Louisville Courier-Journal v. NCAA

Thank you, Jenna Jameson.

 

I am getting to this thread way late but thought I'd add a few points to clear up some misconceptions.

And. . . before you start breaking Webby's new rules about flaming, I don't necessarily agree with the NCAA on this (I just understand what they are doing).

First, as a few posters have mentioned, the NCAA doesn't have any jursidiction over anything but NCAA Championships. Any rule they have couldn't be enforced at a college football regular season game, a bowl game or a college basketball game.

The rules only affect the championships, which the NCAA has sold the media rights to for a lot of money (most of which goes to pay for the championships and then gets back to the member schools).

All they are trying to do is protect the rights that they sold, which, if they didn't do, could cost them $$$$ if the rights holder (CBS, ESPN, etc.) chose to hold their feet to the fire.

The logic: The NCAA Championship is a private event. The NCAA rents the facilities and pays the bills so they do in fact have the right to restrict what is or isn't done on site during the event. If they wanted to restrict admission to people who are only wearing a red shirt than they technically could do this.

I've hosted a number of NCAA events and any time a media credential is issued to the event, the media member is provided with the rules that the NCAA has set for the event. Admission to the event via media credential is based on the media member agreeing to follow the guidelines set forth. If you don't want to agree to the rules, then they won't issue the credential. Newspapers may have the right to freedom of the press, but nowhere does it say that they have to be allowed to cover an event (NCAA event, not an event at my school because that is a totally different can of worms).

How many media outlets have done a big-time interview with a celebrity only after they agreed to stay away from certain topics or they paid for the right or agreed to other restrictions (it happens all the time). This is really no different from that.

From the NCAA's eyes (and the media rights holder), anything that somebody does live during an event helps to take away from the financial impact that the rights holder might receive from their broadcasts. Somebody paid for the rights to live stats so why should somebody be able to post them for free. A running commentary on the game, even if it is somewhat time-delayed, is still a commentary on the game and might take away from what ESPN is doing.

How many times have we heard on a major sport broadcast the line about, "the rights are owned by Major League Baseball and any rebroadcast. . . . without the express written consent of MLB is prohibited." That is MLB's way of doing what the NCAA is doing.

Decades ago, Xerox, who was the leader in copying machine technology, was forced to spends millions of dollars sending out "cease and desist" orders to any media outlet, TV show or other incident where somebody publically referred to the product of their copying machines as "Xeroxes" because if they had not done this, the tem Xerox, which was then a private mark, could be declared a public mark and they would lose all rights to it. Any company could then produce a machine and put Xerox on it.

The NCAA is only trying to avoid losing the rights to sell the live descriptions of its championship events. Why should the C-J be able to post the blog online -- most likely on a page with paid avertising -- and draw some revenue from an event that they don't own. (Reporting the final details of an event are a different story).

As for those of you who mentioned the potential extreme circumstances (what if somebody died? what if the game was suspended -- could I write a story befor eit actually ended?) you need to get real. Of course those things wouldn't be prohibited. But. . . you technically wouldn't be allowed to show the video until the event was over.

This brings up a good point. There are non-NCAA related instances right now that limit the showing of highlights from the game until it is over. Are these blogs any different? Why don;t people complain about this?

You also can't go live to interview athletes from pro locker rooms following an event. Does anybody complain about this? I've hosted NCAA Championships before and TV stations are required to take a feed of the games and all press conferences and aren't allowed to go live (or on tape) from the actual basketball arena until after the rights-holder is off the air for the day. If an outlet wants to stand up to the NCAA and refuse to follow the rule, good luck getting in because you'd have to buy a ticket from a scalper.

If your media outlet got away with blogging from an NCAA Championship in the past, you were lucky but still technically going against the rules. I'm sure things will be much tougher.

I hope this helps. Again, I don't agree with all of these ideas, I just understand the reasoning.

 

A good perspective. Thanks.

The law is going to have to catch up with the technology on this one, as in many other facets of life. For one thing, blogging is not video, and it's not live television. But you did a good job of presenting the NCAA point of view, and I appreciate that.

 

This is all going to turn on the "live description" phrase, I suspect.

But I don't care. The NCAA is being a big bully and needs to be kicked in the nuts.

With any luck, this will be the hammer thrown through Big Brothers' viewscreen.

 

You might be right, and I think that's a good thing. No one, and I mean no one, is fast enough to blog a "live description" as I define it. That's one of several things that separates blogging from live television and radio. How the NCAA and the courts define it is another thing, of course.

 

SID -- one of the points here is that the credential agreement said nothing about live blogging. That came in a memo passed out in Louisville 21 minutes before the first game started, and well after the credentials were accepted.

You'll notice in Omaha, when the policy was agreed to beforehand, the C-J has complied with the policy. (Though I can tell you first hand, its leadership doesn't agree with it.)

The NCAA will refer media outlets to its Division I manual and its interpretation of blogging as "live representation." But media entities are not governed by any NCAA manual. This should have been outlined in any agreement before the credentials were granted, not 21 minutes before the game began -- and in some cases like in Mississippi -- wasn't outlined at all.

Finally this. I'll give you that these championships are "private events." (If you think the NCAA "rented" Jim Patterson Stadium in Louisville -- a government-owned facility, I might add -- I'd disagree. Those regionals are sold to the highest bidder. Schools submit their bids and then are on the hook for whatever they promised if they get the event. The NCAA gets what it was promised, boom or bust.)

Still, I think the full ramifications of the NCAA championship as "private event" need to be examined. If these are entertainment events, as opposed to intercollegiate competitions that happen to be televised, then why shouldn't the NCAA's tax-exempt status be reexamined?

In a letter to Congress to answer that very question, NCAA president Myles Brand wrote: "While intercollegiate athletics is very entertaining, entertainment is not the primary purpose of the enterprise. While football and men’s basketball at the Division I levels are enormously popular with the public and attractive to the entertainment media, they are as distinct from their professional counterparts as
student musical groups are from professional symphonies. They are demarcated by their
purpose and motivation rather than their scale of public or media fiscal support."

Brand here seems to draw a distinction between an NCAA event as an entertainment event, yet that's what the NCAA wants to claim in comparing these events to professional games.

I understand, the NCAA generates revenue so that it can distribute more revenue so that there are "more opportunities for the student athlete." In reality, the additional NCAA revenue has paid more and more outlandish coaching salaries and built more luxury suites for big donors.

I'm fine with this being a business. The question is, would the NCAA be fine with being treated like a business?

 

Let's hope that Gannett (or somebody else) has the stones and the cash to take the NCAA to court on this. The NCAA doesn't exactly have a great track record when it comes to winning in court. And, as Eric Crawford so deftly pointed out, the NCAA's claim to tax-exempt status is being questioned by those who are sick of its tactics. For the NCAA, a court case at this time could be a dangerous combo of thin ice and slippery slope.

 

The Brentwood, Tenn., Academy case heard by the U.S. Supreme Court this term (decision due soon) has implications here. SCOTUS is likely to rule that, though membership in the organization is voluntary, the association eventually becomes a quasi-governmental orgaziation and has to abide by the law of the land with much more consistency than currently exists.

That would not bode well for the NCAA, especially in player eligibility cases -- where the concept of "innocent until proven guilty" was long ago forgotten.

The Brentwood case right now hinges on a freedom of speech argument, which makes it relevant to Baseball Blog-gate.

 

Nicely done.

 

I just don't see this as a big deal, and certainly not as a First Amendment issue. I think the C-J is way off on this. The NCAA can't stop the C-J, or any publication, from printing anything, whether in the newspaper or online. If it could and did, then we'd have a problem. What the NCAA can do is decline to give reporters special treatment, ie., press credentials. If the C-J wants to cover the game, the C-J can buy a ticket and sit in the stands. Anyone can do this. Anyone can watch the game on TV and report on the action online. But the NCAA is perfectly within its rights to decline press credentials, or any special treatment, to anyone it wants.

Of course, what the NCAA is doing is stupid. But stupid is not the same as illegal or outrageous.

 

It's my understanding that the NCAA prohibits live updates from the event, period. By media, fans, etc.

Of course, this is unenforceable. They're not going to be able to find a guy in the stands posting updates to his personal blog via Blackberry. But they would if they could.

The NCAA already has prohibited off-site blogging by media outlets.

It's not a First Amendment issue, I'd agree. But soon, I wouldn't be surprised if it weren't state law in Kentucky that media outlets should be granted the right to cover sporting events at public institutions in any way they see fit.

If the University of Louisville were holding a meeting to discuss funding for the baseball program, the media would be required to be admitted by state law. It wouldn't be too difficult to get the law amended to provide for similar access to such public events, giving media the right to cover them in their customary manner.

Think a state legislature wouldn't get involved in something so trivial? Several years ago, when U of L bought out of a contract to play a road game at Western Kentucky, the legislature moved immediately to pass a measure requiring U of L to play Western at the earliest available date. They attached it to the state budget bill, and it passed. Nice priorities we have here, but there you have it. (The ramifications of that would be that you'd likely see no more NCAA championship events in the state, but that may be the reality anyway after U of L refused to eject Bennett from the game and told the NCAA to do it themselves.)

I think the paper would gladly buy tickets and sit in the stands to cover games if it meant we could do it in any way we see fit. However, it would not mean that.

Regardless, it looks like things are gearing up for the print media to begin to have to pay for access at many events, or if not for the access, for the right publish live from the event, etc.

That's a true cover charge.

 

Here's a perverse twist: If I'm not mistaken, the scenario you describe -- access via legislative action -- would mean that U of L would be required to go to court in defense of the NCAA. I think NCAA bylaws are set up in such a way that, as a condition of membership, the affected schools must fight on behalf of the NCAA.

My recollection of this goes back to a player eligibility issue more than 15 years ago. The school self-reported (well, actually first a NEWSPAPER reported, but I digress . . . ) and declared the basketball player ineligible. When the player sued for reinstatement, his suit was filed against the school and not the NCAA even though it was an NCAA infraction involved.

The AD just about went ballistic on me when I suggested it would be to the basketball coach's benefit for school lawyers to do a piss-poor job in court. He gave me the speech about how it was the school's responsibility to do its best job on behalf of the NCAA. I informed him it was my job to write about how silly the process was.

Footnote: The player actually was guilty as sin and lost in court. I think he missed 8-10 games of his season.