Exclusive? Media, athletic groups await ruling on high school broadcast rights

The ability to access and cover high school sporting eventsis valuable to the communities involved, media organizations and the athleticassociations that sponsor the events. Although media presence at these publicevents is a long-standing and accepted practice, the definition of newscoverage continues to be under debate, especially at the tournament level.

State athletic associations are responsible for organizinghigh school sports tournaments. Organizing a post-season tournament involvescoordinating schedules, hiring officials, renting facilities to hold theevents, contracting sponsors — and managing press restrictions and credentials.

While press regulations exist at all levels of sports, fromprofessional to college to high school, court battles over media ownershiprights and press freedoms continue to arise, particularly at the high schoollevel.

Waiting in Wisconsin

The constitutionality of selling exclusive broadcast rightsfor high school tournaments has been called into question in Wisconsin.

The Wisconsin Interscholastic Athletic Association, whichruns the state high school sports tournaments for over 500 member schools,licenses exclusive rights to broadcast its events. Under current WIAA policy,an organization can purchase streaming rights for individual games. Otherbroadcasts without the license are limited to a two-minute length.

In 2009, the Appleton Post-Crescentlive-streamed high school football tournament games without a license. When WeWere Young Productions, a subsidiary company of American Hi-Fi, holds theexclusive broadcast rights for high school football tournaments, and the WIAAdemanded the Post-Crescent pay the licensing fee.

The WIAA sued the Wisconsin Newspaper Association andGannett Co., Inc., which owns the Appleton Post-Crescent andpublishes newspapers across the nation including 10 daily and 19 non-dailynewspapers in Wisconsin. Through the lawsuit, WIAA sought a declaration that ithas ownership rights over “any transmission, internet stream, photo, image,film, videotape, audiotape, writing, drawing or other depiction” of the eventsit organizes, as well as the ability to sell exclusive broadcast rights.

Gannett counter-sued, arguing that selling exclusivebroadcast rights for high school sporting events is a violation of the FirstAmendment.

In July 2010, a U.S. District Court in Wisconsin ruled infavor of WIAA.

“Ultimately, this is a case about commerce, not the right toa free press,” according to the court’s decision. “Even with respect to thosegames for which American Hi-Fi holds exclusive rights, the defendants remainfree to (1) publish stories on the games, (2) express opinions about them and(3) offer limited live coverage.”

Gannett appealed, and the case was argued Jan. 14 before the7th U.S. Circuit Court of Appeals. A decision could come at any time.

Robert Dreps, the attorney representing the media in thecase said, “We knew it was an uphill battle when we took it on because of apretty long history here in Wisconsin of exclusive television contracts. But atthe same time, it seemed that granting such broad exclusivity without anystandards for re-licensing others was a violation of the First Amendment.”

Several media outlets joined together on afriend-of-the-court brief supporting Gannett and WNA and seeking to overturnthe earlier decision. They include the American Society of News Editors,Chicago Tribune Company, the E.W. Scripps Company, GateHouse Media, HearstCorporation, the Illinois Press Association, the Journal Broadcast Group, theJournal Sentinel, Inc., Lee Enterprises, the McClatchy Company, the NationalPress Photographers Association, the Newspaper Association of America, theOnline News Association, Sun Times Media and The Washington Post.

In the brief, the media groups argue, “The WIAA is a stateactor and the tournaments it sponsors are public events, staged on publicproperty that is opened generally to the public and the media, and paid forwith public funds. It cannot adopt the model of a private, professional sportsbusiness.”

The media also claim the WIAA has established anunconstitutional prior restraint “by requiring that media companies purchase alicense to report audio, video or text transmissions on newsworthy, governmentsponsored events that are open generally to the public.”

Todd Clark, WIAA spokesperson, said the association only hasjurisdiction over post-season tournament events and sponsors them “without anytaxpayer dollars afforded to the association to host these tournaments.”

Clark said the tournament series the WIAA hosts are fundedthrough admissions fees, which account for 85-90 percent of revenue, andbroadcast rights agreements for transmissions of the games, which account for5-6 percent of revenue. Clark also said the revenue generated allows the WIAAto pay the fees associated with renting the facilities used, which WIAA doesnot own, and hire officials for the games.

“There’s sort of a misperception that’s out there thattaxpayers’ dollars are going into funding these tournaments and they’re not,”Clark said. “We are not tax driven; we support ourselves. While it’s not allabout making millions of dollars, because we’re a not- for-profit association,it is about being able to pay the rental fees, for the quality facilities.”

However, the media groups argue, “WIAA’s profit motive doesnot insulate it from the First Amendment’s obligations. Having opened publictournament events to the public generally, and to coverage by the media, theWIAA cannot play favorites when it comes to speech.”

An agreement in Illinois

In 2007, an exclusive rights battle played out over photopolicies and Internet streaming between the Illinois Press Association and theIllinois High School Association, resulting in a 2008 settlement rather than acourt decision.

The IHSA formed an exclusive photography contract withVisual Image Photography Inc. that granted unlimited access and photographyopportunities at IHSA tournaments. Newspapers were required to sign anagreement for media credentials that limited their access during the events andprohibited any photographs other than those being printed in the newspaper.Newspapers covering the athletic tournaments were selling photographs of theevents on their websites and VIP’s exclusive photo contract with IHSA wasintended to prevent newspapers from selling photos of the events.

The IPA, representing the news media, sued the high schoolassociation in November 2007 to combat what it believed was accessdiscrimination and prior restraint over newspapers’ “secondary use” ofphotographs and game coverage.

IHSA countersued in December 2007, seeking a declarationthat IHSA had the right to sell any photographs taken during high schoolsporting events, to deny access to newspapers if they wouldn’t comply withIHSA’s policies and limit secondary use of newspaper photography.

When photographers refused to agree to IHSA’s terms formedia credentials, IHSA began restricting access to photographers andnewspapers. Five Illinois newspapers were denied sideline access during statefootball championships because they refused to comply with IHSA’s policies.

That prompted legislation in Illinois to be introduced thatprotected equal access at all school events — from elementary to high school,including sports and academic events. The bill also would have prevented anyinterscholastic association from attempting to regulate the practices of thenews media.

As the bill quickly gained support, the IPA and IHSA reachedan out-of-court settlement.

Part of the settlement involved stopping the bill fromproceeding to passage. In addition to stopping the bill, IHSA agreed it “willassert no authority to control or regulate production, distribution or sale ofany newspaper product. Nor will any newspaper access credentials to IHSAsponsored events be conditioned by any limitation on the production,distribution, or sale of any newspaper product.”

The press was also guaranteed equal access to photographershooting zones established by IHSA in IHSA-sponsored games, and IHSA wasallowed to retain an official photographer with unrestricted access to createcontent for the exclusive use of the IHSA.

Don Craven, IPA attorney, said the proposed legislationplayed a significant role in the two sides reaching the settlement.

A new contract

In September 2010, the IHSA signed a new exclusive broadcastrights agreement with WWWYP, the same company that holds the right to broadcastthe football tournament events in Wisconsin.

Craven said the agreement shouldn’t affect newspapers’current practices. Newspapers were streaming games prior to the agreement, andhave been since, and as part of the settlement between the IHSA and the IPA,the IHSA is not allowed to interfere with how newspapers disseminate theircontent, he said.

Craven said the purpose of anyone streaming high schoolathletic games is to reach those of interest to the event. There isn’t a hugeamount of interest in high school sports, aside from family or those with tiesto the student athletes, he said.

IHSA spokesman Matt Troha said exclusive broadcast rightsagreements with state athletic associations aren’t uncommon.

“Everybody tends to do it a little bit differently, becauseall the states are set up a bit differently, but most state high schoolassociations have some kind of deal with some entity to carry their televisionstuff,” Troha said. “I don’t know of any state that would simply allow anybodythat would show up and start to broadcast.”

Troha and the IHSA – along with a great many neworganizations across the country – are keeping their eyes on what happens inWisconsin at the Seventh Circuit.

“We’re monitoring it because we think it has ramificationsfor all state high school associations, and really for all televised athleticevents,” he said.

By Kyle McDonald, SPLC staff writer