Wisconsin Interscholastic, et al v. Gannett Company, Incorporated, et al

Filing 19

15 copies Amicus brief filed by Amicus Curiae National Federation of State High School Associations by consent. Electronically Transmitted. [19] [6266029] [10-2627]

Wisconsin Interscholastic, et al v. Gannett Company, Incorporated, et al

Doc. 19

No. 10-2627 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Wisconsin Interscholastic Athletic Association and American-HiFi, Inc., Plaintiffs/Appellees, v. Gannett Co., Inc., and Wisconsin Newspapers Associations, Inc., Defendants/Appellants. Appeal from the U.S. District Court For the Western District of Wisconsin, Case No. 09-CV-0155 The Honorable William M. Conley, Presiding Brief of Amicus Curiae National Federation of State High School Associations in Support of Appellee and Affirmance

William E. Quirk MO #24704 Anthony W. Bonuchi MO #57838 POLSINELLI SHUGHART PC 120 West 12th Street, Suite 1700 Kansas City, Missouri 64105 [phone]; FAX [phone] Attorneys for Amicus Curiae National Federation of State High School Associations

Dockets.Justia.com

DISCLOSURE STATEMENT The National Federation of State High School Associations ("NFHS") is a not-forprofit organization that is neither publicly traded nor owned by any publicly traded company. In addition to this brief, the NFHS filed a amicus curiae brief in the District Court in this case. In both instances the NFHS has been represented by William E. Quirk ([e-mail]) and Anthony W. Bonuchi ([e-mail]) of Polsinelli Shughart PC, 120 W. 12th St., Kansas City, MO 64105. [phone].

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TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................................................................... iii INTEREST OF AMICUS CURIAE .................................................................................. 1 ARGUMENT ..................................................................................................................... 2 I. State Associations Enter Into Exclusive Licensing Agreements To Provide Greater Opportunities For Students To Benefit From Participating In Interscholastic Activities. .................................................... 3

II. A State High School Athletic Association's Ability To Sell Exclusive Licensing Rights To Its Championship Events Is Vital To Its Ability To Organize And Promote A Broad Range Of Interscholastic Activities. .................................................................................. 6 III. The WIAA's Exclusive Contracts Do Not Restrict Appellants' Ability To Report On WIAA Events. ............................................................... 11

CONCLUSION ................................................................................................................ 13 CERTIFICATE OF COMPLIANCE ............................................................................... 15 CERTIFICATE OF SERVICE ........................................................................................ 16

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TABLE OF AUTHORITIES

FEDERAL CASES Page(s) Home Box Office, Inc. v. F.C.C., 587 F.2d 1248 (D.C. Cir. 1978) ...................................................................... 13 KTSP-Taft Television & Radio Co. v. Ariz. State Lottery Comm'n, 646 F.Supp. 300 (D. Ariz. 1986) ............................................................. 2-3, 13 Post-Newsweek Stations-Connecticut, Inc. v. Travelers Ins. Co., 510 F.Supp. 81 (D. Conn. 1981) ..................................................................... 13 Rice v. Kempker, 374 F.3d 675 (8th Cir. 2004) .......................................................................... 12 FEDERAL: STATUTES, RULES, REGULATIONS, CONSTITUTIONAL PROVISIONS U.S. Const., amend. I ................................................................................... 2, 12-13 OTHER AUTHORITIES U.S. Department of Education, No Child Left Behind: The facts about 21st Century Learning ............................................................................................................ 4 John M. Barron, Bradley T. Ewing, Glen R. Waddell, The Effects of High School Athletic Participation On Education and Labor Market Outcomes ............. 6, 8 The Case for High School Activities, available at http://www.nfhs.org/WorkArea/Download/Asset.aspx?id=3263 . 5

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Interest of Amicus Curiae1 THE NATIONAL FEDERATION OF STATE HIGH SCHOOL ASSOCIATIONS ("NFHS") IS
THE NATIONAL SERVICE AND ADMINISTRATIVE ORGANIZATION OF HIGH SCHOOL ATHLETICS .

FOUNDED IN 1920, THE NFHS IS COMPOSED OF ONE HIGH SCHOOL

ATHLETIC OR ACTIVITIES ASSOCIATION IN EACH OF THE FIFTY STATES AND THE

DISTRICT OF COLUMBIA. APPROXIMATELY 90 PERCENT OF THE HIGH SCHOOLS IN THE UNITED STATES ARE MEMBERS OF STATE HIGH SCHOOL ATHLETIC OR ACTIVITIES
ASSOCIATIONS THAT ARE IN TURN MEMBERS OF THE NFHS.

THE NFHS'S MISSION IS TO PROVIDE LEADERSHIP AND NATIONAL COORDINATION
FOR THE ADMINISTRATION OF INTERSCHOLASTIC ACTIVITIES, INCLUDING ATHLETICS.

THE NFHS WORKS TO ENHANCE THE EDUCATIONAL EXPERIENCES OF HIGH SCHOOL
STUDENTS THROUGH THEIR PARTICIPATION IN INTERSCHOLASTIC ATHLETICS AND ACTIVITIES .

IT STRIVES TO PROMOTE PARTICIPATION AND SPORTSMANSHIP IN

ATHLETICS, TO DEVELOP GOOD CITIZENS THROUGH THAT PARTICIPATION, AND TO ENRICH THE EDUCATIONAL EXPERIENCE OF STUDENTS.

THE NFHS ALSO SEEKS TO

PROTECT THE ROLE THAT INTERSCHOLASTIC ATHLETICS PLAYS IN EDUCATION AND TO DEVELOP SOLUTIONS TO PROBLEMS RELATED TO HIGH SCHOOL ATHLETICS.

THE NFHS HAS A SUBSTANTIAL INTEREST IN HELPING ITS MEMBER ASSOCIATIONS
PROMOTE THEMSELVES AND THE ACTIVITIES THEY SPONSOR.

TO THAT END, THE

NFHS SUPPORTS ITS MEMBER ASSOCIATIONS' RIGHT TO ENTER INTO EXCLUSIVE
AGREEMENTS WITH MEDIA COMPANIES TO PRODUCE, LICENSE, AND TRANSMIT
1

All parties have consented to the filing of this brief.
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ASSOCIATION-ORGANIZED EVENTS ON RADIO, TELEVISION, AND THE INTERNET.

THESE

AGREEMENTS NOT ONLY HELP PROMOTE THE VALUE OF INTERSCHOLASTIC ATHLETICS, BUT THEY ALSO CREATE REVENUE ESSENTIAL TO THE FUNDING OF ASSOCIATIONSPONSORED STATE CHAMPIONSHIPS IN ALL SPORTS.

IF INDIVIDUAL STATE

ASSOCIATIONS WERE NOT ALLOWED TO ENTER INTO AND ENFORCE THESE EXCLUSIVE AGREEMENTS, THEIR ABILITY TO PROMOTE THE BENEFITS OF INTERSCHOLASTIC ACTIVITIES WOULD BE SIGNIFICANTLY DIMINISHED.

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ARGUMENT THIS APPEAL ASKS WHETHER APPELLEE WISCONSIN INTERSCHOLASTIC ATHLETIC ASSOCIATION ("WIAA") SHOULD BE ALLOWED TO SELL EXCLUSIVE LICENSES TO
TRANSMIT SPORTING EVENTS IT ORGANIZES AND SPONSORS.

APPELLANTS, WISCONSIN

NEWSPAPER ASSOCIATION ("NEWSPAPERS") AND THE MEDIA CONGLOMERATE GANNETT CO., INC. ("GANNETT") (COLLECTIVELY "APPELLANTS"), ARGUE THAT THE FIRST AMENDMENT AFFORDS THEM UNLIMITED ACCESS TO SPORTING EVENTS
SPONSORED BY STATE ASSOCIATIONS LIKE THE WIAA, AND SPECIFICALLY ALLOWS THEM TO TRANSMIT THE COMPETITIONS LIVE OVER THE AIR OR THE INTERNET.

CONTRARY TO APPELLANTS' ARGUMENT, THEIR FIRST AMENDMENT RIGHTS ARE
NOT ABSOLUTE.

COURTS IN FACT HAVE REPEATEDLY UPHELD GOVERNMENTAL

ACTION IN APPROPRIATE CIRCUMSTANCES, DESPITE ITS INCIDENTAL EFFECT ON A PARTY'S FIRST AMENDMENT RIGHTS.

SEE, E.G., KTSP-TAFT TELEVISION & RADIO CO. IN

V. ARIZ. STATE LOTTERY COMM'N, 646 F.SUPP. 300, 307-08 (D. ARIZ. 1986).

DETERMINING THE CONSTITUTIONALITY OF GOVERNMENTAL CONDUCT, COURTS WILL CONSIDER WHERE THE CONDUCT OCCURS AND THE CAPACITY IN WHICH THE GOVERNMENT IS ACTING.

ID. AT A MINIMUM, COURTS WILL BALANCE THE

CONSTITUTIONAL RIGHTS AT ISSUE AGAINST THE GOVERNMENT'S INTERESTS IN THE CHALLENGED CONDUCT.

ID. THE NFHS WILL LEAVE IT TO THE PARTIES TO ADDRESS THIS BRIEF WILL INSTEAD FOCUS LARGELY ON THE

THE CONSTITUTIONAL NUANCES.

INTERESTS AT STAKE, AND WILL EXPLAIN WHY THE WIAA, LIKE SIMILAR STATE

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ASSOCIATIONS THROUGHOUT THE COUNTRY, NEEDS TO BE ABLE TO ENTER INTO AND ENFORCE EXCLUSIVE LICENSING AGREEMENTS.

I.

STATE ASSOCIATIONS ENTER INTO EXCLUSIVE LICENSING AGREEMENTS TO PROVIDE GREATER OPPORTUNITIES FOR STUDENTS TO BENEFIT FROM PARTICIPATING IN INTERSCHOLASTIC ACTIVITIES.

APPELLANTS AND THEIR AMICI TRY TO IMPUGN THE WIAA FOR ITS SUPPOSED "PROFIT MOTIVE" IN ENTERING INTO EXCLUSIVE LICENSING CONTRACTS. IT IS
UNDOUBTEDLY CORRECT THAT THE WIAA SEEKS TO RAISE REVENUE USING ITS LICENSE AGREEMENT.

BUT, APPELLANTS' CHARACTERIZATION MISSES THE BROADER

POINT OF THESE AGREEMENTS, WHICH IS NOT TO SIMPLY "PROFIT," BUT TO RAISE THE FUNDS NECESSARY TO PROMOTE INTERSCHOLASTIC ATHLETICS.

AT BOTTOM,

EXCLUSIVE LICENSING CONTRACTS ALLOW ASSOCIATIONS TO RAISE REVENUE, THE ULTIMATE PURPOSE OF WHICH IS TO SUPPORT THE NOT-FOR-PROFIT ASSOCIATIONS' EDUCATIONAL MISSION.

STUDIES AND RESEARCH DONE AROUND THE COUNTRY ALL HIGHLIGHT THE
IMPORTANCE OF INTERSCHOLASTIC ATHLETICS TO EDUCATION.

HIGH SCHOOL SPORTS

UNQUESTIONABLY CONTRIBUTE VALUABLE LESSONS ABOUT TEAMWORK, SPORTSMANSHIP, WORK ETHIC, AND WINNING AND LOSING, ALL OF WHICH ENHANCE THE ACADEMIC CURRICULUM.

BEYOND THESE INTUITIVE BENEFITS, HOWEVER, THERE

IS EVIDENCE THAT PARTICIPATION IN EXTRACURRICULAR ACTIVITIES HAS A DIRECT AND POSITIVE EFFECT ON PARTICIPANTS' LIVES AND FUTURE SUCCESS. FOLLOWING STATISTICS ASSEMBLED BY THE NFHS IN A 2004 REPORT:

CONSIDER THE

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· THE UNITED STATES DEPARTMENT OF EDUCATION FOUND IN 2002 THAT
YOUNG ADULTS WHO DO NOT PARTICIPATE IN EXTRACURRICULAR ACTIVITIES ARE 49% MORE LIKELY TO USE DRUGS AND 37% MORE LIKELY TO BECOME TEEN PARENTS THAN THOSE WHO DO.

U.S. DEPT. OF

EDUCATION, NO CHILD LEFT BEHIND: THE FACTS ABOUT 21ST CENTURY LEARNING, 2002. · A MINNESOTA STATE HIGH SCHOOL LEAGUE STUDY SHOWED THAT THE
AVERAGE GPA OF STUDENT-ATHLETES WAS 2.84, COMPARED TO 2.68 FOR OTHER STUDENTS, AND THAT STUDENT-ATHLETES MISSED ONLY 7.4 DAYS OF SCHOOL EACH YEAR COMPARED TO 8.8 DAYS FOR NON-ATHLETES.

· A NORTH CAROLINA STUDY REVEALED EVEN STARKER DIFFERENCES,
FINDING THAT THE AVERAGE GPA FOR ATHLETES WAS 2.98 VERSUS A GPA OF 2.17 FOR NON-ATHLETES.

THAT SAME SURVEY SHOWED THAT THE

DROPOUT RATE FOR ATHLETES WAS A MERE .6% COMPARED TO A SOBERING

10.32% FOR NON-ATHLETES. · A STUDY PUBLISHED IN THE AUGUST 2007 ISSUE OF MEDICINE & SCIENCE IN SPORTS & EXERCISE FOUND THAT STUDENTS WHO PARTICIPATED IN
VIGOROUS SPORTS LIKE SOCCER AND FOOTBALL DID APPROXIMATELY 10% BETTER IN MATH, SCIENCE, ENGLISH, AND SOCIAL STUDIES CLASSES.

· A 2006 RESEARCH PROJECT PUBLISHED BY THE CENTER FOR INFORMATION & RESEARCH ON CIVIC LEARNING & ENGAGEMENT FOUND THAT 18-25

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YEAR-OLDS WHO PARTICIPATE IN SPORTS DURING HIGH SCHOOL ARE MORE LIKELY TO VOLUNTEER, VOTE, FEEL COMFORTABLE SPEAKING IN PUBLIC, AND WATCH AND FOLLOW THE NEWS.

THE NATIONAL FEDERATION OF STATE HIGH SCHOOL ASSOCIATIONS, THE CASE FOR HIGH SCHOOL ACTIVITIES, AVAILABLE AT
HTTP://WWW.NFHS.ORG/WORKAREA/

DOWNLOADASSET.ASPX?ID=3263 (LAST VISITED, NOV. 10, 2010). THOUGH HE MAY NOT HAVE KNOWN THE STATISTICS, JUSTICE BRYON WHITE--A
CELEBRATED FOOTBALL PLAYER IN HIS OWN RIGHT--CERTAINLY UNDERSTOOD THE IMPORTANCE OF EXTRACURRICULAR ACTIVITIES LIKE SPORTS:

SPORTS AND OTHER FORMS OF VIGOROUS PHYSICAL ACTIVITY PROVIDE EDUCATIONAL EXPERIENCE WHICH CANNOT BE DUPLICATED IN THE CLASSROOM. THEY ARE AN UNCOMPROMISING LABORATORY IN WHICH WE MUST THINK AND ACT QUICKLY AND EFFICIENTLY UNDER PRESSURE . . . . SPORTS RESEMBLE LIFE IN CAPSULE FORM AND THE PARTICIPANT QUICKLY LEARNS THAT HIS PERFORMANCE DEPENDS UPON THE DEVELOPMENT OF STRENGTH, STAMINA, SELF-DISCIPLINE AND A SURE AND STEADY JUDGMENT. JOHN M. BARRON, BRADLEY T. EWING, GLEN R. WADDELL, THE EFFECTS OF HIGH SCHOOL ATHLETIC PARTICIPATION ON EDUCATION AND LABOR MARKET OUTCOMES, REVIEW OF ECONOMICS AND STATISTICS, AUGUST 2000, AT 409. UNDOUBTEDLY,
INTERSCHOLASTIC ATHLETICS ARE AN IMPORTANT COMPONENT OF HIGH SCHOOL STUDENTS' EDUCATIONS NATIONWIDE.

AND, AS WILL BE SEEN, LICENSING

AGREEMENTS SUPPORT THIS PUBLIC INTEREST BY INCREASING OPPORTUNITIES FOR STUDENTS TO PARTICIPATE IN, AND BENEFIT FROM, INTERSCHOLASTIC ACTIVITIES.

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VI.

A STATE HIGH SCHOOL ATHLETIC ASSOCIATION'S ABILITY TO SELL EXCLUSIVE LICENSING RIGHTS TO ITS CHAMPIONSHIP EVENTS IS VITAL TO ITS ABILITY TO ORGANIZE AND PROMOTE A BROAD RANGE OF INTERSCHOLASTIC ACTIVITIES.

THE REVENUE GENERATED BY LICENSING AGREEMENTS HELPS MAKE IT POSSIBLE
FOR STATE HIGH SCHOOL ACTIVITIES ASSOCIATIONS TO ORGANIZE AND PRODUCE STATE-WIDE COMPETITIONS, NOT JUST IN POPULAR SPORTS, BUT ACROSS A WIDE RANGE OF ACTIVITIES.

STATE-WIDE ASSOCIATIONS GENERALLY ORGANIZE POSTSEASON TOURNAMENTS
AND CHAMPIONSHIPS, AND THE EXCLUSIVE LICENSING CONTRACTS NOW AT ISSUE APPLY ONLY TO THOSE EVENTS.

SOME SPORTS ARE OF COURSE MORE POPULAR THAN BUT THE CHAMPIONSHIP

OTHERS, AND THEIR TOURNAMENTS ARE SELF-SUSTAINING.

CONTESTS AND TOURNAMENTS IN MOST SPORTS LOSE MONEY AND THUS DEPLETE THE ASSOCIATIONS' RESOURCES.

BECAUSE ORGANIZATIONS LIKE THE WIAA ARE NOT-

FOR-PROFIT, THE REVENUE THEY RAISE IN CONNECTION WITH THE MOST POPULAR EVENTS IS CRITICAL TO THEIR ABILITY TO SURVIVE AND TO ORGANIZE EVENTS FOR YOUNG PEOPLE WHO PARTICIPATE IN LESS POPULAR SPORTS.

INCREASINGLY, ASSOCIATIONS LIKE THE WIAA ARE TRYING TO MAXIMIZE
REVENUE TO SUPPORT THEIR MISSION BY USING EMERGING TECHNOLOGY IN CONNECTION WITH HIGH SCHOOL BASKETBALL TOURNAMENTS, FOOTBALL CHAMPIONSHIPS AND OTHER POPULAR STATE-WIDE SPORTING EVENTS.

HERE, THE

WIAA HAS ENTERED INTO MULTIPLE AGREEMENTS GRANTING EXCLUSIVE
PRODUCTION AND LICENSING RIGHTS TO VARIOUS MEDIA COMPANIES.

IT GRANTED

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WHEN WE WERE YOUNG PRODUCTIONS ("WWWY") "THE EXCLUSIVE RIGHT TO
PRODUCE, SELL AND DISTRIBUTE ALL WIAA TOURNAMENT SERIES AND CHAMPIONSHIP EVENTS FOR ALL WIAA SPORTS WITH THE EXCEPTION OF EXISTING CONTRACTS AS OF THE DATE OF THIS CONTRACT."

EXHIBIT A TO FIRST AMENDED COMPLAINT, DOC. #7.

SIMILARLY, THE WIAA HAS EXCLUSIVE CONTRACTS WITH FOX SPORTS NET NORTH, LLC TO TELECAST STATE FOOTBALL CHAMPIONSHIP GAMES, AND WITH TWO OTHER
LOCAL TELEVISION COMPANIES ("QUINCY") TO TRANSMIT THE STATE BOYS AND GIRLS HOCKEY AND BASKETBALL CHAMPIONSHIP GAMES.

AFFIDAVIT OF JAMES L. HOYT,

DOC.# 56 ¶ 20. THESE AGREEMENTS PROVIDE THE MEDIA COMPANIES THE EXCLUSIVE
RIGHT TO DISSEMINATE THEIR PRODUCTIONS OF THE EVENT OVER THE AIR AND THE INTERNET .

IN HIS AFFIDAVIT, DR. JAMES L. HOYT STATES THAT IN 2008, THE WIAA RECEIVED $75,000 FROM QUINCY FOR THE RIGHTS TO THE STATE HOCKEY AND BASKETBALL
TOURNAMENTS FOR BOYS AND GIRLS, $20,000 FROM FOX FOR THE FOOTBALL STATE FINALS, AND $60,000 FROM WWWY FOR ALL OF THE OTHER EVENTS.

HOYT

AFFIDAVIT, DOC.# 56 ¶ 39. THE WIAA ALSO RECEIVED $80,000 FROM A SPONSORSHIP
PARTNER.

ID. AT ¶ 41. THESE FUNDS ARE ESSENTIAL TO THE WIAA'S GOALS OF

PROMOTING AND FOSTERING INTEREST AND PARTICIPATION IN INTERSCHOLASTIC ATHLETICS .

ALL STUDENT-ATHLETES SHOULD HAVE THE SAME OPPORTUNITY TO PARTICIPATE
IN STATE-WIDE, END-OF-THE-SEASON COMPETITIONS, EVEN IF THEIR TALENTS OR INTERESTS LIE OUTSIDE THE MOST POPULAR, SELF-SUSTAINING SPORTS.

THE WIAA

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AND ITS SISTER ASSOCIATIONS ACROSS THE COUNTRY ENSURE THAT THESE OPPORTUNITIES ARE AVAILABLE BY, AMONG OTHER THINGS, OBTAINING CORPORATE SPONSORS FOR THEIR TOURNAMENTS AND SELLING EXCLUSIVE LICENSING RIGHTS TO THIRD PARTIES.

HERE, WITHOUT LICENSING REVENUE, THE WIAA WOULD BE HARD-PRESSED TO
AFFORD CHAMPIONSHIP EVENTS FOR ALL ACTIVITIES.

IN 2008, LESS THAN HALF OF BASEBALL LOST

THE WIAA-ORGANIZED TOURNAMENTS PAID FOR THEMSELVES.

AROUND $109,000, SOFTBALL LOST ABOUT $121,000, AND TRACK LOST NEARLY

$200,000. EXHIBIT A TO AFFIDAVIT OF DOUGLAS CHICKERING, DOC. #53. SPORTS
LIKE SWIMMING (-$45,495), TENNIS (-$56,234), GYMNASTICS (-$31,153), CROSS COUNTRY (-$78,346), AND GOLF (-$51,755) WERE ALL IN THE RED AS WELL.

ID. ALL

TOLD, THESE NINE SPORTS ACCOUNTED FOR APPROXIMATELY $692,983 OF THE EXPENDITURES IN THE WIAA'S 2008 BUDGET.

ID.

ON THE OTHER HAND, THE MORE POPULAR SPORTS--BASKETBALL, WRESTLING,
FOOTBALL, HOCKEY, AND SOCCER--GENERATED $2,546,874 IN REVENUE.

OF THAT

AMOUNT, $235,000 APPEARS TO HAVE COME DIRECTLY FROM THE LICENSING CONTRACTS.

HOYT AFFIDAVIT, ¶¶ 39-41. WHILE TOURNAMENTS ARE NOT THE

WIAA'S ONLY SOURCES OF REVENUE AND EXPENSES, THEY MAKE UP A SIGNIFICANT
PORTION THE WIAA'S BUDGET.

EVEN THOUGH, VIEWED AS A WHOLE, THE

TOURNAMENTS WERE PROFITABLE, THE WIAA ITSELF STILL LOST $34,779 IN 2008.

THUS EVERY SOURCE OF REVENUE IS ESSENTIAL TO THE WIAA'S SURVIVAL AND TO ITS

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ABILITY TO FULFILL ITS MISSION OF ORGANIZING AND PROMOTING HIGH SCHOOL ATHLETICS .

THE WIAA'S EXPERIENCE MIRRORS THAT OF OTHER STATE ASSOCIATIONS
THROUGHOUT THE COUNTRY.

EXHIBIT A, ¶ 4, DOC. #67. ALTHOUGH THESE

ASSOCIATIONS STRIVE TO ORGANIZE AND PROMOTE CHAMPIONSHIP CONTESTS IN ALL SPORTS AND ACTIVITIES, THE REALITY IS THAT SOME ACTIVITIES ARE FAR MORE POPULAR THAN OTHERS.

ID. ¶ 5. WITHOUT THE ABILITY TO USE REVENUE FROM

POPULAR SPORTS TO SUBSIDIZE LESS-POPULAR ONES, HIGH SCHOOL SPORTS AS A WHOLE, AND AMERICAN SECONDARY EDUCATION, WILL SUFFER.

ID. ¶¶ 4-8.

NOT ONLY DO THE CHALLENGED LICENSING AGREEMENTS MAKE IT POSSIBLE FOR
STATE ASSOCIATIONS LIKE THE WIAA TO ORGANIZE STATE-WIDE EVENTS IN ALL SPORTS, THEY ALSO INCREASE THE PUBLIC'S ACCESS TO THESE EVENTS, THEREBY HIGHLIGHTING AND PROMOTING THE VALUABLE ROLE ATHLETIC COMPETITION PLAYS IN THE LIVES OF HIGH SCHOOL STUDENTS.

FOR EXAMPLE, AS DR. HOYT EXPLAINS, THE

WWWY WAS WILLING TO TRANSMIT ALL WIAA EVENTS OVER THE INTERNET. HOYT AFFIDAVIT, ¶ 20. BUT NEITHER THE WWWY, NOR ANY OTHER MEDIA OUTLET,
WOULD INVEST THE RESOURCES NECESSARY TO PRODUCE THIS INTERNET CONTENT IF THEY WERE NOT GRANTED THE EXCLUSIVE LICENSING RIGHTS.

ID. AT ¶¶ 45-48. IN

FACT, IN 2004-2005, BEFORE THE WWWY CONTRACT WAS EXECUTED, NO WIAA EVENTS WERE AVAILABLE ON THE INTERNET.

IN 2008-2009, AFTER THE WWWY

CONTRACT WAS EXECUTED, 82 LIVE CONTESTS COULD BE SEEN THROUGH INTERNET

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STREAMING.

ID. THIS, TOO, IS CONSISTENT WITH THE EXPERIENCE OF STATE HIGH EX. A, ¶¶ 4, 8, DOC. #67.

SCHOOL ASSOCIATIONS THROUGHOUT THE COUNTRY.

ALLOWING THE WIAA AND SIMILAR STATE ASSOCIATIONS TO USE EXCLUSIVE
LICENSING AGREEMENTS TO CONTROL VIDEO STREAMING NOT ONLY HELPS THEM MAINTAIN AND PROMOTE COMPETITIONS IN LESS-POPULAR ACTIVITIES, BUT IT SERVES A NUMBER OF OTHER IMPORTANT GOALS.

AMONG THESE ARE:

· · · · · ·

AVOIDING COMMERCIAL EXPLOITATION OF STUDENT-ATHLETES; AVOIDING ANY ASSOCIATION BETWEEN HIGH-SCHOOL SPORTS AND
UNVETTED INTERNET STREAMERS, WHO MAY CREATE AN INFERIOR PRODUCT;

AVOIDING CONFUSION AS TO THE SOURCE OF INTERNET-STREAMED GAMES; REDUCING ADMINISTRATIVE AND ORGANIZATIONAL COSTS FOR SCHOOLS
AND ATHLETIC ASSOCIATIONS THAT WOULD OTHERWISE NEED TO NEGOTIATE WITH MULTIPLE INTERNET STREAMERS;

GIVING INTERNET STREAMERS A FINANCIAL INTEREST IN INVESTING IN
THEIR ENTERPRISE AND DOING A MORE PROFESSIONAL JOB; AND

AVOID OVERCROWDING AND CONFLICTS BETWEEN INTERNET

STREAMERS VYING FOR LIMITED PHYSICAL SPACE AND RESOURCES IN WHICH TO RECORD AND STREAM GAMES--WHICH MIGHT OTHERWISE THREATEN THE PHYSICAL SAFETY OF SPECTATORS AND STUDENTATHLETES, DISRUPT THE FLOW OF GAMES, AND LEAD TO STREAMING FROM LESS-THAN-DESIRABLE VANTAGE POINTS. GRANTING APPELLANTS THE UNRESTRICTED ACCESS THEY NOW DEMAND WOULD THREATEN EVERY ONE OF THESE GOALS. FROM THE PERSPECTIVE OF THE AMERICAN HIGH SCHOOL COMMUNITY, THIS CASE CONCERNS NOT JUST VIDEO STREAMING, BUT ALSO THE ABILITY OF EDUCATIONAL INSTITUTIONS TO PROTECT THEIR STUDENTS.

THE WIAA'S EXCLUSIVE LICENSING AGREEMENTS FOSTER THIS LATTER, PARAMOUNT
GOAL, AND THE COURT SHOULD BALANCE THOSE IMPORTANT INTERESTS AGAINST ANY CLAIMED CONSTITUTIONAL VIOLATION.

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VII.

THE WIAA'S EXCLUSIVE CONTRACTS DO NOT RESTRICT APPELLANTS' ABILITY TO REPORT ON WIAA EVENTS.

ANY RESTRICTION THE EXCLUSIVE LICENSING AGREEMENTS AT ISSUE MAY PLACE
ON APPELLANTS' ABILITY TO TRANSMIT THE HIGH SCHOOL ATHLETIC EVENTS LIVE IS INCONSEQUENTIAL, ESPECIALLY WHEN WEIGHED AGAINST THE IMPORTANT INTERESTS JUST DESCRIBED.

THE NEWSPAPERS AND GANNETT SPECIFICALLY COMPLAIN THAT

THE WIAA'S EXCLUSIVE LICENSING AGREEMENTS RESTRICT THEIR ABILITY TO

"REPORT" ON WIAA-SPONSORED EVENTS. ESSENTIALLY, THEY ARGUE THAT BECAUSE
THESE CONTRACTS FORCE THEM TO OBTAIN LICENSES TO STREAM VIDEO OF THE EVENTS OVER THE INTERNET, THE FREEDOM OF THE PRESS IS SOMEHOW HINDERED.

BUT THE WIAA'S CONTRACTS DO NO SUCH THING. TO BEGIN WITH, THE EXCLUSIVE LICENSING AGREEMENTS DO NOT IN ANY WAY
PREVENT THE APPELLANTS FROM "REPORTING" ON WIAA-SPONSORED EVENTS.

THEY ONLY LIMIT THE UNLICENSED TRANSMISSION OF MORE THAN TWO MINUTES OF A
GAME AT A TIME.

REPORTERS AND JOURNALISTS ARE FREE TO SHOW CLIPS OF THE

GAME, WRITE STORIES, INTERVIEW COACHES AND PLAYERS, SUMMARIZE AND DISSEMINATE STATISTICS, AND PERFORM ALL THE OTHER TASKS THAT TRUE REPORTING ENTAILS.

THE SAME IS TRUE OF PHOTOGRAPHS TAKEN AT THE GAMES.

APPELLANTS ARE FREE TO PUBLISH OR OTHERWISE DISSEMINATE THE PHOTOS THEY
TAKE AS PART OF THEIR COVERAGE SO LONG AS THEY REFRAIN FROM SEPARATELY SELLING THE PICTURES.

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THE ONLY LIMITATIONS APPELLANTS FACE ARISE WHEN THEY ATTEMPT TO GO
BEYOND THEIR TRADITIONAL PROVINCE OF REPORTING.

IF MEDIA COMPANIES LIKE

APPELLANTS NOW WISH NOT JUST TO REPORT ON, BUT ACTUALLY TO TRANSMIT HIGHSCHOOL EVENTS OVER THE AIRWAVES OR THE INTERNET, THEY ADMITTEDLY MUST OBTAIN A LICENSE FROM WWWY.

BUT THESE ARE HARDLY RESTRICTIONS ON THERE IS A CLEAR DISTINCTION

AP P E L L A N T S '

TRADITIONAL FREE PRESS ROLES.

BETWEEN "REPORTING" ON AN EVENT AND TRANSMITTING IT IN FULL OVER THE INTERNET .

SEE RICE V. KEMPKER, 374 F.3D 675, 679 (8TH CIR. 2004) (HOLDING THAT

RESTRICTIONS ON FILMING EVENTS DO NOT VIOLATE FIRST AMENDMENT); POST-

NEWSWEEK STATIONS-CONNECTICUT, INC. V. TRAVELERS INS. CO., 510 F.SUPP. 81, 84 (D. CONN. 1981) (EXPLAINING THAT THERE IS NO SPECIAL ACCESS FOR THE PRESS TO
SPORTING EVENTS).

THERE IS NOTHING NEW OR OFFENSIVE ABOUT EXCLUSIVE LICENSING CONTRACTS
IN THIS CONTEXT.

SEE, E.G., HOME BOX OFFICE, INC. V. F.C.C., 587 F.2D 1248, 1253

(D.C. CIR. 1978) (UPHOLDING FEDERAL COMMUNICATIONS COMMISSION RULE
ALLOWING EXCLUSIVE LICENSING CONTRACTS IN TELEVISION); KTSP-TAFT, 646

F.SUPP. AT 307-08 (UPHOLDING EXCLUSIVE CONTRACT TO BROADCAST STATE
LOTTERY AS NOT VIOLATING FIRST AMENDMENT).

"CONTRACTS CONFERRING THE

EXCLUSIVE RIGHT TO BROADCAST SPORTING EVENTS AND ARTISTIC OR THEATRICAL PERFORMANCES ARE COMMONPLACE."

ID. WHILE ENTERTAINMENT CAN BE "NEWS,"

WHEN THAT ENTERTAINMENT "IS THE EXPOSITION OF AN ATHLETIC EXERCISE . . . IT IS ON THE PERIPHERY OF PROTECTED SPEECH (FOR PURPOSES OF A BALANCING OF

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CONFLICTING INTERESTS)."

POST NEWSEEK, 510 F.SUPP. AT 81 (FINDING THAT CITY'S

CONDITIONING ACCESS TO ICE-SKATING CHAMPIONSHIPS ON AGREEMENT TO INDEMNIFY IT FOR ANY DAMAGES ARISING OUT OF THE UNAUTHORIZED TRANSMISSION OF THE EVENT DID NOT VIOLATE FIRST AMENDMENT).

CONCLUSION CONTRACTS LIKE THE WIAA'S EXCLUSIVE RIGHTS AGREEMENTS ARE VALID AND
DO NOT OFFEND THE FREEDOM OF THE PRESS.

THE MINIMAL INTRUSION ON

APPELLANTS' ABILITY ALSO TO PROFIT FROM LIVE TRANSMISSIONS OF THE EVENTS IS
INSIGNIFICANT WHEN COMPARED TO THE CRUCIAL ROLE THESE LICENSING AGREEMENTS PLAY IN PROMOTING AND PROTECTING HIGH SCHOOL ATHLETICS. STATE ASSOCIATIONS LIKE THE WIAA ARE TO EFFECTIVELY PROMOTE INTERSCHOLASTIC ATHLETICS FOR ALL SPORTS AND ALL STUDENT-ATHLETES, THEY AS A PRACTICAL MATTER MUST BE ALLOWED TO RAISE REVENUE BY ENTERING INTO EXCLUSIVE CONTRACTS LIKE THOSE AT ISSUE HERE.

IF

THESE SAME CONTRACTS HAVE

IMPORTANT ADDITIONAL BENEFITS BOTH IN EXPANDING PUBLIC ACCESS TO POSTSEASON CONTESTS AND PROTECTING STUDENT-ATHLETES AND THEIR SCHOOLS FROM EXPLOITATION AND OTHER ADVERSE INFLUENCES.

THE NFHS URGES THIS COURT TO

AFFIRM THE DISTRICT COURT'S GRANT OF SUMMARY JUDGMENT IN THE WIAA'S FAVOR.

DATED: NOVEMBER 12, 2010

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RESPECTFULLY SUBMITTED,

WILLIAM E. QUIRK [e-mail] ANTHONY W. BONUCHI [e-mail] POLSINELLI SHUGHART PC TWELVE WYANDOTTE PLAZA 120 W. 12TH STREET, SUITE 1700 KANSAS CITY, MO 64105 [phone] [phone] FAX

MO #24740 MO #57838

ATTORNEYS FOR AMICUS CURIAE NATIONAL FEDERATION OF STATE HIGH SCHOOL ASSOCIATIONS

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CERTIFICATE OF COMPLIANCE

I

HEREBY CERTIFY THAT THIS BRIEF COMPLIES WITH THE TYPE-VOLUME

LIMITATIONS SET FORTH IN CONTAINS

FED. R. APP. P. 32(A)(7)(B)

AND

29(D). THIS

BRIEF

3,557

WORDS.

I

FURTHER CERTIFY THAT THIS BRIEF COMPLIES WITH THE

TYPEFACE AND TYPE STYLE REQUIREMENTS OF

FED. R.
BRIEF

OF

APP. P. 32(A)(5)-(6)
BEEN

AND IN

SEVENTH CIRCUIT RULE 32(A)-(B).

THIS

HAS

PREPARED IN

PROPORTIONALLY SPACED TYPEFACE USING

MICROSOFT WORD 2003

13-POINT

BOOK ANTIQUA. I
FURTHER CERTIFY THAT AN ELECTRONIC VERSION OF THIS BRIEF HAS BEEN

PROVIDED ON A DISC TO THIS COURT UNDER CIRCUIT RULE 31(E), AND THAT THE DISC IS VIRUS FREE.

DATED: NOVEMBER 12, 2010

_______________________________________ ATTORNEYS FOR AMICUS CURIAE NATIONAL FEDERATION OF STATE HIGH SCHOOL AS S O C I A T I O N S

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CERTIFICATE OF SERVICE

I

HEREBY CERTIFY THAT ON

NOVEMBER 12, 2010,

A COPY OF THE FOREGOING

WAS SERVED VIA U.S. MAIL AND ELECTRONICALLY VIA EMAIL TO:

PERKINS COIE, LLP JOHN S. SKILTON [e-mail] DAVID L. ANSTAETT [e-mail] JEFF J. BOWEN [e-mail] AUTUMN N. NERO [e-mail] 1 EAST MAIN STREET, SUITE 201 MADISON, WI 53703 TELEPHONE: [phone] FACSIMILE: [phone] ANDERSON, O'BRIEN, BERTZ, SKERENE & GOLLA GERALD O'BRIEN [e-mail] 1257 MAIN STREET P.O. BOX 228 STEVENS POINT, WI 54481-0228 TELEPHONE: [phone] FACSIMILE: [phone] ATTORNEYS FOR THE PLAINTIFFS' WISCONSIN INTERSCHOLASTIC ATHLETIC ASSOCIATION AND AMERICAN-HIFI, INC. MAWICKE& GOISMAN S.C. JENNIFER S. WALTHER [e-mail] 1509 NORTH PROSPECT AVENUE MILWAUKEE, WI 53202 TEL: [phone] FAX: [phone] ATTORNEY FOR THE PLAINTIFFS WISCONSIN INTERSCHOLASTIC ATHLETIC ASSOCIATION GODFREY & KAHN, S.C. ROBERT J. DREPS

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[e-mail] MONICA SANTA MARIA [e-mail]

ONE EAST MAIN STREET, SUITE 500 PO BOX 2719 MADISON WI 53701 608-284-2606 FAX: [phone] ATTORNEYS FOR DEFENDANT GANNETT CO., INC.

ATTORNEYS FOR AMICUS CURIAE NATIONAL FEDERATION OF STATE HIGH SCHOOL AS S O C I A T I O N S

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