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The NCAA: Tone Deaf and Legally Challenged

There has been a predictably strong media reaction to the ejection of Brian Bennett, a blogger for the Courier-Journal from the NCAA baseball super-regional game between Louisville and Oklahoma State on Sunday, and I don't think anybody would be surprised to find the NCAA on the receiving end of most of the reaction.

Mark Story of the Herald-Leader has a column today in which he stands up for his colleague down I-64:

What the NCAA is doing is opening a hornet's nest of complicated issues. Included are possible First Amendment ramifications as well as issues over what restraints sports-sanctioning bodies can force on media members as a condition of being granted a credential to cover a game.

I'm not an attorney, nor do I play one on TV, but I don't see how any group has the right to limit someone from posting their opinions/views on what has already happened in a sporting event, even if it happened only seconds before and the game is still going on.

Story gets this exactly right, in my opinion.

One thing I think I should tell the NCAA right now -- as newspapers go, the Courier-Journal is absolutely among the most litigious in the country.  I personally don't care much for the C-J, but they are fearless when it comes to attacking those who try to hide information from them, and they are extremely successful in the cases they bring.

So will the C-J sue the NCAA?  Well, the Courier itself doesn't know:

An attorney for the newspaper, Jon Fleischaker, said it is considering its options and hasn't decided whether to sue the NCAA.

"I will tell you I have gotten calls and e-mails from people around the country supporting The Courier's position and amazed at what the NCAA is trying to do," Fleischaker said.

Having read a lot of statements from Fleischaker over the years, this one is pretty weak beer.  I would say that, based on this, the C-J is leaning against bringing a suit.  But if the public outcry continues to mount, the pendulum could swing back the other way.

There is no question that the NCAA, through it's member institutions, may restrict dissemination of events and accounts by forbidding patrons the use of cell phones or other recording/communication devices as a condition of entering the event without proper credentials.  This is a right that all private property owners enjoy.  From this standpoint, the NCAA was unquestionably within its rights to revoke the press credentials of Bennett.

But the insidious, and I believe actionable, part of this debacle is the attempt by the NCAA to define its copyright as extending to the duration of the game.  In addition, there is the fact that the schools and stadiums in question almost always fall under the rubric of a public facility, and is therefore a place where there is a nexus between public and private ownership.  This is where the First Amendment could legitimately be raised.

Me, this is one case where I hope the C-J sues.  I believe the NCAA is way out of line on this, and it is certainly running afoul of public opinion.  If this story continues to have legs, the public relations damage to and media pressure on the NCAA will continue to mount:

An NCAA spokesman said the following via e-mail: "Reporters covering our championships may blog about the atmosphere, crowd and other details during a game but may not mention anything about game action. Any reference to game action in a blog or other type of coverage could result in revocation of credentials. This pertains to all NCAA championships. Live coverage is considered a protected right that has been granted to CBS as part of a bundled rights agreement. As part of that agreement, ESPN has shared exclusivity on Internet rights for the 22 championships it broadcasts."

The NCAA press office did not return numerous phone calls and e-mail seeking elaboration on the statement, or responses to the questions raised by the newspaper whose reporter was booted.

Good luck with the "Wall of silence" thing, boys.  I have a feeling you are going to be talking about this a lot more than you want to in the coming days.

If a lawsuit does come to pass, it could help clear up some of the nagging legal issues surrounding blogging and what is and is not protected under copyright law and the First Amendment.  Bloggers have been grappling with these issues for years, and the courts have provided very little in the way of clarity.  I keep hoping for a case (or cases) that will remove some of the ambiguity from these issues, and I expect they will be forthcoming as the popularity of sports blogging continues to grow.

A really well-thought out article can be found at On Sports.

Update [2007-6-12 11:43:20 by Truzenzuzex]:  It seems the NCAA's own blog doesn't agree with the policy.

Update [2007-6-13 8:41:41 by Truzenzuzex]:  Matt Mosely at Barad Dûr has an interview up with Brian Bennett, the C-J blogger who was thrown out of the game (Hat tip: Seth C at Double T Nation).

The story has now made it across the pond to the UK.

Troy Johnson at the Columbus Ledger-Inquirer weighs in and takes the NCAA to task.  The New York Sportswriter's blog also takes on the issue, and says (tongue firmly n cheek) that the NCAA blog author will probably be fired for his dissenting take.

Swampster at Orange and Blue Hue finds a precedent (STATS vs. NBA) that would seem to support the Courier-Journal's position, big time.

The Courier-Journal's Eric Crawford weighs in.

Every Day Should Be Saturday says the next step is cell phone jammers at the stadium!

How could I have missed Deadspin's post on the subject?

Update [2007-6-15 8:33:31 by Truzenzuzex]:   Peter Schmuck (what a moniker, the poor guy) has a good piece in the Baltimore Sun agreeing with me that getting some court guidance on this issue would be a good thing.

The Columbia Tribune says the NCAA rule on blogs does not compute.

The Fresno Bee weighs in with thoughts.

The Seattle Post-Intelligencer takes a broader look at the abuse of intellectual property within the sports world.