And neither are afraid of going to court to explain why.
“Put simply, the decision below permits the PGA to privatize facts,” wrote lawyers for the two newspapers and over a dozen other media entities in a September 17, 2004 amicus brief filed to the US Supreme Court. “This is a case of profound significance precisely because the court of appeals recognized an ownership interest in what [the Supreme] Court has held cannot be owned.”
The court filing by the Washington Post, New York Times, and others was made in a lawsuit called Morris Communications v. PGA Tour involving allegations that the golf tour was illegally restricting live news coverage about golf scores. The filing was recently obtained by Legal Sports Report.
The 14-year-old brief — the second of two that were made in the case — touched on several issues relevant to today’s debate about the availability of live data fueling in-game sports wagering.
The 2004 lawsuit involving the PGA Tour also foreshadowed potential litigation in the near future about the permissibility of state laws restricting the availability of real-time data used for sports betting.
Overview of the golf data case
Morris alleged that the PGA Tour’s Real-Time Scoring System (RTSS) created an illegal monopoly on up-to-the-second golf scores. The PGA Tour defended itself against Morris’s antitrust lawsuit by evidencing the “valid business justification” behind the RTSS.
The case eventually landed at the US Court of Appeals for the Eleventh Circuit, one level below the Supreme Court.
The Eleventh Circuit, by a unanimous 3-0 vote, ruled in favor of the PGA Tour.
Media outlets file first brief to appeals court
The group of newspapers and media companies interjected themselves in the Morris Communications v. PGA Tour case as “amici curiae,” a phrase denoting someone who is interested in the outcome of a lawsuit but is neither a plaintiff nor defendant. Court rules usually allow such amici to file briefs in support of one side or the other.
The group — whose membership differed somewhat in the two briefs that were filed — minced no words about what was at stake in the golf lawsuit.
“This case goes to the heart of the media’s ability to timely report the news,” wrote lawyers for the collective on May 20, 2003, when the case was the Eleventh Circuit. “The district court concluded that the defendant PGA Tour unilaterally could restrict the use made by news organization of the most rudimentary facts of a sporting event — scores.
“The district court’s decision is predicated on the fundamentally incorrect premise that PGA Tour has a ‘property right’ in these facts.”
The brief also made frequent mention of freedom of the press and free speech, twin concerns that could cause “virtually limitless destruction of key First Amendment rights” if left unaddressed upon review.
The brief focused narrowly on golf scores too.
“PGA Tour does not have a property right in golf scores,” stated the brief. “PGA Tour cannot have a private property right in something that is owned by the public.”
Journalism groups file second brief to Supreme Court
After losing before the Eleventh Circuit, Morris filed an appeal to the Supreme Court.
The media-newspaper-journalism collective followed and filed another brief at the Supreme Court level.
The brief primarily focused on broad issues outside the realm of sports.
“The question presented in this case is whether a newsmaker may privatize non-copyrightable facts that are already in the public domain,” wrote lawyers for the group. “This case may arise in the context of the sports industry, but the Eleventh Circuit’s decision is not so limited.
“By its terms, the court’s decision would allow any newsmaker to condition access in an effort to limit or manipulate the reporting of political, financial, and other events of public importance.”
The brief urged the Supreme Court to review the case, claiming that the lower court’s decision “is contrary to the freedom of information that lies at the heart of a free press.”
The Supreme Court declined Morris’s appeal, which ended the case.
Preview of litigation to come?
Last week, the PGA Tour “aligned” itself with the NBA and Major League Baseball in “support[ing] the regulation of sports betting.”
If such alignment includes lobbying for state laws restricting the free flow of real-time sports data, the issues flagged in the two amicus briefs from the Morris v. PGA Tour lawsuit over a decade ago would likely be in the forefront again.
Indeed, multiple statehouses across the country — including New York, Connecticut, Illinois, Missouri, and Kansas — are currently considering draft sports betting bills containing clauses that would place limitations on the availability of real-time sports data for betting purposes. Whether such limitations could spill over to news reporting or fan chatter — in the form of media credentialing or small print added to the back of tickets — remains to be seen.
To date, no state has passed a law that includes restrictions on real-time sports data.
But if a state does, there could be a line of plaintiffs ready to challenge the new law in court.
Examples include sportsbooks unwilling to acquiesce to mandatory data purchases from a sole provider and disfavored sports data companies. A journalist unable to partake in live reporting could be a potential plaintiff too.
And if that happens, look for the Washington Post, New York Times, and other journalism outlets to align themselves for a court filing again.