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

Doc. 26 Att. 9

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN ______________________________________________________________________________ WISCONSIN INTERSCHOLASTIC ATHLETIC ASSOCIATION and AMERICAN-HIFI, INC. Plaintiffs, Case No. 09-cv-0155 v. GANNETT CO., INC., and WISCONSIN NEWSPAPER ASSOCIATION, INC., Defendants. ______________________________________________________________________________ FIRST AMENDED COMPLAINT ______________________________________________________________________________ Plaintiffs Wisconsin Interscholastic Athletic Association ("WIAA") and American-HiFi, Inc. by and through their attorneys submit the following amended complaint for declaratory and other relief against Defendants Gannett Co., Inc. ("Gannett") and Wisconsin Newspaper Association, Inc. ("WNA") as follows: INTRODUCTION 1. The WIAA organizes and sponsors statewide high school athletics tournaments

that attract widespread public interest and media attention in Wisconsin and that play an important role in many participants' athletic experience. Along with policies governing spectator and participant activities during these tournaments, the WIAA issues media guidelines in order to protect athletes, ensure smooth operation of the tournaments, and generate revenues through licensing. As a voluntary association, the WIAA largely depends upon revenue generated from its tournament events, including licensing the rights to broadcast or transmit these tournament games, in order to fund its operations and organize these tournaments.

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Dockets.Justia.com

2.

Defendants in this action seek the absolute right to stream live action of WIAA-

sponsored tournament games over the Internet and, subsequently, to post these WIAA-sponsored games on their websites, without obtaining a license or otherwise complying with the WIAA's media policies. Defendants have indicated that they will pursue legal action to protect what they believe to be their rights if the WIAA does not change its licensing policy. 3. In response to the threat of litigation, WIAA filed a declaratory judgment action

in state court. Defendants removed the action to this Court and filed counterclaims seeking declaratory and injunctive relief against the WIAA's licensing and media policies. The WIAA has filed this amended complaint in order to focus the litigation on the only actual federal controversy. Accordingly, WIAA seeks a declaration that the WIAA has control over the right to transmit WIAA-sponsored tournament games, whether live or delayed, and that the WIAA has the right to grant an exclusive or non-exclusive license to transmit WIAA-sponsored tournament games and to otherwise require compliance with WIAA's reasonable media policies. PARTIES 4. WIAA is a nonprofit, voluntary and unincorporated association with its principal

place of business at 5516 Vern Holmes Drive, Stevens Point, Wisconsin 54481. Its members include public and private senior high schools, public and private middle and junior schools, statewide schools, specialty schools, and religious and independent schools in the State of Wisconsin. WIAA organizes and directs interscholastic athletic competitions and programs for the benefit of its members, the participating students, and the community and public at large. 5. American-HiFi is a Wisconsin corporation with its principal place of business at

501 Moravian Valley Road, Waunakee, WI 53597, and does business in part as When We Were Young Productions (WWWY). WWWY has signed an agreement with WIAA to produce and

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distribute WIAA-sponsored tournament events, including live streaming of tournament games over the Internet. WWWY has been joined in this action as a necessary party in light of its interest in the subject of the litigation. See Exh. A. 6. WNA is a non-stock organization organized in the state of Wisconsin, with its

principal place of business at 1901 Fish Hatchery Road, P.O. Box 259837, Madison, WI 537259837. WNA is an association of daily, weekly, and bi-weekly newspapers in Wisconsin whose members frequently report on Wisconsin high school athletics, including WIAA-sponsored tournaments. 7. Gannett is a Delaware corporation with its principal place of business at 7950

Jones Branch Drive, McLean, VA 22107. Gannett publishes newspapers across the United States, including 10 daily newspapers in Wisconsin and approximately 19 non-daily newspapers. Many of these newspapers frequently report on Wisconsin high school athletics, including WIAA-sponsored tournaments. JURISDICTION AND VENUE 8. This Court has subject matter jurisdiction over WIAA's declaratory judgment

claim pursuant to 28 U.S.C. § 1331 because substantial, disputed questions of federal law underlie Defendants' claim to possess the right to transmit WIAA-sponsored tournament games over the Internet and/or to post Internet streams of such tournament games on their websites without obtaining a license or otherwise complying with the WIAA's media policies. Through their attorneys, Defendants have written the WIAA claiming such a right under the United States Constitution. See Exhs. B & C. Furthermore, Defendants have filed counterclaims in this Court seeking relief under the United States Constitution and various federal statutes, including 42 U.S.C. § 1983. The WIAA disputes that any federal constitutional or federal statutory provision

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grants Defendants such a right or bars the WIAA from establishing reasonable policies governing the transmission of the tournament events it organizes and sponsors. 9. As described in this Complaint, jurisdiction over WIAA's claim for declaratory

relief is proper pursuant to 28 U.S.C. §§ 2201-2202 because an actual controversy exists between the parties regarding Defendants alleged right under federal constitutional and federal statutory law to transmit WIAA-sponsored games over the Internet. Defendants' threatened claims and actually asserted counterclaims allegedly arise under federal law, giving this Court the authority to declare the rights and legal relations of the parties. 10. This Court may exercise personal jurisdiction over Defendants because they

conduct substantial business in this district and have consented to personal jurisdiction in this Court. 11. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2) because a

substantial part of the conduct and events giving rise to the claims occurred in this judicial district. STATEMENT OF FACTS The WIAA and WIAA-Sponsored Athletics Tournaments 12. The WIAA seeks to organize, develop, promote, and administer an interscholastic

athletic program in Wisconsin for the benefit of its member schools, the student athletes, local communities, and the public at large. To that end, the WIAA organizes regional, sectional, and state athletics tournaments for a wide variety of sports. The WIAA also publishes policies governing these competitions that seek to promote sportsmanship, protect athletes against exploitation, create opportunities for participation, and provide consistent standards for athletes, spectators, and the media.

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13.

The vast majority of public and private high schools in Wisconsin voluntarily

belong to the WIAA and participate in many of its 25 separate athletics tournaments. Each of these tournaments provides important opportunities for participating athletes and generates significant interest among some members of the public, whether because of their relationship to participants or their general interest as spectators in the entertainment value of athletic competition. In particular, WIAA-sponsored football, basketball, and hockey tournaments generate widespread public interest and media attention throughout the state. 14. The organization, administration, and promotion of this athletics program requires

significant funding. Although member dues provide some WIAA funding, revenue generated at WIAA-sponsored state tournaments through ticket sales and licensing fees constitutes the vast majority of the WIAA's annual budget. WIAA-sponsored football, basketball, and hockey tournaments play an especially important role in generating revenue: the widespread interest in these three tournaments generates significant gate receipts through public attendance, and the audience for media broadcasts of these three tournaments permits the WIAA to generate revenue through license fees on broadcasts of those games. Revenue from these three sports constitutes the majority of the WIAA's annual revenue stream. 15. Revenue received from these tournaments is used to fund WIAA operations,

including the administration and organization of all 25 state tournaments and the leasing of facilities needed to hold the tournaments. The WIAA also transfers a portion of its tournament revenue to host schools who provide facilities or other necessities for certain phases of each tournament. 16. The WIAA has expended significant time, energy, and resources in developing,

organizing, administrating, and promoting its WIAA-sponsored tournament events since 1896, or

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more than one hundred years. Through consistent administration and promotion, including numerous awards ceremonies, publications, and other promotional opportunities surrounding the tournaments, as well as through the development of rigorous standards for athletics, spectators, and the media, WIAA-sponsored tournaments have grown into popular and successful events. WIAA-sponsored tournaments now involve thousands of student athletes and draw more than a million total paying spectators, in addition to the large number of spectators who view or listen to transmissions of tournament events. 17. The WIAA operates independently of the state Department of Public Instruction,

and the WIAA does not remit tournament revenue to the DPI or any state general revenue fund. 18. In order to facilitate administration and control of tournaments and promote

sportsmanship among coaches, athletes, cheerleaders, and fans, the WIAA publishes spectator and crowd conduct policies prohibiting offensive banners, excessively loud noisemakers, alcohol and tobacco products, and other potentially disruptive items or behaviors. Spectators and participants are expected to abide by these policies as a condition of entry or participation. See Exh. D. 19. Spectators may record live action from their seats on personal recording devices

but may not make any commercial use of a recording without written consent of the WIAA. WIAA's Media Policies 20. The WIAA has also published policies governing the coverage of WIAA-

sponsored tournament games by the media, including newspapers, television, radio, and Internetbased media. These policies apply as appropriate to regional, sectional and state WIAAsponsored tournament games but do not apply to other competitions, including regular season games held at member schools. See Exhs. D & E.

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21.

The WIAA's media policies govern a range of topics including, inter alia, the

issuance of credentials and parking permits, the provision of communication lines (such as telephone lines, high-speed lines and wireless connections), potential interference with spectator viewing, and availability for post-game interviews. These policies generally apply to all credentialed media reporting from the tournament games, though members of the media may also attend any game as a member of the general public, subject to the same policies as the general public. 22. The WIAA permits any member of the media to report on any tournament event.

Such reporting may include use of up to two minutes of taped footage of any tournament event. However, members of the media who seek to transmit the event itself, whether live or tape delayed, must obtain a license from the WIAA or one of its contractual partners, such as WWWY, and, if granted, must pay a reasonable license fee and agree to abide by WIAA broadcast and media policies. 23. As with other forms of transmission and broadcast, the WIAA requires media

outlets seeking to stream live tournament action over the Internet, whether instantaneously or in delayed form, to obtain a license and pay a license fee. Media personnel may request this permission from WIAA's contractual partner WWWY, and as a condition of the license, must pay the requisite license fee and agree to abide by WIAA's media policies. 24. WWWY has provided substantial consideration to WIAA in exchange for its

rights over Internet streaming of WIAA-sponsored tournaments and has agreed to provide Internet coverage for tournament events from all 25 WIAA-sponsored tournaments. 25. Fees generated through the granting of transmission and broadcast licenses,

including over the Internet, serve the important purpose of generating revenue for the WIAA.

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The WIAA's media policies also serve other important functions, including ensuring the smooth operation of the tournament, protecting participants from unauthorized commercialization and unwanted association with inappropriate advertising, and promoting the transmission and broadcast of all WIAA tournaments in addition to the most popular sports. 26. WIAA's media policies do not restrict the ability of Defendants to report on the

games in their newspapers or on their Internet sites. Defendants may report the outcome of the games, describe events that occur during the games, and provide the public with any factual information relating to the games, so long as that "report" does not include live play-by-play coverage or transmission of live game action, including through Internet streaming. Defendants may also use any photographs taken at the games as part of their reporting. 27. Under WIAA's media policies, the public has had access to multiple sources of

information about WIAA-sponsored tournament events, including television broadcasts, radio broadcasts, live Internet streaming, newspaper reporting, and other sources. 28. WIAA believes that its policy of requiring those who wish to transmit WIAA-

sponsored tournament action over the Internet to request a license and to comply with WIAA's media policies is necessary in order to protect its revenue sources, including both direct revenue from Internet transmission licenses and the value of its television and radio licenses. Defendants' unlicensed transmission of WIAA-sponsored tournament action would compete directly with the transmission of WIAA's licensees and would lessen the value of all of WIAA's broadcast and transmission licenses, including Internet, television and radio licenses. The Current Dispute 29. On October 31, 2008, shortly before the WIAA-sponsored state football

tournament began, WNA informed WIAA through WNA's attorneys that WNA rejected

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WIAA's media policies and its arrangement with WWWY, citing constitutional objections. See Exh. B. 30. On November 8, 2008, the Appleton Post-Crescent, a newspaper owned by

Gannett and a member of WNA, live streamed a WIAA-sponsored tournament game between Appleton North High School and Stevens Point Senior High School without permission of the WIAA or WWWY. On information and belief, the Appleton Post-Crescent streamed at least three other WIAA-sponsored high school football tournament games in October and November 2008 without permission of the WIAA or WWWY. On information and belief, the Athletic Directors of the host schools were unaware of this streaming activity. 31. On information and belief, Gannett requested permission to stream additional

WIAA-sponsored tournament games in November 2008. On information and belief, Gannett was told that they would be able to stream those games upon payment of the rights fee and agreement to abide by WIAA media policies. Gannett did not agree to those terms. 32. Subsequent letters from WNA's attorneys indicated that the legal dispute

remained unresolved, and that WNA would not agree to abide by WIAA's current media policies or arrangement with WWWY. WIAA therefore filed this declaratory judgment action to clarify the legal rights of the two parties. CLAIM FOR RELIEF (Declaratory Relief) 33. 34. WIAA incorporates Paragraphs 1 through 32 as if fully set forth here. WIAA contends that it may require Defendants to obtain a license in order to

transmit game action from WIAA-sponsored tournament events over the Internet, whether live or tape delayed, and that it may require Defendants to abide by WIAA's media policies.

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Defendants deny this and assert among other claims that WIAA's media policies violate their rights under the First and Fourteenth Amendments to the United States Constitution. 35. WIAA has the right to control the transmission of its WIAA-sponsored

tournament games over the Internet, whether live or tape delayed, through its licensing requirement, including the payment of a reasonable license fee and compliance with reasonable media policies. The WIAA organizes, administers, promotes and controls the tournaments at issue, and the WIAA depends heavily on the revenue generated by these tournaments through gate receipts, license fees, and the value of the broadcasting contracts entered into with its broadcasting partners. As a voluntary organization, WIAA also has the right to ensure that its tournaments function smoothly and that its member schools and participating athletes are protected against commercial exploitation or other potential consequences of unlicensed broadcasts. Furthermore, WIAA's media policies do not restrict the ability of the Defendants to report on WIAA-sponsored tournaments. 36. Pursuant to the federal declaratory judgment statute, this Court should declare: (1)

that the WIAA controls the right to transmit WIAA-sponsored tournament games over the Internet; (2) that the WIAA has the right to grant an exclusive or non-exclusive license to transmit WIAA-sponsored tournament games; (3) that the WIAA may require payment of a licensing fee and compliance with the WIAA's media policies as a condition of any license to transmit WIAA-sponsored tournament games; and (4) that WIAA's current policies concerning the Internet transmission of its WIAA-sponsored tournament games do not violate Defendants' rights under the First or Fourteenth Amendments to the United States Constitution, or any other Constitutional, statutory, or other legal doctrine.

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PRAYER FOR RELIEF 37. WHEREFORE, WIAA requests that the Court: A. Declare (1) that the WIAA controls the right to transmit WIAA-sponsored

tournament games over the Internet; (2) that the WIAA has the right to grant an exclusive or non-exclusive license to transmit WIAA-sponsored tournament games; (3) that the WIAA may require payment of a licensing fee and compliance with the WIAA's media policies as a condition of any license to transmit WIAA-sponsored tournament games; and (4) that WIAA's current policies concerning the Internet transmission of its WIAAsponsored tournament games do not violate Defendants' rights under the First or Fourteenth Amendments to the United States Constitution, or any other Constitutional, statutory, or other legal doctrine. B. C. Award WIAA reasonable fees, costs and expenses incurred herein; and Award WIAA all other relief the Court deems just and equitable.

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Dated this 13th day of April, 2009.

Respectfully submitted, PERKINS COIE, LLP By: /s/ John S. Skilton 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

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