At first glance, the ongoing lawsuit between the Wisconsin Interscholastic Athletic Association and Gannett Newspapers might seem like the Iran–Iraq War, or a Bears–Vikings game — fans of neither side might wonder if both could lose.
The WIAA, the sanctioning body for Wisconsin high school athletics, sued Gannett after The Post~Crescent live-streamed several football playoff games in 2008. If a media organization wants to broadcast or stream postseason games, it must get the WIAA’s permission, pay a fee, and adhere to various other rules:
Internet blogs, forums, tweets and other text depictions or references are permitted and are not subject to rights fees unless they qualify as play-by-play (see definition below) or are not in compliance with the media policies of the WIAA. Play-by-play accounts of WIAA Tournament Series events via text are subject to text transmission rights fees.
Real-time play-by-play accounts of WIAA Tournament Series events are subject to text transmission rights fees of $30 per game/event at the State level and $20 per game/event at pre-State levels.
Play-by-play – Play-by-play is detailed regular entries or description of the sports events as they are happening, or of the actual action as it occurs, including the continuous sequential detailed description of play, of events, or other material such as graphics or video regarding any WIAA tournament game or event, so that it approximates a video or audio transmission that allows the recipient to experience the game or event as it occurs.
How this has essentially worked is that, if I were blogging from the state tournament, I could text that, for instance, Jordan Jess hit a two-run home run to left field to give Ripon a 6–1 lead over Spooner in the fourth inning, but I could not text or blog something like:
Jordan Jess, batting .467. He’s 0-for-2. He takes ball one.
Breaking ball outside, 2 balls no strikes.
Called strike on the outside corner, 2 and 1.
The 2–1 gets away but Polcyn holds at first, 3 and 1.
Strike on the outside edge of the outside corner, 3 balls 2 strikes.
Throw back to first, and Polcyn is back.
Fly ball to left and deep and GONE! A two-run opposite-field home run for Jess, and Ripon leads 6–1.
(If you are getting texts like that, I hope you have an unlimited-service plan.)
The WIAA also prohibits broadcasters from broadcasting state tournament events, since it sells those broadcast rights. That is why, despite covering two state champion football teams, I have never broadcast a state football game from Camp Randall Stadium; the WIAA sold broadcast rights to Fox Sports Wisconsin on the grounds that government-access cable TV would be an unfair competitor. If you wanted to watch Ripon’s state baseball semifinal against Green Bay Notre Dame or state title game against Spooner and you had no Internet access, no luck for you. (Fox Sports Wisconsin carries most state tournament finals, not pre-final games, on tape-delay.)
The lawsuit started in state court, then moved to federal court, gaining the Wisconsin Newspaper Association as a co-defendant and getting the attention of high school sport-sponsoring organizations across the country.
The WIAA won the latest game when a three-judge panel of the U.S. Seventh Circuit Court of Appeals in Chicago ruled in favor of the WIAA, writing, “We conclude that WIAA’s exclusive broadcasting agreements for Internet streaming are consistent with the First Amendment. … Gannett’s theory that coverage and broadcast are identical is … analytically flawed. Simply put, streaming or broadcasting an event is not the same thing as reporting on or describing it.”
That is logically correct, and truth be told, I’m not sure why someone would choose to watch two sportswriters conversing about a game with no one doing actual play-by-play. However, that’s the Post~Crescent’s decision and an individual’s decision to watch or not.
There is, however, a significant party missed in Gannett’s attempt to cloak itself in the First Amendment. Robert Dreps, the defendants’ attorney, was paraphrased as saying that the decision “mistakenly compared taxpayer-funded high school sporting events with private entertainment acts and professional sports.”
High school sports is not the same thing as the National Football League or the National Collegiate Athletic Association. Taxpayer funds do not allow the Packers to operate (of course, there is the ½-percent Brown County sales tax that is funding the early-2000s Lambeau Field renovations, but that is funding a stadium owned by the taxpayers). Division I college athletic departments are not usually funded through tax revenues, and private college athletic departments are never funded through tax revenues.
In contrast, everything important about high school athletics is funded by taxpayers. Your property tax dollars built your high school. Your property taxes and other tax dollars pay coaches’ salaries, such as they are, and pay the salaries of teachers and other school district personnel who are paid to work games, plus the cost of the transportation for student–athletes and coaches to games. Except in cases of donations or sponsorships, your tax dollars bought uniforms and sports equipment.
As Drebs wrote in a 2008 letter to the WIAA:
State high school sports tournaments are public, taxpayer-supported events. … High school athletic organizations have long been treated as state actors, just like their public school members, for constitutional purposes. … Although the issue has not yet been decided in Wisconsin, we see no factual or legal basis on which the WIAA’s constitutional status can be distinguished from its counterparts in Tennessee, Illinois, Arizona, Missouri, Louisiana, Oklahoma, Indiana, Mississippi, Rhode Island or Pennsylvania … or any of the other states where the issue has been adjudicated …
That makes one wonder why this case is being presented as a case of the First Amendment vs. commercial interests (which too are part of the First Amendment), instead of a case about how taxpayer dollars are being used. As the Gannett Wisconsin Media story put it, “The dispute centered only on postseason play because those tournaments are organized and run by the WIAA, which both sides agree is bound by the same rules that apply to government agencies.”
That’s quite an admission by the WIAA, which claims on its website to be “a voluntary, unincorporated, and nonprofit organization” “governed by its member schools” with input from such groups as coaches, school athletic directors, school district administrators, sports physicians, officials and WIAA staff. You’ll note that the word “taxpayer” appears nowhere in this paragraph, because the word “taxpayer” appears nowhere on the WIAA’s website despite the fact that taxpayers fund everything that allows the WIAA to exist, including WIAA membership dues.
Perhaps this shouldn’t be a surprise, given that most WIAA staff once upon a time were teachers, and as we saw earlier this year teacher unions have traditionally cared very little about the people paying their salaries. If taxpayers were actually represented in the WIAA, perhaps Ripon Area School District taxpayers might get an answer from the WIAA as to why, in an era of gas prices reapproaching $4 per gallon, Ripon students are going 144 round-trip miles on a school night to play two conference basketball games and one conference volleyball match.
An Associated Press story about WIAA vs. Gannett noted that “At least a dozen associations have similar exclusive streaming deals. They say it brings in money to keep state championship tournaments going. But newspapers worry the ruling could lead to more reporting restrictions.”
In fact, there already are reporting restrictions. The WIAA’s media rules note that “Media of a personal, recruiting or rankings nature, or whose demographic audience are fan-based or focused primarily on one school or a small number of schools do not qualify as news-gathering organizations for purposes of media credentials.” The WIAA contracts with a video production company for postseason video, and that company requires video providers to provide them with tapes (without, as far as I know, any compensation) and includes such requirements that announcers not be biased for or against one team and must not go out of their way to criticize officials. (The second should be second nature for announcers who want to act like professionals; as for the first, whom should an announcer seek to please: the WIAA or the organization that pays him and whose viewers are in fact rooting for one of the teams?)
Even though the WIAA is currently winning in federal court, there is a danger here that could make the entire federal lawsuit moot. In fact, I suggested some Democrat in the Legislature do just that the last time the Democrats controlled the Legislature — create a bill to assign the Department of Public Instruction to take over high school and middle school athletics. The DPI is one of my least favorite tentacles of state government, but the DPI does regulate (taxpayer-financed) schools, and athletics are part of the educational experience (the WIAA even says so), so there is at least some logic in having the DPI replace the WIAA. (The University Interscholastic League, Texas’ high school sports sanctioning body, is part of the University of Texas.) And it would certainly make superintendent of public instruction elections more interesting. (Don’t bother asking when taxpayers will get to vote in WIAA Board of Control elections.)
There is also another danger to taxpayers who are also fans of high school sports. The Wisconsin State Journal in Madison wrote in 2009 that the WIAA’s winning the lawsuit “could significantly reduce the coverage of high school sports that millions offans across Wisconsin get from their local newspaper, in print and online.” The WIAA tried something similar earlier in the 2000s when it attempted to set up a radio network for the state football and basketball tournaments that would have required radio stations to pick up the entire tournament, not just games of local interest, or not carry any games, including those of local interest.
Policies that serve to reduce media coverage aren’t going to increase support of high school athletics, particularly in these cash-strapped days. And given the role high school athletics has in communities across this state, policies that serve to reduce media coverage aren’t going to increase support of schools, financial or otherwise.