Why you should be concerned when sport leagues use credentials to control the flow of information

Q: I'VE RECEIVED SEVERAL MEMBER NOTIFICATIONS from ASNE about the ongoing fight with Major League Baseball over the credentials issued to reporters. My paper isn't in the vicinity of an MLB team, so we don't apply for credentials. Why should I be paying attention to this issue?

A: You need to pay attention because MLB and other pro sports aren't the only game in town or even the most popular. They're just the richest. Just like every kid growing up tries to emulate the pros, so will smaller and nonprofessional leagues. In other words, even if you don't have a professional sports franchise in your city, you're likely to see variations on their restrictions when you apply for credentials to cover the local college team. Not in a college town? Don't worry — high school sports associations are trying to control the flow of information as well. In fact, the trend has reached all the way back to the sandlots, as even Little League restricts media's news gathering and publishing rights.

The surprising aspect of this trend is that it has little to do with sports and everything to do with money, even at the amateur level.

To understand the issue better, it would be easier to stop discussing the concept of credentials. A credential is nothing more than a contract between an event organizer and a reporter or photographer that defines the terms by which entry will be granted. In other words, a sports league or event sponsor is simply telling reporters the rules they must follow in order to cover games and have access to athletes and coaches for interviews. These rules are often presented with a “take-it-or-leave-it” posture. If a reporter or photographer doesn't like the terms and refuses to sign, he or she may be denied entry; if caught breaking the rules, he or she may be ejected or refused entry to a future event.

Most leagues and sports associations, especially professional ones, now see newspapers as competition rather than allies as they create their own methods of content distribution via Web sites and cable television channels. As a result, the rules of access are changing. Whereas access to facilities often was mainly conditioned on maintaining a sense of order and decorum, there is now a much greater emphasis and limitation on collecting, distributing and retaining information. All of that is geared to establishing ownership rights of event-related information so that leagues, teams and events can maximize profits. These restrictions can be broken down into three general areas. Understanding how to identify each will help you prepare for restrictions you may face.

Some restrictions are encountered before a game or event begins. Leagues often create barriers to entry under the guise of spatial concerns, which hinder newsgathering in some way. These include:

• Requiring specific permission to report in distinct media. In other words, a print reporter must notify the league and get separate permission to provide content in another form. This language was used by MLB in its 2008 credentials: “When submitting a request for a credential, Bearer must provide the home Club with written notice stating that it intends to transmit or display Non-Text Accounts, and Bearer may only transmit or display such Non-Text Accounts if such prior written notice is provided.” Because the restrictions are new, they're still being tested, and no one knows the extent to which they're being enforced.

• Forcing a reporter to assume the risk of all harm that may result from covering the event. This has been used by the Ladies Professional Golf Association: “Each photographer and entity assumes all risks and danger incidentals to the game of golf, occurring before, during or after actual play” and, more alarmingly, given participants involved, the Professional Bull Riders Association, which takes no responsibility for any harm “including but not limited to claims for property damage, bodily injury or death.”

Another very high-profile requirement was imposed by the National Football League that required sideline photographers to wear bright red vests for identification and security purposes, the objectionable characteristic of which was the inclusion of the “Reebok” and “Canon” logos (two major sponsors of the NFL).

• Forcing relinquishment of, or agreement not to use, any device that can transmit information or statistics in real time, including mobile phones, PDA's or laptop computers. This is often used by professional golf tournaments.

The US Open tennis tournament in 2002 attempted to require all reporters applying to cover the matches to undergo invasive criminal background checks and release the USTA from any liability resulting from the disclosure of the results. Although other credential applications may require at least some background check, or the right to engage in such a check, the requirements are not as far-reaching as the proposed 2002 USTA checks.

Again, a reporter must agree to these conditions before he or she ever enters the premises. Since many credentials are issued just before or at the event, reporters and photographers must make split-second decisions. It is not surprising that most of them accede to restrictions as a result.

The second set of restrictions are imposed when those who issue the credentials actively police the requirements during the event to ensure that a reporter only engages in approved activities while in the arena or stadium or immediately thereafter. The intention here is to monopolize the market for real-time distribution of scores, statistics and reports for the league Web site or television channels or to make sure that exclusive rights for broadcast or Internet webcasts are sold at the highest price. This may take the form of:

• An outright prohibition on the posting of text, photos, audio or video to Web sites while an event is in progress. The Professional Golf Association and Masters Golf Tournament originated this, but it has become widespread in recent years, migrating beyond the professional level. The NCAA Southeastern Conference Football Championship game's credentials stated that “still photographs must be used on a time-delayed basis that is at least five (5) minutes after the happening of the event depicted by the still photograph.”

• Limits placed on the number of photos or length of audio of video that can be posted to a Web site on a time-delayed basis. In addition to requiring a five-minute delay in posting photos from the championship football game, the Southeastern Conference allowed no more than 10 photos from the game to reside on a single Web site at any given time. The NFL famously limited media Web sites to 45 seconds per day of video of team employees (including coaches and players) taken on NFL or team property. These materials often must be removed from the Web site within a certain period of time. The idea is for the NFL to be the sole repository for all archived audio and video footage and photos (and redistribution thereof).

But the most disturbing trend in sports coverage is the third category of restrictions — the assertion of ownership rights in images or statistics from an event. Blocked on multiple occasions from actually owning statistics, player images or facts from their games, sports leagues are trying to gain by contract what doesn't exist in law.

To understand this final area requires some understanding of basic copyright law. A copyright can exist only when an original work has been fixed in a tangible medium. Where there may be originality in a sports match, there is no fixation until it has been broadcast or photographed, which is often a task performed by the media. The portions of the game that are “fixed” (statistics) are not considered original — they are just numbers. Both the NBA and the MLB have found themselves on the losing end of court cases in which they attempted to assert a right to statistics or images from game as a means of blocking reporters, gamblers or fantasy-sports entities from profiting from their product. In order to control the current and future distribution of sports scores and images, major sporting leagues have in recent years:

• Simply required assent to the fact that the league, venue or event owns all copyright and other interest in the photographs, audio or video taken at the game, while granting the newspaper a license to use the work for news purposes only. The Professional Bull Riders Association virtually shouts this fact at reporters when its credentials state (in CAPS): “ALL COPYRIGHTS and other intellectual property rights thereto IS THE EXCLUSIVE PROPERTY OF AND OWNED SOLELY BY PBR. Holder is hereby authorized to photograph, film, or videotape only and must deliver all pictures, footage, and recordings to PBR after the event and prior to release. ALL USE of any pictures, footage and recordings MUST BE APPROVED BY PBR PRIOR TO USE.”

• Forced the media to refrain from further commercial reproductions of photos, audio or video. This has been employed by the NFL, which told the Indianapolis Star that it had to cease and desist selling T-shirts bearing Colts quarterback Peyton Manning's image to commemorate the Colts' 2007 NFL Championship. The offending T-shirt featured a photo of a smiling Manning holding up the Star's front page from the day after the Super Bowl. It is this restriction that has been repeated most often by amateur leagues.

Newspapers in western Texas were told that they could not sell reprints of photos taken at regional Little League baseball playoff games. The Louisiana and Wisconsin High School Athletic Associations imposed similar restrictions after contracting the right to commercial photography and reprints to a private company.

A similar restriction was actually invoked to deny access to reporters seeking to cover high school basketball playoffs in Illinois. The Illinois Press Association sued the Illinois High School Association, and the lawsuit eventually was settled, with reporters getting access, but not before the fight moved to the state legislature. Illinois lawmakers approved legislation that prohibited public elementary or public secondary school or association of schools from trying to “regulate in any manner the dissemination of news or the use of visual images by the news media.” The bill was withdrawn after the settlement was reached.

The Illinois scenario merits the attention of newspaper editors in big cities and small towns alike. Let's face it — local sports sometimes are the most popular stories in your newspapers and on Web sites. Small-market newspapers are often among the highest profile businesses in town. The reporters and editors might have personal relationships with a large portion of the town population. It threatens far more than access when a paper is told that it can't reproduce a photo from a high school basketball tournament or a local swim meet at the request of a parent. It threatens your entire status as a unifying force in the community. Why? So the high school sports association can wring a few more dollars out of parents, fans and students who are willing to pay for reprints.

Unfortunately, while copyright law is on your side, the First Amendment does not provide a strong right of access because most sports venues are private property. This is true even when the venue in question is publicly funded. The lone exception seems to be a stadium or arena located at or hosted by a public university or public high school.

Even public high schools or universities may impose restrictions that are reasonable in light of legitimate concerns, which allow the event organizer to impose certain restrictions under the guise of maintaining security. Future access victories likely will require legislative changes at the state or federal level, which may be beyond the means of individual newspapers in today's economy.

ASNE continues to work with other media organizations and national companies to seek change at the federal level. But the job at the state and local level depends on joint efforts of local or regional media to educate the public that this is not an issue about media credentials or even media access — it's about citizens' rights to be a part of the game even when they are not playing. *