February 07, 2014 8:20am PT by Eriq Gardner
Fox Warns of Threat to News Reporting if NCAA Athletes Win Rights
As college basketball and football players continue to pursue money in a class-action lawsuit against the NCAA, Fox Broadcasting has some dire warnings for the judge.
Last year, U.S. District Judge Claudia Wilken in San Francisco declined to dismiss an antitrust action brought on behalf of amateur athletes who contend the NCAA forces its athletes to sign release forms and then enlists its licensing partners to enforce a boycott that has the effect of foreclosing compensation for amateur athletes. Now the judge is reviewing the NCAA's summary judgment motion and on Wednesday, agreed to take an amicus brief by Fox under consideration.
According to Fox's brief, authored by the same attorneys who are helping the broadcaster in industry-defining fights against Aereo and Dish's Hopper, sports are a matter of public concern, should be treated similarly to news reporting, and as such, should be given the full scope of First Amendment protection.
The suing amateur athletes have asserted publicity rights to their names and images, and if they prevail in the antitrust lawsuit, could conceivably clear roadblocks toward staking claim to billions of dollars in TV money. In Wilken's ruling last October, she said the Supreme Court hadn't yet addressed whether the First Amendment bars athletes from asserting a right of publicity on game telecasts and suggested that the conclusion would come down to whether the use of an athlete's name, image, or likeness is primarily "commercial."
In that context, Fox is standing up to what it sees as "a frontal assault on the Sports Broadcasters' (and other news organizations') freedom to televise sports and the public's right to be informed about newsworthy matters of substantial interest to large segments of the populace."
Fox is alarmed at the lawsuit's potential. According to the brief:
"If this Court takes the unprecedented step of conferring on college athletes the power to restrain broadcasts of sporting events in which they participate, other participants – such as referees, coaches, cheerleaders, team mascots, or even fans – will probably demand the same rights. A small group of 'hold-outs' or even one disgruntled participant conceivably could block the Sports Broadcasters from televising the most popular sporting events in the United States, cutting off millions of citizens from matters of great public interest."
And the warnings go beyond a cheerleader who might shut down the Super Bowl with the raise of an arm.
"Before long, participants in all sorts of newsworthy events could demand compensation for the use of their name, image and likeness in broadcasts or footage of those events. … If Plaintiffs are allowed to proceed with their claims in this case, the news media will be substantially constrained from televising and reporting newsworthy events, and the public will be deprived of vital, necessary, constitutionally protected news reporting."
Fox sees game broadcasts as "communicative news reporting, not commercial speech," but the plaintiffs in the case disagree.
Attorneys for the athletes have gone so far as log the time spent on advertisers and sponsors during the BCS Championship game. They totaled 62.25 minutes, which would be about a quarter of the entire telecast. Additionally, the suing athletes counted other reasons why "sports telecasts are proprietary entertainment programs": game telecasts are scheduled in advance, are presented in staged locations, are programmed in dedicated and titled TV program series, are subject to rights fees from leagues, are not handled by network news divisions, are subject to licensing conditions and news reporting restrictions, can't freely use highlights without payment, promote merchandise, integrate advertising messages, enable the broadcasters to leverage lucrative distribution fees and more.
Last year, the NCAA attempted to entice the Supreme Court into hearing a related dispute and clarifying the boundary between publicity rights and the First Amendment. The high court denied cert (probably because the case wasn't ripe), but before that happened, other media organizations including A&E Television, Discovery, the AP, Bloomberg and NPR also expressed concern in an amicus brief that a victory for athletes could increase the risk of producing films, books and news articles about public figures.
But those amici didn't go so far as to suggest that a ruling entitling amateur athletes to compensation from television exploitation would deprive the public of news reporting on things like natural disasters, parades and government shutdowns. Read Fox's full brief below.