Sidelined?

As athletics becomes a bigger business, the economic effects are trickling down to affect the media’s access to high school players.

From the Winter 2008 issue of The News Media & The Law, page 4.

By Corinna Zarek

Local high schools’ Friday night football games, crosstown rivalries and standout stars get a lot of people watching the news and picking up the paper. But these days, the classic sports page photo of Johnny’s touchdown catch at the state championship game might not make it in the mail to grandma unless the event’s officially sanctioned paid photographer captured it.

Partnerships between state high school associations and private photographers that give exclusive rights to sell game photos are turning what have long been community events into an opportunity for those private groups to profit from high school athletics.

Newspapers that have commonly made reprints of photos published in the paper available for a small fee are now prevented from selling those images under the agreements.

According to the National Federation of State High School Associations (NFHA), about a dozen states have such agreements. Photographers say it’s becoming a trend to see the profit-making mindset trickle down from professional sports to the student level as high school associations exert more control over athletes.

“The ultimate loser is the student-athlete,” said Ross Dettman, an Illinois-based freelance photographer. “It’s the simple classic case of a monopoly. It is impossible for a photographer to cover everyone out there, but at least if there are more people out there, there are more choices,” he said. And without a variety of shooters, some kids are “not going to get covered.”

In a few states, including Illinois, this move to control access to athletes has turned into a heated battle. The contract between the Illinois High School Association (IHSA) and Visual Image Photography, Inc. prevents credentialed media from selling their photographs from IHSA-sponsored events, including state championship and playoff games.

This triggers a question as to whether restrictions that have become fairly commonplace in professional sports and even in college sports to a degree are a logical next step for high school athletics or whether it is a legal and ethical violation of kids’ rights to play sports with private interests interfering.

Under IHSA’s policy, photographers must agree that they will not sell photos from IHSA-controlled events or IHSA will not allow them to photograph the games.

Several Illinois newspapers were shut out from championship football games last fall because IHS A said they were not “in compliance” on the sales issue.

The Louisiana High School Athletic Association initiated a similar plan in 2007, requiring photographers to agree not to sell reprints of their photographs. But the media and community outcry against the new policy quickly caused the association to drop it. The Wisconsin association has also adopted a similar policy but is not yet enforcing it.

The issue’s first lawsuit over whether this policy can stand is currently in the Illinois courts. Either that case’s outcome or the future of legislation intended to prevent such policies introduced earlier this year may decide the issue for that state. But as the practice grows, it is unclear how the future of access to high school athletes will be affected.

Ground rules

Professional sports, which are all privately owned, for-profit ventures, require reporters and photographers seeking press credentials to abide by certain agreements before they will be issued press passes.

These stipulations range from injury liability waivers to restrictions on secondary commercial usage, said Dettman, the Illinois freelancer who has covered sports ranging from junior hockey to the Stanley Cup to the Kentucky Derby and several Super Bowls.

“It kind of makes sense when they are private entities,” said Dettman. But in places like Illinois, “Whenever you prevent the press from access and it is a public event that is a problem.”

Additionally, when a private entity controls news coverage, Dettman pointed out, its interest is not necessarily in line with the public’s interest.

“If something newsworthy happens, you can have information being suppressed,” he said. “VIP would not put out images where they would make IHSA look bad if a person runs out on the field and does something crazy or a fight breaks out.”

Professional sports, more recently through team Web sites, have also exerted control over news related to the players or the team, said ESPN reporter Wayne Drehs, who is a senior writer for the sports broadcaster’s Web site.

For the teams with sites that have their own writers, there is a “tension between the traditional media and the ‘team’ media,” Drehs said. “If someone breaks their leg they might write about it using their own site and exclude the traditional media. There is definitely a tension in that.”

But, he said, he can see why groups like IHSA and VIP would want to enter into such a venture when looking to professional sports.

“You look at all these places making all this money it’s a business,” he said.

And that business is slowly trickling down, Dettman, the photographer, has noticed.

“The Big Ten has its own network now. IHSA envisions a similar thing,” he said, adding: “It’s getting easier to strong-arm their way and they did it.”

National league

Illinois is the first state to see litigation arise out of a privatization of high school sports issue such as this, but it is not the first to see a move in this direction, said Rob Dicker, a photographer for suburban Chicago’s Pioneer Press newspapers a string of about 60 weeklies known for local sports coverage. 

“I see a recognized movement of all the high school athletic associations. Illinois kind of decided to test the waters and other states Ohio, Minnesota they’re taking ‘wait-and-see’ attitudes.”

When the athletic association in Louisiana attempted a similar private contract and policy that photographers would have to adhere to, the “photographers staged a walkout,” said Mickey Osterreicher, the general counsel for the National Press Photographers Association. Eventually, the association dropped its plan.

The LHSAA’s new policy was presented to photographers covering the girls state basketball championships in 2007 and would have required them to agree not to sell their photos online, said Trey Iles, the assistant sports editor in charge of high school athletics for the Times-Picayune in New Orleans.

“No one would sign it and the first couple of days there were no photos and they basically backed down,” he said. “There was such an outcry that the commissioner said we didn’t have to sign anything and it went back to the way that it is.”

Dicker, who is also a member of the IHSA’s media advisory committee, said Illinois newspapers “are not willing to put up the fight” like the Louisiana papers did.

In Wisconsin, Osterreicher said, the athletic association entered into a similar contract with a private photography company, but said to his knowledge, it is not being strictly enforced. “I think for the most part it’s ‘don’t ask, don’t tell.’”

The Wisconsin Interscholastic Athletics Association presented its policy during the 2006-2007 school year, said Rob Hernandez, the Wisconsin State Journal’s assistant sports editor for high school athletics. As a member of WIAA’s media advisory committee, Hernandez said he was surprised it was not brought to the committee.

But, he said, “WIAA said it will not pursue legal action for newspapers in violation of the agreement right now, but if someone in another state successfully argues the rule, that may change their stance.”

Whether the athletic associations can essentially require a photographer to give up his copyright on an image in essence, stating the image becomes the property of the association is the ultimate question. In Illinois, Rep. Joseph M. Lyons and Sen. James A. DeLeo, both Chicago Democrats, hope to prevent that.

The Illinois House is considering a bill that would outlaw efforts by IHSA to regulate the use of news photos and videos.

The IPA drafted the bills that were introduced in January 2008. Between the legislation and the litigation, Illinois seems poised to set a tone that may be followed by other state associations.

Each state association is its own independent entity, said Bruce Howard, the director of publications and communications for NFHA, the national group. “We have no policy or control over this or anything else,” he said with regard to the photography agreements.

The state association issue has been up for discussion at NFHA’s annual meeting for member associations, Howard said. “A number of states have had deals like this. The state association has to come up with some means to photograph events and they have to work with some group to get this done.”

But Donald Craven the the Springfield, Ill., attorney representing the Illinois Press Association in its lawsuit against IHSA sees the movement as a concerted coalition in several states.

“This is the first step toward high school sports associations owning and controlling high school sporting events,” he said. “They view themselves as business, as a profit center, centered on high school sports. They want to make money just like the NFL makes money on NFL products.”

Money shot

Money is a buzzword on both sides of the issue in Illinois and controls much surrounding sports in general. The Illinois agreement gives VIP the sole right to sell photographs of certain sporting events. NFHA which includes the associations in all 50 states and the District of Columbia as members is sponsored by Bank of America and Spaulding, among other entities, and offers suggestions for its member associations to form corporate partnerships.

Dollars have fueled professional sports since their inception and have also long affected the media, said Dettman, the Illinois photographer.

Looking at the dozens of lanyards that hold the press credentials he has accumulated over his 13 years shooting sports, Dettman rattled off a string of private corporations advertised along their surfaces.

“These credentials have all kinds of advertising,” he said. “I don’t like it, but my first response is to do the job.” As a freelancer, Dettman said, he’s there to work for his client, not make his arguments “on the client’s dime” as to why he should not have to wear a sponsored lanyard “that some company paid a few cents to make and get their name on.”

New this season with the National Football League was a red vest photographers were required to wear imprinted with small Reebok and Canon logos, Dettman said.

“The cynic in me says they are throwing out these innocuous logos testing the waters to see how people react. It may get to a slippery slope thing,” he said, where they become bigger and more visible.

“Photographers being billboards, so to speak, for awhile is nothing new,” he said. But, he says he sees a distinction between high school players and the professionals. “I understand why VIP has their position,” he said. “There is a trickle-down effect all the time. If someone sees money coming in, they realize there are untapped revenue sources and think ‘if other people are benefiting from this revenue, why can’t we?’”

Though the NPPA’s Osterreicher himself a former photojournalist for more than 30 years finds limiting access at any level of athletics an unacceptable practice, he agreed that there is a distinction between private entities and high schools.

“These are state actors, not private entities. They deal with high school kids mainly in public schools. The money that pays for the athletics and the facilities and the gyms and fields is all public money, so for them to go contract on their own with private organizations” is inappropriate, he said.

But the state championship games are private events put on by the associations themselves not the state at a great cost, said Marty Hickman, the director of the IHSA. And the association has to come up with the funding to host these events somehow, he said.

“When we use Assembly Hall in Champaign-Urbana (at the University of Illinois) or the United Center (in Chicago), we have to pay to use those places. We have expenses. We have to put on an event, pay for security, pay for ushers, pay for ticketing,” Hickman said. “The reality is that it costs money to put this on.”

Stuck in the nosebleed seats

There are plenty of hoops to jump through before a reporter or photographer can gain access to a professional or even collegiate athlete.

Teams may limit access to certain days and times, might insist a journalist go through a sports information office or require actual credentialing and make the reporter or photographer agree to the terms of the contact.

For example, Osterreicher said he recently read a letter from the National Collegiate Athletic Association limiting photographers’ rights. “If you don’t give up all your rights to the photos, they’re not going to give you credentials,” he said. “Everyone is just trying to get more and more control over images.”

But high school sports have been different. Dettman said when his two boys were competing as cross country runners in high school in suburban Chicago, he was free to come and go and shoot them as he pleased.

Drehs said any time he has been to a high school event to watch players or gather background information for an article even if he wasn’t covering a game directly schools would “bend over backward” to let him in. Perhaps that’s based on those ESPN credentials, but he has never had a problem, he said.

“To me, high school athletics is very pure,” Drehs said. “It’s sad in a way to think they’re minimizing coverage and limiting the pictures of these events that are supposed to be purely about competition.”

“We’re the number one promoters of these activities,” agreed Dicker. “Our argument is that if Johnny catches the winning touchdown and there are 15 photographers shooting 15 angels, that’s 15 pictures parents can choose from. But if there is one photographer, then there is one picture and it may or may not be good.”

However, said Hickman of the IHSA, any photographers are welcome to take as many photos as they like and give them away. “The way we see it, selling a picture on a Web site has nothing to do with the news. We have said they can give pictures away if they truly want to be good community servants.”

A game of inches

The pure competition that newspapers would capture in photos that became clippings and keepsakes for student-athletes’ families may now fall by the wayside as states institute restrictive access policies.

Communities in the state “hate it,” said Craven, the Illinois media attorney for the press. “Grandma doesn’t want the photo from VIP that’s staged,” he said, “she wants the shot from the front page of the paper.”

But “the dynamic is shifting,” Dettman said.

IHSA “realizes the exclusivity newspapers had is no longer there. The leverage that newspapers had is diminishing because that purpose can be served in many different ways,” he said, referencing the Internet. “Granting access is now a privilege and no longer a right.”

The NPPA’s Osterreicher agreed the Internet has changed news coverage. “The newspapers have these Web sites and they publish more and more content and once it’s there it’s like the wild, wild West. It’s just truly a new world out there.”

Though the Internet may change the game in some states, in a state like Wisconsin where high school athletics takes a backseat to professional sports like the Green Bay Packers and collegiate athletics such as the Wisconsin Badgers, the associations should continue to recognize the importance of the media’s role to their programs, said Hernandez, the Madison, Wis., sports editor.

“High school athletics is a distant third here; I’m not sure it is in their best interest to turn away free publicity,” he said. “We do not make a lot of money off of this; it’s more or less a courtesy.”

And if the WIAA should pull a press credential for failing to agree to its terms? “We would think long and hard about the importance of this coverage with relation to the other events we cover,” Hernandez said.