May 13, 2014 3:18pm PT by Eriq Gardner
Does ESPN Really Hold All Necessary Rights to Broadcast SEC Games? (Analysis)
Today at its upfront presentation, ESPN president John Skipper touted the coming launch of the SEC Network. The cable sports giant has spent billions of dollars securing rights to show the games of the Southeastern Conference through 2034. "If you're going to launch a network, you need a long-term commitment for the rights," he said.
ESPN surely believes that it has locked up exclusivity on the SEC, but a judge's ruling last month has caused some uncertainty regarding televising college sports. So much so that several broadcasters including CBS Corp., Fox and NBCUniversal are hoping for an appeals court's intervention in a class-action lawsuit brought by college athletes.
The lawsuit brought by Ed O'Bannon and others has commanded a lot of attention, but for the most part, it has largely been through the prism of current and former college athletes demanding compensation for their exploitation. On April 15, however, U.S. District Judge Claudia Wilken issued an opinion on the precipice of trial next month that potentially has far-reaching consequences.
She wrote that prior cases concerning publicity rights "make clear that the First Amendment does not create a right to broadcast an entire athletic performance without first obtaining a license or consent from all of the parties who hold valid ownership rights in that performance. Whether Division I student-athletes hold any ownership rights in their athletic performances does not depend on the scope of broadcasters’ First Amendment rights but, rather, on whether the student-athletes themselves validly transferred their rights of publicity to another party."
"Because the current record does not demonstrate that all Division I student-athletes validly transferred all of these rights," she continued, "the First Amendment does not preclude student-athletes from asserting rights of publicity in live broadcasts or re-broadcasts of entire games."
The ruling deserves far more attention that it has gotten to date. The broadcasters themselves seem to understand the implications. The NCAA wants permission to address this issue in an interlocutory appeal -- meaning one that would be addressed by appeals courts before resolution of case at the trial court -- and on Monday, broadcasters got Judge WIlkin's permission to submit an amicus brief in support.
According to the broadcasters' brief, "The right of publicity simply does not fit and cannot be logically extended to the circumstance of the broadcast of a sporting event. If each participant in a game with hundreds of 'performers' had the exclusive right to license their individual appearance in the game, then by definition there could be no exclusivity in the game as a whole."
Lest athletes like those in the Southeastern Conference upset the prevalent notion of "exclusivity," the broadcasters are now sharing their own interpretation of the law. They think the judge is conflating producers with performers.
The broadcasters bring up all sorts of cases from years past to protect the sanctity of their billion-dollar deals.
For instance, there's the radio broadcaster who in 1938 stationed observers outside the stadium where the Pittsburgh Pirates play to look over the outfield fence and relay play-by-play descriptions of the action. A judge held that the Pirates, after having made its investment, had a property right to sell exclusive broadcasting rights and stop a renegade broadcaster committing unfair competition. Similarly, twenty years later when another radio broadcaster attempted to listen to New York Giants baseball games on one station and then repeat them on its own broadcast, a judge stopped that gambit as well. The broadcasters now see these cases as confirmation that rights to telecasts vest with them.
Then, there's the case of Zacchini v. Scripps-Howard Broadcasting Co., the only time that the issue of publicity rights has been addressed by the U.S. Supreme Court. In that case, a man named Hugo Zacchini who performed a human cannonball act sued a local Ohio TV station arguing that he'd have no incentive to perform if TV broadcasters could show his entire act without consent. The high court ruled in his favor.
"As applied to team sports, it is the producer of the event (e.g., a team, league or school) that charges an admission fee, not every offensive lineman, cheerleader, or band member who performs in a game," says the broadcasters in their brief. "Put another way, the analogue in this case to the 'entire act' discussed in Zacchini would be an entire NCAA football game as a whole -- not the 'entire act' of each offensive lineman, a construct that is difficult to even define and is certainly without precedent. Of course, Zacchini at times refers to 'promoters' and 'participants' interchangeably, but that is because the entire context of the dispute was about a plaintiff who was both."
In short, the broadcasters are challenging the basic premise that athletes have publicity rights on games. And if that argument isn't accepted, they're falling back on the secondary line of reasoning that "broadcasts of NCAA games are non-commercial speech that are protected by the First Amendment."
In agreeing to consider the broadcasters' amicus brief, the judge is indicating her serious consideration of whether the issue should go to an appeals court. (On Tuesday, in another aspect of the case, the 9th Circuit denied a review of the class certification.) Attorneys for the athletes argued that the NCAA's motion for interlocutory appeal was designed to prevent the trial set for June 9 from going forward. Judge Wilken wants to explore the issue anyway. She's given the athletes until Wednesday to respond to the broadcasters, setting up the most direct showdown to date on the future of televised college sports.
In the meantime, as networks like ESPN hold upfronts and tout their future game telecasts, unspoken is the fact that the valuable DVR-proof commodity that attracts huge cable and satellite retrans fees and advertising dollars is suddenly in some doubt. And broadcasters might not wait around for an answer.
As another amicus brief from the First Amendment Coalition puts it, "The uncertainty created by such a scenario -- do broadcasters have the right to televise a particular game, or do they not? -- will cause the NCAA, networks, and associated businesses to censor their protected speech."