Are Sports Scores in the Public Domain?
 
May 1, 2001
 
George D. Gabel- Jacksonville

Morris Communications Corp. v. PGA Tour, Inc., 117 F.Supp. 2d 1322 (M.D. Fla. 2000), is the first reported decision to address how the publication of news via the Internet may be shaped by antitrust and intellectual property law. In denying a Motion for Preliminary Injunction, the Court in Morris noted that the development of a complete factual record and “an examination of both bodies of law and their proper application in a rapidly changing world” will be necessary to resolve the underlying controversy between the parties.

Morris Communications Corporation is in the business of publishing news, in both the traditional print format and electronically via the Internet. As part of its news coverage, in 1996 Morris began publishing information about golf tournaments on its electronic newspapers. The most popular feature of its electronic coverage of these golf tournaments was its publication of real-time golf scores.

As the term suggests, real-time golf scores are the scores of individual golfers published contemporaneously with, or as near as possible to, the actual pace of competition at a golf tournament. These scores are collected at each of the 18 holes on the golf course, typically by volunteers organized by the tournament’s promoter. The scores are then transmitted, through wireless or other communication devices, to several locations including the media center located on the tournament premises. Upon being published in the media center, the golf scores can then be “re-keyed” by media organizations into their own computers for further dissemination, including publication via the Internet. Although some scores are also published on television, radio, and leaderboards on the premises, the media center is the only location where the “official” scores for all the competing golfers are continuously updated and available. This is particularly true during the first two days of most golf tournaments when there is normally no television or radio coverage.

Cable News Network/Sports Illustrated (CNN/SI) was impressed with Morris’ electronic coverage of golf tournaments and contracted with Morris to provide (i.e., syndicate) real-time golf scores. In 1999, this coverage included all of the professional golf tournaments promoted by the PGA Tour, Inc. Morris’ attempts to cover the PGA Tour in real-time, however, ran headlong into media restrictions being imposed by the PGA Tour.

The PGA Tour, like other promoters of sports events, regulates the media coverage of its golf tournaments. These regulations, which typically concern television, photography and print media, are contained in press credentials which are issued by the PGA Tour for each tournament. By obtaining a press credential, a news organization is permitted access to the tournament premises, including access to the media center, to report on the tournament. The relationship between the media and the PGA Tour, as the court in Morris noted, is mutually beneficial: “the media are better positioned to satisfy the public’s demand for golf-related information, and [the PGA Tour] enjoys enhanced publicity, which in turn generates greater demand for its golf tournaments and related goods and services.”

In January 1999, however, for the first time, the PGA Tour promulgated restrictions concerning the Internet. In particular, the PGA Tour restricted access to the media center upon the condition that all “[s]coring information appearing on a site may be provided no sooner than 30 minutes after the actual occurrence of the shots.” The admitted purpose of this regulation was to allow the PGA Tour to have the first opportunity to publish real-time scores on its own Web site.

The PGA Tour prohibits the use of wireless communication devices on the golf course by spectators or the media. Golf scores cannot, therefore, be collected and reported directly from the golf course by any party other than the PGA Tour and its volunteers. Moreover, any such independent effort to collect golf scores would unnecessarily duplicate the efforts of the PGA Tour’s volunteers. In short, access to the media center is essential for news organizations that wish to report “official,” real-time golf scores. The practical effect of the PGA Tour’s new restriction on Internet publication of golf scores was that reporters in the media center would be required to delay their reporting of golf scores by 30 minutes after the score’s publication in the media center.

Morris objected to the new regulation. After some discussion between the parties, the PGA Tour changed the regulation to add the phrase “or after the time such information is legally available as public domain information if sooner than 30 minutes after the actual occurrence of the shots.”The term “public domain” was a key issue in the parties’ discussion, because the federal appeals court in New York had held in a case involving the NBA that basketball scores were facts that were in the public domain. National Basketball Ass’n v. Motorola, Inc., 105 F.3d. 841 (2d Cir. 1997). Morris believed that golf scores, like the basketball scores at issue in Motorola, are facts that are in the public domain as soon as they occur. Consequently, after its discussions with the PGA and the PGA Tour’s amendment of its press credentials, Morris continued to publish real time golf scores on its Web site and to provide scores to CNN/SI and other news organizations.

In January 2000, however, the PGA Tour announced new “Online Service Regulations.” The new regulations provided that “no scoring information may be used by, sold, given, distributed or otherwise transferred to, any party other than the Credentialed Site in any manner whatsoever, without the prior written consent of PGA Tour.” The PGA Tour thus allowed Morris to publish real-time scores on its own Web site, but prohibited the syndication of this information to third parties if not part of the Credentialed Site. Morris again objected to the new regulation; however, discussions between the parties to resolve their differences were unavailing.

In October 2000, Morris filed a lawsuit that sought, among other things, a preliminary injunction to prevent the PGA Tour from restricting the publication of real-time golf scores via the Internet. The lawsuit is based upon several antitrust theories; in a nutshell, Morris alleges that the PGA Tour has monopoly power over PGA Tour golf tournaments and has used that power to stifle competition in the separate markets for the publication and syndication of real-time golf scores via the Internet. In response, the PGA Tour argues that it has developed, at considerable expense, a system to collect and report golf scores. The PGA Tour argues that it enjoys a property right in its scoring system and the scores gathered through that system, and that its regulations restricting the syndication of real-time golf scores are a reasonable safeguard against would-be free riders seeking to capitalize on their investment.

The court denied Morris’ request for a preliminary injunction finding that Morris had not made a sufficient showing to justify the extraordinary relief requested at that preliminary stage. The critical issue for the court was whether there was a legitimate, pro-competitive reason for the PGA Tour’s restrictions. In particular, the court was concerned that the PGA Tour may have a “hot news” property right as described in the seminal case of International News Serv. v. Associated Press, 248 U.S. 215 (1918), in which Supreme Court recognized a news publisher’s right in time-sensitive information for which the publisher had expended resources to collect if another party’s publication of that time-sensitive information could cause the publisher to stop collecting it (thereby depriving the public of access to the information itself). If the PGA Tour has such a “hot news” property right in golf scores gathered during PGA events, it may then have a legitimate, procompetitive reason for restricting competitors from capitalizing, or free riding, on any investment in the system used to gather the scores.

In this regard, the court identified two issues that will require further development by the parties in the course of litigation. First, the court described the limits of the “hot news” property right:

A limited threat of free riding does not necessarily give rise to a “hot news” property right because, as the Motorola court noted, free riding only becomes detrimental to competition when ‘the ability of other parties to free-ride on the efforts of the [defendant] would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.

The issue here, simply put, is whether the PGA Tour would continue to collect and publish golf scores at its tournaments if Morris were permitted to then disseminate this information. The court determined that this issue could not be resolved at the preliminary stage of the case without the benefit of a complete factual record.

Second, the court observed that the PGA Tour’s restrictions, as a whole, may evince an anticompetitive intent:

Similarly, while the reasonableness of the Defendant’s rules prohibiting unauthorized use of wireless communications devices on the golf course might affect a determination regarding the asserted anticompetitiveness of Defendant’s conduct, that too will require a more complete record than is currently before the [c]ourt.

Arguably, the PGA Tour’s restrictions are broader than necessary to protect any property right that the PGA may have in its scoring system and the scores collected with that system, and may eliminate competition unfairly in the market for real-time golf scores.

This case stands at the intersection of antitrust and intellectual property law as applied to the publication of news on the Internet. It raises important considerations about the control of news that extends beyond the reporting of facts from sporting events. Who will be responsible for reporting the news? Will it be traditional news media organizations which, since the foundation of our country, have a constitutionally recognized and protected role in our democracy for reporting the news, or will it be the news making entity itself that is allowed to self report and at the same time exclude traditional media? Would such a system lead to censorship and controlled dissemination of facts?

The PGA Tour has set itself up as a publisher via the Internet, as have many sports and other organizations, and directly competes with traditional news media with respect to reporting news about its own golf tournaments. Should the PGA Tour be successful in this case in preventing Morris from syndicating scoring information from the media center, the ripple effect may be far-reaching and could forever change the landscape of news reporting on the Internet and traditional media. A political party, for example, might require news organizations to agree to time and content restrictions as a condition of reporting news from that party’s national convention.

Although the court in Morris did not award a preliminary injunction, it acknowledged the seriousness of these questions and cautioned: “It bears repeating that the [c]ourt does not by its opinion foreclose the possibility that Morris might ultimately succeed in establishing an antitrust violation. There is a difference, however, between success at trial and a success in meeting the standard for a preliminary injunction.” Discovery is underway and the case is set to be tried in June 2002.