Newspaper sued over Webcast of high school game

Cristina Abello | Newsgathering | Feature | March 6, 2009

Just when it seemed journalists had staked out anew the freedom to cover high school sports, a new legal battle has come to a head in Wisconsin.

On the heels of similar disputes in other states that ended favorably for the press, a Wisconsin scholastic association and the companies it hired to sell exclusive rights to photograph and record high school athletic games have together filed a suit against the Post-Crescent [Appleton, Wis.], its parent company, Gannett Co., and the Wisconsin Newspaper Association. At issue: The Post-Crescent's Internet broadcast of a football game.

During the past few years, the Wisconsin Interscholastic Athletic Association (WIAA) has contracted with certain companies and granted them exclusive rights to produce, distribute, broadcast and photograph high school athletic games -- activities traditionally accessible to the local press. Now the association and its partners are suing over the paper's live stream on its Web site of a Nov. 8 high school football game in Stevens Point, Wis.

Similar legal conflicts occurred most recently in Louisiana and Illinois. In 2007, Louisiana’s high school athletic association made plans to adopt an exclusive rights system, but after press photographers vehemently protested, the association abandoned the policy.

More recently in Illinois, a high school association filed a lawsuit similar to the one in Wisconsin against the state’s newspaper association; that suit was ultimately settled. It was a press-friendly settlement agreement, stipulating that newspaper photographers would not be restricted from covering state high school tournament events, nor would their use of those photographs be regulated by the sports association.

"It’s disappointing to me that Wisconsin, being the next door neighbor to Illinois, did not learn anything from the way things transpired in Illinois -- they were able to reach an amicable settlement," said Mickey Osterreicher, general counsel for the National Press Photographers Association, who has written extensively on this issue.

In the new Wisconsin suit, the WIAA specifically asks the Portage County Circuit Court for extremely broad rights and protections. It also requests that the court declare WIAA’s ownership of media rights, and its right to contract for exclusive rights with outside companies for “any transmission, internet stream, photo, image, film, videotape, audiotape, writing, drawing or other depiction or description of any game, game action, game information, or any commercial used of the same of an athletic event that it sponsors.”

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," Osterreicher said, because almost all of its members are public high schools.