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

Filing 26

Original record on appeal filed electronically. Contents of record : 20 vol. of pleadings. [26] [6274573] [10-2627]

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

D

Doc. 26 Att.

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN ______________________________________________________________________________ WISCONSIN INTERSCHOLASTIC ATHLETIC ASSOCIATION, AMERICAN-HIFI, INC. Plaintiffs, Case No. 09-cv-0155 v. GANNETT CO., INC., and WISCONSIN NEWSPAPER ASSOCIATION, INC., Defendants. ______________________________________________________________________________ AFFIDAVIT OF DOUGLAS E. CHICKERING ______________________________________________________________________________ I, Douglas E. Chickering, hereby declare, 1. I have personal knowledge of the facts stated herein and, if called upon to do so, could

and would testify competently thereto. 2. I am the former Executive Director for the Wisconsin Interscholastic Athletic Association

("WIAA"). I was the Executive Director from January 1, 1986 to July 31, 2009, which includes the period during the events giving rise to this litigation. As Executive Director, I was responsible for the overall operations of the WIAA. I reported to the Board of Control of the WIAA, and was authorized by the Board of Control to make decisions as necessary for the proper operation of WIAA business. Among my responsibilities was responsibility for the budget, revenue and expenditures of the WIAA, and I was authorized to enter into contracts for the benefit of the WIAA and its members. 3. The WIAA is a private, voluntary, unincorporated and non-profit association that has

been in operation since 1896. The WIAA is a member-based organization comprised of 506 participating public and private high schools and 117 Junior High/Middle Level school members. 1

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The WIAA is membership directed. The members develop the rules that govern the association, and, at an Annual Meeting each April, the membership approves any changes to the Constitution, Bylaws, and Rules of Eligibility. 4. The WIAA seeks to develop, direct and control an interscholastic athletic program to

promote the ideals of its membership and opportunities for participation by its members. These opportunities include member participation in post-season WIAA-sponsored, controlled, and funded sports tournaments. 5. An overwhelming majority of the WIAA's budget is derived from revenues generated by

the State Tournament Series, which WIAA organizes, sponsors, and administers. Those tournament revenues come primarily from ticket sales. I was responsible for the WIAA's 20072008 budget, and in that year the tournaments brought in $6,202,963, which was 86% of the WIAA's total operating revenue of $7,177,115. The remaining 2007-2008 WIAA revenue comes from: membership dues, which amount to .5% of revenue; sports fees, which amount to 5.5% of revenue; officials dues, which amount to 5% of revenue; and miscellaneous revenue such as subscriptions and rule book orders, which amount to 3% of revenue. Attached hereto and incorporated herein by reference as Exhibit A is the WIAA's 2007-2008 budget. 6. All of WIAA's revenue is used to support its programs and the administration thereof,

including paying for the expenses of operating the tournaments in all WIAA recognized sports. 7. Some of the WIAA recognized sports generate a profit, and others generate a loss for the

WIAA. The profits from one sport are used to offset deficits in other sports. 8. In 2008, the WIAA subsidized the following sports (meaning expenses for a sport

exceeded revenues for that sport, so WIAA revenues from other sports covered the deficit): Baseball, Cross County, Golf, Gymnastics, Softball, Swimming and Diving, Tennis, and Track

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& Field. Throughout the years, it has usually been the same sports that are not revenue producers that require subsidization. The WIAA member schools desire their students to be able to play sports and have the same exposure for the sports even where a commercial market would not otherwise support such exposure. Thus, the WIAA provides those opportunities for its members' students through the revenue that comes from the commercially viable sports. 9. The WIAA has had long experience with exclusive contracts. Fox Sport Network

Wisconsin ("Fox") has had the exclusive contract to transmit the seven state football finals since 2001. The WIAA receives $20,000 annually from Fox for that exclusive contract. Attached hereto and incorporated herein by reference as Exhibit B is the Fox contract. 10. The WIAA has had an exclusive video transmission contract for boys basketball games

with Quincy Newspapers, Inc. ("QNI") since 1968. In the 1980s, the QNI contract expanded to include rights to exclusively broadcast WIAA's Boys and Girls Basketball Tournaments and Hockey Finals. QNI owns and operates five different television stations, (collectively called "The WIAA State Network"), that broadcast the WIAA tournaments and finals pursuant to the contract. 11. Beginning in about 2003, at which time the QNI contract required QNI to pay the WIAA

an annual rights fee of $140,000, I was informed by Laurin Jorstad of QNI that QNI could no longer afford to offer a competitive product for the contract price of $140,000. QNI prepared an analysis of the costs of producing a WIAA event, which factored in personnel costs, satellite time and rental agreements with the production trucks who were subcontractors. Thus we negotiated a reduction in the annual fee: In 2002, QNI paid the WIAA $140,000 under the contract; in 2003, QNI paid $125,000; in 2004, QNI paid $75,000.

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12.

In 2004, with two years left on the contract, QNI said it could not guarantee that it would

enter into a successor agreement unless the WIAA was willing to alter its price. Thus, the WIAA and QNI negotiated a reduction in price down to $40,000 per year, and secured an extended contract with QNI, operating as The WIAA State Network, until 2010. Attached hereto and incorporated herein by reference as Exhibit C is the 2004-2010 Agreement between the WIAA and the WIAA State Network. QNI paid an annual fee of $40,000 to the WIAA until 2008, at which time upon mutual agreement of the parties, the QNI payment to the WIAA increased to $75,000 annually. 13. In 2004, due to the loss of revenue from QNI, the WIAA began to look for other sources

of revenue. 14. At that time, no television station carried games other than the Football Finals (which

was carried by Fox), and the Hockey Finals and Boys and Girls Basketball Tournaments (which were carried by QNI), except that in some instances local community access channels would broadcast tape-delayed local games. In fact, in 2005 the vast majority of our sports were not carried by any media organization either on television or the internet. 15. At about the same time as we lost the QNI revenue, we were hearing from the coaches

committees that they were questioning why their sports were not being broadcast on TV, and that they had a strong interest in getting their sports on TV. This was especially true of volleyball and wrestling. They wanted the same exposure for their sports and athletes that basketball, hockey and football were receiving. The WIAA staff was anxious to get as many sports publicly distributed as possible.

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16.

We inquired whether our existing contractual partners might be interested in broadcasting

these events, but they expressed concern over whether they could implement a feasible financial model fro m which they could profit by the expansion, so declined to pursue the opportunity. 17. Meanwhile, in the fall of 2003, I met Tim Eichorst of When We Were Young

Productions ("WWWY") after a football tournament. He expressed interest in mass distribution of WIAA sports events. We agreed to meet in December to discuss this further. 18. In December of 2003, the WIAA Director of Communications, Todd Clark, and myself

met with Tim Eichorst. At that meeting, he discussed his idea of producing and distributing as many WIAA sporting events as possible. He explained this was an opportunity to get more sports on TV. He also talked about other platforms for distribution, such as streaming over the internet. He wanted to get all state finals tournaments distributed, and also work on producing and distributing some sectional and regional events. At that point, we did not have any sectional or regional events that were available to the public through any media, except if a local access channel aired an event in their locality, but even then those were tape-delayed broadcasts, not live. 19. Based on that meeting, in May of 2004, we signed a letter of intent with WWWY to

further discuss and develop a contractual arrangement for WWWY to produce and distribute WIAA athletic events. The contract would provide exclusivity to WWWY (except for sports already covered under other contracts), and would require WWWY to pay a fee to the WIAA. The letter of intent was signed at the same time as we were engaged in discussions with QNI about renegotiating their contract for a reduced fee, so the prospect of a contractual arrangement with another partner to provide revenue to the WIAA, while at the same time satisfying our goals and interest in expanding distribution of athletic events, was of great interest to the WIAA.

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20.

As these discussions continued, Mr. Eichorst came to the WIAA and made a presentation

to the Board of Control explaining his proposal and his business model in more detail. He proposed delivering broadcast quality video production of WIAA events, and distributing these products through all physical, electronic, and broadcast media. His company would be responsible for all filming in the field. The events would be live streamed from the venue. He would then also create tapes and DVDs of the events, which would be produced at his studio, which would then be distributed through various media platforms. 21. Under his proposal, the WIAA and its members would have no financial commitment to

the venture, but would have the opportunity to earn royalties based upon distribution revenues. As I understood it, WWWY expected to make profits on "broadcast media," including such things as real-time game feed, broadcast TV highlight feeds, and studio production of weekly TV shows. 22. Based on this proposal, WWWY and the WIAA entered into a Production Rights And

Distribution Agreement ("the Agreement"). Attached hereto and incorporated herein by reference as Exhibit D is the Agreement. The Agreement was fully executed in May of 2005, and lasts for a term of ten (10) years. 23. Under the WWWY contract, WWWY has the right to transmit via internet all WIAA

Tournament Events except Football and Hockey State Finals, and the entire State Boys and Girls Basketball Tournaments. WWWY paid $60,000 to the WIAA in 2008 for these rights. 24. The Agreement substantially benefits the WIAA and its members. The WIAA's

broadcast partners pay for the exclusive transmission rights to state tournaments, and that revenue helps to fund the WIAA's state tournaments. The Agreement thus allows the WIAA to obtain revenue that it uses to organize and operate its programs and tournaments. The WIAA

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keeps all of that revenue from its contract partners for its own internal operations, and does not transfer any of that revenue to the State of Wisconsin, to any state agency, or to general state funds. Further, that revenue benefits the WIAA membership because it allows the WIAA to expand athletic program opportunities for its members for all WIAA-recognized sports, including providing revenue for those sports that the WIAA typically subsidizes or for those sports without significant public attendance. 25. The Agreement further benefits the WIAA membership as it allows the WIAA to expand

transmission of athletic events that might not otherwise be transmitted due to the level of public interest or commercial appeal. Through the contract with WWWY granting WWWY exclusive transmission rights, the WIAA has achieved additional distribution and streaming of tournaments that were not transmitted before, including all state tournaments, and regional and sectional competitions. 26. The Agreement is also beneficial to the WIAA because WWWY provides approximately

$500,000 in service to the WIAA that the WIAA does not have to pay for. These services provide a cost savings to our member schools, and have been the most cost-effective way for the WIAA to serve its membership while at the same time increasing participation. It also allows us to ensure that we are returning money to the schools that host events so that they are not losing money on hosting an event. WWWY's services have also increased the WIAA's exposure to the public and the public's participation in the WIAA, by making available WIAA meetings and events on wiaa.tv at no cost to the WIAA. 27. Finally, the Agreement allows the WIAA to fulfill its purpose to promote the broad

educational aims of the WIAA's member schools and to cultivate the high ideals of good

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cit izenship and sportsmanship by controlling the association of high school sports with inappropriate goods and services (such as gambling, alcohol, tobacco, and adult entertainment). 28. The WIAA hosts and administers 25 State Championship Tournaments, which includes

both boys and girls sports, and individual and team competition. The WIAA secures the facilities for the WIAA-hosted State Tournaments. Throughout the years, the WIAA has done this through leases of appropriate facilities or venues for the athletic competition at issue. To provide stability and continuity, the WIAA has multi-year contracts with the sporting venues. The minimum length of a contract is three years and we often have five-year contracts (except the WIAA does not have leases with the venues for cross country or gymnastics). When the WIAA uses the venues, it uses them solely for its athletic competitions. The WIAA has use of the facilities or venues for the duration of the athletic competition as specified in the leases, and does not otherwise have any control over or obligation with respect to the management or operation of the facilities or venues when not used by the WIAA for its athletic events. 29. The State Tournaments are held in sixteen different athletic facilities throughout the State

of Wisconsin. The WIAA tries to find the best facility available to showcase the athletic event, provided the facility is available and affordable, and offers good value for the WIAA's money. Each of the venues was designed for the specific athletic tournament being held there. Thus, for example, the boys and girls golf tournaments are held at University Ridge golf course in Madison, a venue solely designed for golf; the football tournaments are held at Camp Randall stadium in Madison, a facility used for football games; boys and girls soccer tournaments are held at Uihlein Soccer Park in Milwaukee, which was designed specifically for soccer games; swimming and diving tournaments are held at the UW Natatorium in Madison, a facility with pools and a diving well; girls and boys tennis tournaments are held at the Nielsen Tennis

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Stadium in Madison, a facility containing indoor and outdoor tennis courts and squash courts; and softball tournaments are held at the Goodman Diamond in Madison, which is a facility designed and used for softball games. The WIAA also hosts venues at several private facilities: baseball tournaments are held at Fox Cities Stadium in Appleton, which is a privately owned minor league baseball park; the boys volleyball tournament is held at Wisconsin Lutheran College in Milwaukee, a privately owned college; and the cross country tournament is held at the Ridges Golf Course in Wisconsin Rapids, a privately owned golf course (which is not leased). Other WIAA tournaments are also held at the Lincoln Field House in Wisconsin Rapids (which is not leased), the UW Field House in Madison, the Memorial Stadium in LaCrosse, the Resch Center in Green Bay, the Kohl Center in Madison, and the Alliant Energy Center in Madison, all of which are venues used for different athletic events. 30. The WIAA establishes a fee for admission to its tournaments. The public is permitted

entry to the tournament upon payment of the fee. The WIAA provides for free admission for certain categories of people, such as cheerleaders, school staff members, game officials and credentialed media, but no other person beyond those identified may be provided complimentary admissions. The WIAA sets its admission fee so that the event is an affordable outing for families. 31. 32. The WIAA has not denied a legitimate media organization entry to a tournament. From 2001-2003, the WIAA contracted to grant the nonexclusive right to Visual Image

Photography, Inc. ("VIP") to sell photos and images of all state tournament finals. In 2004, the WIAA contracted to grant the exclusive right to VIP to sell photos and images of all state tournament finals only. The contract was for a 1-year term and expired in 2005. In 2005, the WIAA contracted to grant the exclusive right to VIP to sell photos and images of all state

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tournaments including quarterfinals and semifinals. The contract was for a 3-year term and expired in 2008. Restrict ions on the sale of tournament images helped the WIAA limit its association to products and advertising consistent with the WIAA's mission. 33. In 2007, a controversy arose over the WIAA's right to limit the Wisconsin Newspaper

Association's member newspapers from selling photographs taken at tournament games through their website. The WIAA suspended its enforcement efforts that summer and decided that it would wait to see the outcome of similar disputes in other states. A similar dispute in Illinois was later settled when the Illinois High School Association agreed to rescind its exclusive-rights photography policy. I notified the media in about July of 2007 that the WIAA would not enforce its photography policy, and the WIAA did not enforce that policy at any time thereafter. 34. Effect ive with the 2009-2010 Media Policies, the WIAA changed its photography policy

consistent with the earlier suspension in July of 2007. 35. Wit hout the revenue from its exclusive contract partners, the WIAA would not be able to

afford to subsidize all of its recognized sports, thereby depriving its members and their student athletes of athletic opportunities. The WIAA would have to increase the cost of admission for tournaments, undermining its goal of making the events an affordable, family-friendly outing. The WIAA membership would also lose control over the message that was associated with their voluntary athlet ic association and its ability to promote the members' ideals as stated in the constitution. The WIAA would not be able to provide the cost-effective services to its members that it receives for free from WWWY. 36. I declare under penalty of perjury, under the laws of the United States, that the foregoing

is true and correct to the best of my knowledge.

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EXHIBIT A

EXHIBIT B

EXHIBIT C

EXHIBIT D

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN ______________________________________________________________________________ WISCONSIN INTERSCHOLASTIC ATHLETIC ASSOCIATION, AMERICAN-HIFI, INC. Plaintiffs, Case No. 09-cv-0155 v. GANNETT CO., INC., and WISCONSIN NEWSPAPER ASSOCIATION, INC., Defendants. ______________________________________________________________________________ AFFIDAVIT OF TODD C. CLARK ______________________________________________________________________________ I, Todd C. Clark, hereby declare, 1. I have personal knowledge of the facts stated herein and, if called upon to do so, could

and would testify competently thereto. 2. I am the Director of Communications for the Wisconsin Interscholastic Athletic

Association ("WIAA"), where I have been employed since 2000. The principle job responsibilities of the Communications Director include production and supervision of the Bulletin, membership publications and State Tournament souvenir programs; as well as coordination of media relations; Web site maintenance; State Tournament-related coverage; all public relations and sportsmanship efforts and initiatives; and assisting in marketing and sponsorship relationships. 3. The WIAA is a voluntary, unincorporated and nonprofit organization that seeks to

develop, direct and control an interscholastic athletic program to promote the ideals of its membership and opportunities for participation by its members. These opportunities include participation in post-season WIAA-sponsored, controlled, and funded sports tournaments. The 1

tournaments, which are separate from and in addition to regular season games, are the WIAA's major source of operating revenue. I have reviewed the WIAA's 2007-08 budget, and in that year the tournaments brought in $6,202,963 of the WIAA's operating revenues, which totaled $7,177,115. Ex. 1. 4. In 2004, I was informed by Douglas Chickering, the then Executive Director of the

WIAA, that Quincy Newspapers, Inc. ("Quincy"), the carrier of the WIAA's Boys and Girls Basketball Tournament and Hockey State Finals, could not afford to continue to pay the amount included in the rights agreement. After this, the WIAA began to explore other sources of revenue. 5. At that time, no television station carried games other than the Football State Finals

(which was carried by Fox), Boys and Girls Basketball State Tournaments, and Hockey State Finals (which were carried by Quincy). However, in some instances local community access channels would broadcast local games. The WIAA received no direct revenue from these local community access broadcasts. In 2005, I was unaware of any internet streaming of WIAA events by any party. Therefore, the only rights fees I am aware of the WIAA receiving at that time were from the transmission of videos of its tournament events for Football State Finals, Boys and Girls Basketball State Tournament, and Hockey State Finals. 6. In fact, in 2005 the vast majority of our sports were not carried by any media

organizations. The participants in the WIAA's volleyball and wrestling events had requested that these events be broadcast. We inquired whether our existing rights holders might be interested in broadcasting these events, but the existing rights holders expressed concerns regarding production costs and network preemption agreements and declined. In addition, Quincy had expressed to the WIAA an interest in expanding coverage of WIAA state hockey

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events to include state semifinal games, but ultimately decided not to make this expansion due to network preemption concerns and cost. 7. In 2005, we were approached by When We Were Young Productions ("WWWY") with

the idea of transmitting WIAA games over the internet. At no time prior to WWWY do I recall any media or production company expressing any interest in transmitting WIAA events via internet. Furthermore, I am unaware of any inquiries or requests to the WIAA by media organizations to transmit the then-underexposed and less visible sports such as cross country and tennis. The WWWY agreement therefore both provided new and needed revenue for the organization and an opportunity for the WIAA to promote less visible WIAA sports and participants. 8. Under the WWWY contract, WWWY has the right to transmit via internet all WIAA

Tournament Events except Football State Finals, the Boys and Girls Basketball State Tournament, and Hockey State Finals. In addition, WWWY has a separate distribution agreement with Fox, which allows Fox to air some of these games on FSN. Such games are then transmitted via internet on a delayed (as opposed to live) basis. Both live and delayed WWWY games are available to any person with a computer and internet access on wiaa.tv (http://wiaa.tv/), a web portal that allows access to WIAA events. As a result, although in 200405 no WIAA events were offered on the internet, in 2008-09 the WIAA web portal transmitted 82 live WIAA events on wiaa.tv and 182 offered on archived stream and DVD. Ex. 2. Of these events, approximately 134 were under the WWWY contract with WIAA, while approximately 48 were Football State Finals, Boys and Girls Basketball State Tournament, and Hockey State Finals. Ex. 2. WWWY paid $60,000 to the WIAA in 2008 for these rights, while Quincy paid $75,000 for its rights agreement, and Fox paid $20,000. Ex. 3.

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9.

The value of the contract with WWWY productions, however, far exceeds the amount

paid in royalties from WWWY. In addition to providing internet transmission of games, WWWY provides additional services to WIAA. These services include video production, audiovisual and graphics support for tournament games such as producing video programming for scoreboards at tournament sites. In addition, WWWY also provides web transmissions for mandatory WIAA sport rule meetings, which allows members, officials, and coaches to view these mandatory meetings at their convenience remotely thereby avoiding travel and added costs to member schools. The WIAA does not pay for these services. While I am not aware of the exact value, in my experience such services are costly, and, without WWWY, WIAA would likely not be able to afford them. The specific services that WWWY provides to the WIAA are: a. WWWY films, edits, and makes available on wiaa.tv, the WIAA's sports meetings, such as the WIAA's seasonal rule interpretation meetings, so that members and the public can access such meetings without attending in person. This saves members time and expense, and allows increased public access to WIAA information, thereby promoting the visibility of the WIAA, and supporting the marketing and branding of the WIAA. b. WWWY films, and makes available on wiaa.tv live, the WIAA's Annual Meeting, so that members and the public can access such meetings without attending in person. This saves members time and expense, and allows increased public access to WIAA information, thereby promoting the visibility of the WIAA, and supporting the marketing and branding of the WIAA. c. WWWY produces an annual video that compiles highlights of all state WIAA tournaments throughout the year.

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d. WWWY films, edits, and makes available on wiaa.tv, the annual scholar athlete award ceremony held in the spring in Wausau, Wisconsin. WWWY gives the award winners a DVD copy of the event. e. WWWY films, edits, and makes available on wiaa.tv, the annual WASC Spirit of Excellence Award ceremony. WWWY films interviews of the presenters which it includes in the final production of the award ceremony tape. WWWY helps promote the award ceremony at tournaments by showing the tape on the video board at various venues. f. At venues where the WIAA hosts championship tournaments, WWWY provides live game feed to the video board. g. WWWY produces highlight segments from other WIAA sponsored sectionals or tournaments, and does recaps with video from other WIAA state championship tournaments, that WWWY presents and feeds to the video board at WIAA championship tournaments. h. WWWY films starting line-up introduction videos and/or team videos that it shows on the video board at all tournaments that have video board capability. i. WWWY creates public service announcements that the WIAA and member schools can display on video boards at events and that are displayed on wiaa.tv. 10. In addition, in 2008 WIAA received $80,000 from a sponsorship partner, a portion of

which value comes from advertising in programming produced by WWWY. The overall amount associated with the contract with WWWY is therefore substantially above and beyond the $60,000 paid for the internet transmission rights. 11. In the fall of 2003, I developed the first WIAA Media Policies Reference Guide to

address ownership and distribution issues documenting our practices in a definitive written guide 5

that we could distribute to the media. This guide was discussed with the 2003 Media Advisory Committee, who reviewed and approved the policies and language. (The Media Advisory Committee was a standing committee made up of media representatives). The WIAA agreed at the Committee meeting that it would produce and disseminate the guide to all media on the WIAA mail list. 12. I have a close working relationship with the staff of WWWY, and since the WIAA

entered into a contract with WWWY in 2005, I have interacted with WWWY's owner, Tim Eichorst, or other WWWY staff on an almost daily basis. We regularly discuss the high school sports industry, communications issues related thereto, and production and distribution of WIAA sports events. 13. I worked with Mr. Eichorst to develop the affiliate program through which television

stations, web sites, other media outlets or production companies can become affiliates with WWWY for purposes of producing and distributing WIAA events. The WIAA did not have a method or resources for policing its media policies. Further, the WIAA was concerned about the quality of production of its events, and the images that were associated with its events. Through our relationship with WWWY, the affiliate program became the vehicle through which WIAA could monitor compliance with the WIAA's media policies, as WWWY acts as the policing agent for WIAA and ensures quality control. 14. I worked with Mr. Eichorst to determine the fee for affiliate production of an event that

WWWY declined to produce. I am familiar with other state's high school athletic association's policies and practices with respect to the production and distribution of games, including what they charge for video production or internet streaming.

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15.

The WIAA decided on a fee structure that requires a person or entity to pay $250 to live

internet stream a game produced with one camera, and $1,250 to live internet stream a game produced with multiple cameras. 16. This fee was determined based on a number of factors. First, it was consistent with or

lower than the fees charged by other state athletic associations. Second, we looked at the value of the production and the resources devoted to the production: a one-camera production with no announcer is much different then a multi-camera production, which usually involves a mobile television broadcast truck and announcer, and requires more resources at the venue itself (there is a cost to the host venue to have to accommodate the extra individuals and to provide power for the production truck which is much different than for an individual cameraperson). We also considered the medium, whether internet or TV, and how wide the distribution would be, whether local or world-wide. We determined that the multi-camera production lends itself to a wide internet distribution platform that people are able to see world-wide, whereas a single camera local PEG station production is shown only through the television medium for distribution to the local community, and is transmitted on a tape-delayed basis and not live. 17. To my knowledge, WWWY has not denied any request for affiliate production of pre-

State tournament events, and has not charged anything other than what the WIAA has determined to be the appropriate fee. 18. Since we first began discussing the role of WWWY in producing and distributing WIAA

events, I realized that internet streaming was an important technological development that would need to be addressed with respect to distribution of WIAA events. In fact, in my first Media Policies Reference Guide, I addressed internet streaming as a distribution platform. Since then, Mr. Eichorst and I have had regular discussions about internet video streaming as a distribution platform. 7

19.

As part of his plan to produce and distribute WIAA events, Mr. Eichorst had proposed

that internet video streaming would be one of the distribution platforms. To do this, we needed a vehicle through which we could launch and stream the video of WIAA events. We considered using the WIAA's own website, but did not believe the server would have sufficient bandwidth capacity to handle the streaming. Mr. Eichorst also had proposed that as part of WWWY's distribution efforts, he would create an online property containing the name WIAA for use in marketing and distributing WIAA tournament series and championship content. I agreed with Mr. Eichorst's position that it was important that the WIAA name be associated with the video distribution platform, and that the WIAA should be the destination point for its own events. 20. Based on these considerations, Mr. Eichorst and I created the web portal known as

"wiaa.tv," which is located at http://wiaa.tv/. A web portal presents information from diverse sources in a unified way, and provides a way for an organization to provide a consistent look and feel with access control and procedures for multiple applications and databases. The wiaa.tv web portal contains all live and archived videos of WIAA events for all WIAA recognized sports that WWWY produces, and all live and archived videos for WIAA meetings that WWWY produces, such as sports meetings (meetings for specific sports such as basketball or wrestling), rules meetings, press conferences, and the annual meeting. The portal contains the WIAA logo and a link to the WIAA website, clearly identifying its connection to and cementing its relationship with the WIAA. WWWY operates and manages the wiaa.tv web portal for WIAA as part of its contractual responsibilities and at no cost to the WIAA. 21. The WIAA has control over the content that is placed on wiaa.tv, including what is

displayed, when, and how. There is limited advertising on wiaa.tv, and the WIAA has control over the advertising on the website. Thus, if any video content or advertising were not consistent

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with the members' ideals and the mission of the organization, we would have the ability to restrict its display. 22. The WIAA has begun a pilot program to use the wiaa.tv portal to the benefit of WIAA

members by using the portal as a vehicle for member schools to live stream their own video of their own athletic events during the regular season at no charge to them. The agreement requires participating schools to stream all WIAA Tournament Series athletic events hosted by the participating school where and when available. Currently as part of the pilot program, to encourage schools to participate and use the portal, WWWY is paying pilot schools a minimum of $500 this year to implement the program. We anticipate the wiaa.tv portal to have great potential for our members. Another specific benefit of the portal is that it provides member schools with a safe haven to place its video content, and member schools do not have to worry about negative advertising or images associated with their video content. 23. In mid-2007, the WIAA suspended enforcement of its photography policy for

credentialed media that prohibited the sale of photographs taken at tournament games. 24. In 2008, the WIAA entered into a contract with Visual Image Photography, Inc., for a

term of five years. In that contract, the only item of "exclusivity" that the WIAA guarantees to VIP is with regard to "the sale of any products using images from Covered Events." Ex. 4 25. Effect ive with the 2009-2010 Media Policies, the WIAA changed its photography policy

to be consistent with the July 2007 enforcement suspension and the 2008 VIP contract. The 2009-2010 policy allows the sale or resale of still photography by WIAA-credentialed media. The policy prohibits the sale of "any products using images from WIAA Tournament Series events" without written permission from the WIAA. 26. The WIAA's Media Policies Reference Guide addresses issues of play-by-play and

"blogging." If media or websites wish to use transmissions of play-by-play descriptions of 9

action/statist ics of a WIAA tournament game, they need WIAA consent through transmission rights and fees. The Media Policies Reference Guide specifies that the media do not have to pay a fee for "live report updates" provided no play-by-play is done. Otherwise the media can apply for play-by-play rights and pay the appropriate fee. Live report updates are airing/streaming updates on results or general information about the competition or event, but contain no play-byplay description of live contests. The WIAA permits a "blog" (a contraction of the term "web log") where the blog is simply commentary of the athletic event or status updates. Blogs are not subject to rights fees, unless they are considered to be a live depiction of event action. The WIAA does prohibit "play-by-play," without payment of the fees, whether such play-by-play appears on a blog, website, or otherwise. Play-by-play is live and detailed, spoken or written, regular entries of descriptions, or depictions of the sports events as they are happening, or 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, so that it approximates a video or audio transmission that allows the recipient to experience the game as it occurs. A live transmission means inserting play-by-play at any point during the contest. (For example, play-by-play can not be posted until the completion of the game). 27. Fo llowing the 2008 Football State Finals, I discovered after the fact that two media

organizations, Madison.com (Wisconsin State Journal and Capital Times together) and the Milwaukee Journal-Sentinel, had engaged in live play-by-play blogging. Thus, I sent both organizations an invoice to pay the appropriate play-by-play fee. Neither media organization paid the fee. 28. This prompted discussions with the media about the blogging policies. In early

December of 2008, I had e-mail discussions about this issue with Adam Mertz, the Sports Editor of the Capital Times, who copied Robert Hernandez of The Wisconsin State Journal and other 10

editors in on the e-mail. I informed them that the WIAA was willing to work with the media to develop an agreement as to what would be permitted on a real-time blog from tournament series events. I pointed out that the issue of blogging had been discussed at the last two Media Days (an annual meeting that the WIAA hosted with members of the media to discuss media policies), and I felt confident that those discussions had led to a clear understanding of what the WIAA would permit. Mr. Mertz contacted other sports editors suggesting the "ball rests in our court now," and that they present suggestions for a definition of live blogging to the WIAA. I agreed to drop the invoices for the play-by-play with the expectation based on these discussions that the media would reach consensus on the issue and present those suggestions to the WIAA. 29. In mid and late December of 2008, I had discussions in person and by e-mail with Peter

Fox, the President of the Wisconsin Newspaper Association, about the blogging issue. I forwarded the transcripts of the blogs in question to him for his review, and informed him that the WIAA was willing to discuss a reasonable definition of the threshold for a live depiction of action in blogs. He agreed that Mr. Mertz and his colleagues were a good group to begin looking at the issue, and commented that he did not believe it would be "an easy subject to get a handle on." 30. I received no further communication from any editor or media organization on the issue

of blogging or play-by-play. They presented no proposal or draft policy to me to define the parameters of permissible blogging. Thus, the WIAA has not changed its policy, and the WIAA is comfortable based on the lack of input from the media that its blogging policy is understood and reasonable. The WIAA has, however, reduced the fee for play-by-play text ing to $30 at State tournament events and $20 for pre-State tournament events. I am aware of one other instance in the Fall of 2009 where someone blogged play-by-play. Upon my contacting the

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