issue and may get involved as well. A barrage of negative publicity, and the prospect that the professional media might refuse to cover games, convinced the Louisiana High School Athletic Association to abandon enforcement of a restrictive credentialing system similar to Illinois’.

Individual journalists covering sporting events can take common-sense precautions to minimize the risk of a credentialing dispute. One precaution issimply to keep a low profile when covering an event. Reporters and photographers are more likely to be left alone to do their jobs if they are unobtrusive, reasonably quiet, and professional.

Be careful about signing any forms or releases before entering a sporting or entertainment event. If a sports league or school wants to impose conditions on the receipt of a credential, the league should work that out in advance with an editor; restrictions shouldn’t be sprung suddenly on game day. If you are shown something unfamiliar, insist on keeping a copy of it.

If you are told that you can’t be admitted to a sporting or entertainment event without signing away rights, try to get in touch with an editor — or a lawyer. Some sporting events will waive conditions, in particular for student media, if they are asked politely (or if they sense trouble).

If your publication is covering a sports league for the first time, do some homework and become informed about the league’s credentialing policies so thereare no unpleasant surprises.

Read carefully any wording on a media credential itself or on any handout material you are given as part of the credentialing process. These materials mayattempt to impose implied restrictions, of which you should be aware.

If you think you have been singled out improperly for denial of press credentials, or for special limits or conditions imposed on your credentials, get in touch with an attorney or with the Student Press Law Center at (703) 807-1904, splc@splc.org.

In the end, however, it is the reporter or photographer’s first responsibility to get the story or capture the image. Unless the conditions being imposed are unbearable — e.g., the league says you can take pictures only if you stand in the same spot for three hours without moving, drinking or going to the bathroom — it’s probably best to sign a credentialing agreement if the alternative is to be kicked out of the stadium, since there’s a good possibility that a court would hold the agreement unenforceable anyway.

Endnotes

1. The NFL has television contracts with three major networks, a cable sports channel, and DirecTV worth close to $25 billion through 2013. Kevin Goheen and Rick Bird, Restrictions Have Local Stations Unhappy, The Cincinnati Post, May 12, 2006 at B1.
2. Pittsburgh Athletic Co. v. KQV Broadcasting Co., 24 F. Supp. 490 (W.D. Pa. 1938). See also National Exhibition Co. v. Fass, 143 N.Y.S. 2d 767 (Supreme Court, N.Y. County 1955) (ordering teletype operator to stop transcribing radio reports of New York Giants baseball games for re-sale to radio stations, which used the transcripts for delayed play-by-play broadcasts).
3. Greg Johnson and Larry Stewart, Online channels feed college sports fans, Los Angeles Times, December 24, 2007 at 11.
4. Stevens v. New York Racing Ass’n, 665 F. Supp. 164 (E.D.N.Y. 1987) (holding that horse racing track could not refuse press credentials to magazine based on magazine’s heavily social and gossip content).
5. D’Amario v. Providence Civic Center, 639 F. Supp. 1538 (D. R.I. 1986). But note that in the D’Amario case, which involved a ban on photographing rock concerts in a public arena, the court found that the government’s restrictions were reasonable, because the government was merely honoring the contractual demands of musical acts that refused to perform if their performances could be photographed and reproduced in the media.
6. Montana v. San Jose Mercury News, 34 Cal.App.4th 790, 40 Cal. Rptr. 2d 639 (Cal. App. 1995).
7. See Ludtke v. Kuhn, 461 F. Supp. 86 (S.D.N.Y. 1978) (finding that Major League Baseball violated female reporter’s constitutional rights by denying her access to New York Yankees’ locker room while allowing access to male reporters).
8. See Foto USA v. Florida Board of Regents, (11th Cir. 1998) (rejecting a photography company’s claim that there is a First Amendment right to record or photograph graduation ceremonies at a public university).
9. See, e.g., Post Newsweek Stations-Connecticut, Inc. v. Travelers Ins. Co., 510 F. Supp. 81 (D. Conn. 1981). In the Post Newsweek case, a federal court upheld the City of Hartford’s restriction on broadcast credentials that required local TV stations to agree not to telecast figure-skatinghighlights until after the exclusive broadcast contract-holder had aired the event. Because the City was functioning like any other business in the operation of its civic center — a “proprietary” rather than “governmental” function — the City’s actions were not reviewed under the same demanding scrutiny that would be required if the City were acting as a government regulator. It was enough that the City’s restriction was not arbitrary, because the City could rationally believe that a telecast of highlights would detract from the later broadcast of the full event. The court stated that coverage of athletic or entertainment events was “on the periphery of protected speech” and not entitled to the same importance as if the City had restricted television coverage of a political event.
10. See Hertel v. City of Pontiac, 470 F. Supp. 603 (E.D. Mich. 1979) (rejecting fans’ constitutional challenge to NFL “blackout” rule preventing broadcasters in local market from carrying Detroit Lions football games, on the grounds that local broadcasting would interfere with the government’s objective of selling more tickets and operating its stadium profitably).
11. See NCAA v. Tarkanian, 488 U.S. 179 (1988). See also San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee, 483 U.S. 522, 107 S.Ct. 2971 (1987) (U.S. Olympic Committee’s receipt of partial federal funding was not sufficient to make USOC a “state actor” so that its decisions could be challenged under the Due Process Clause).
12. For instance, when home-school parents challenged Michigan’s eligibility rules for interscholastic sports as unlawfully discriminatory, a Michigan court held that the acts of the Michigan High School Athletic Association are state action, and thus can be struck down as unconstitutional unless supported by a “compelling” justification. Reid v. Kenowa Hills Public Schools, 261 Mich.App. 17, 26, 680 N.W.2d 62, 68 (Mich. Ct. App. 2004).
13. See Phone Programs Illinois v. National Jockey Club, 692 F. Supp. 879 (N.D. Ill. 1988) (finding that a company that wanted to distribute horse-racing results could prevail on an antitrust claim alleging that three racetracks unlawfully conspired together to deny the company access to their racetracks, and that denial of access to press box facilities could be the basis of an unfair competition claim).
14. 364 F.3d 1288 (11th Cir. 2004).
15. National Basketball Ass’n v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997).
16. See Zachary C. Bolitho, When Fantasy Meets the Courtroom: An Examination of the Intellectual Property Issues Surrounding the Burgeoning Fantasy Sports Industry, 67 Ohio St. L.J. 911 (2006) at 912 and n. 4, 10.
17. See Pennsylvania Interscholastic Athletic Association, Inc., 2007-2008 PIAA Policies and Procedures, p. 77, available at http://www.piaa.org/assets/web/documents/Handbook – Section II – Policies & Procedures.pdf (last viewed April 15, 2008).
18. Courts also tend to look unfavorably on “take-it-or-leave-it” agreements in which one side of the so-called “bargain” is given no real choice (these are known in the law as “contracts of adhesion”). Although a contract of adhesion is not always void, a court will view the agreement skeptically, and may find that the agreement is unenforceable if its terms seem especially lopsided or unfair.