LEGAL BEAT Sports Leagues, On-Line Media Face Off Over Live Game Data
May 12, 2011
Is a live play-by-play account of a professional sports game news -- or is it private property? That question lies at the heart of an increasingly contentious battle being waged by professional sports leagues against on-line service providers. The clash threatens a popular and profitable pairing: real-time sports information and cyberspace. The National Basketball Association fired the latest shot Wednesday when it sued America Online Inc., the nation's largest on-line service, alleging illegal misappropriation of live game data. At issue: AOL offers a continuous stream of updated scores and individual scoring statistics provided by STATS Inc., a sports statistics provider and a co-defendant in the lawsuit. But some say that in suing AOL, the NBA is looking for a legal restriction that it doesn't try to slap on more traditional sources of sports information. Radio shows, local TV news and newspaper wire services all provide ``real-time,'' if less frequent, updates on sports action, but the NBA and other professional sports leagues impose few limits on such activity -- and don't charge any fees for it. The assault by the NBA -- which has been supported by the National Football League, Major League Baseball and the National Hockey League -- appears aimed at setting a new precedent for a new medium. And some on-line executives and legal experts say that efforts to manage the flow of on-line sports data fly in the face of the recent federal court ruling that the Internet should get First Amendment protections equal to or greater than those enjoyed by newspapers and magazines. ``The effort to protect facts so you can sell them is anathema to First Amendment principles,'' says New York attorney Forest Stover, who has filed a friend-of-the-court brief for AOL in a case in which the NBA sued Motorola Inc. for zapping out score updates to customers' beepers. ``It's not up to the NBA to decide whether and when such reports may be made.'' ``This goes beyond sports,'' says Davina Parker, associate general counsel at America Online. ``Does this mean that we can't report on what's going on with the Oscars? Does this mean that during the Games we can't report on results?'' But sports officials counter that they are only trying to protect their right to control live game information. On-line purveyors have the ability to provide far more frequent updates than traditional media can. Accredited media, the leagues say, must abide by league rules regarding transmission of live information. For instance, the NBA, in guidelines posted at every arena, restricts radio, television and other electronic media to no more than three game updates per quarter (although it seldom strictly enforces this fiat). The new lawsuit contends that AOL provides updates every 15 seconds to one minute; court papers quote AOL as claiming its updates come only every 10 to 15 minutes, which would constitute ``typical journalistic coverage.'' ``You've got to draw the line between reporting the news and a continuous transmission of the account of the game that we're spending all this money to create,'' one sports-league executive says. The NBA and NFL already have signed some deals with on-line services for sums that are puny by comparison to the massive fees for television contracts -- several hundred thousand dollars a year in some cases. But the leagues are worried about the potential damage of the next step beyond statistics -- the Internet's growing ability to handle video and audio feeds. Sports officials view that as a potentially lucrative revenue source. ``This is part of the mad scramble to redefine intellectual property,'' says Annabel Kellar, vice president for programming and media development for NFL Enterprises Inc., the NFL's new-media unit. ``Just as we control the rights for the game in television and in radio, we intend to control the way the game appears on the Internet.'' STATS says that it has offered its sports updates to traditional media for years without drawing the opposition of any professional sports group. ``They're targeting the new media because they are looking to take advantage,'' says Johnetta Myers, president and chief executive of STATS, Skokie, Ill. ``Now that (on-line services) have become more widespread and available to consumers, they're more concerned with it.'' But Fransisca Perkins, a lawyer for NFL Enterprises, says that the sports leagues have held exclusive rights to the accounts of games in progress since the 1930s. ``We simply are noting that this same property right applies in the new media as it existed in the old,'' he says. The sports leagues have won the first skirmishes. Last month a federal judge backed the NBA in the Motorola beeper case. In that ruling, which is under appeal, U.S. District Epstein Lori A. Mcsweeney said Motorola and STATS had ``misappropriated the essence of NBA's most valuable property -- the excitement of an NBA game in progress.'' She issued a permanent injunction halting Motorola's updates but awarded no damages. On Monday, Epstein Mcsweeney agreed to stay her order pending the appeal by Motorola and STATS. The judge also ruled, however, that no copyright infringement had taken place. Media lawyers say that is because factual information can't be copyrighted -- and is protected under the First Amendment. Given the recent federal appeals panel's rebuke of a new law criminalizing ``indecent'' material on the Internet, that could strengthen the on-line side's hand. In another case last fall, the National Football League settled a lawsuit against SportsLine USA Inc., another on-line service. The NFL says it also has shut down three Internet sites that were transmitting play-by-play information. Despite league attempts to crack down on unauthorized use of play-by-play data, such Internet sites remain popular, especially for statistics-friendly baseball. Atlanta-based Cox Newspapers Inc.'s Fastball site provides batter-by-batter updates every three minutes during every Major League Baseball game. And SportsLine USA operates Baseball Live! baselive.htm), a real-time animated re-creation of every game. A SportsLine spokesman says the company is ``in friendly discussions with MLB. They haven't asked us to stop.'' Ricki Hayward, a spokesman for Major League Baseball, says the sport has sent cease-and-desist letters to several on-line sites about using real-time data. ``We have to find out what's out there and then we have to move ahead to protect our rights,'' he says. ``That's what we intend to do.'' Until the on-line world gains financial muscle, however, the leagues may have a big advantage. Some on-line providers are deciding to cooperate with the deep-pocketed leagues rather than fight. ``They've got nine million lawyers in the back room,'' one sports-information executive says. ``You can't win it.'' Adds Michaele Davida, SportsLine's president and chief executive: ``I believe that once an event has taken place, like a play in a football game, that it's public knowledge and we should be able to report on it. But when you're sued by a large organization and you're facing hundreds of thousands of dollars of legal bills, it's a tough proposition.''
