Abstract
In 2009, the National Hockey League (“NHL”), National Football League (“NFL”) and National Basketball Association (“NBA”) became the first major North American sports leagues to announce social media restrictions. The major sports leagues have similar social media policies, the broadest of which extends longstanding copyright infringement warnings to social media websites like Facebook and Twitter. The more narrow social media restrictions limit only playby- play uploading by players, personnel and coaches, while the broader restrictions purport to prohibit real-time uploading of play-by-play game approximations by all Internet users. The NFL, which has always barred play-by-play descriptions of games in progress, extended that ban to social media platforms, requesting that social media play-by-play game accounts be time delayed and limited in amount, in order to protect the game coverage of accredited licensees. The leagues’ request that social media platforms not host game time play-by-play approximations raises questions regarding sports leagues’ enforcement of their intellectual property rights. Given that billions of social media users around the globe are able to upload from virtually any public sporting event or broadcast using mobile devices, the sports leagues’ social media policies face issues of enforceability. Contract and property law supply the legal framework for leagues’ authority to control the uploading capabilities of sports arena attendees. Employment law forms the legal backbone of the leagues’ uploading restrictions covering players, coaches, officials and league personnel. Yet, by purporting to extend traditional copyright law to social media sites, and by stating that play-by-play approximations might infringe accredited rights holders, the new restrictions potentially reach millions of independent users. As the sports leagues may face challenges as to whether social media restrictions are legal and enforceable, the leagues might look to copyright law through theories of secondary liability and the Digital Millennium Copyright Act (DMCA). Alternatively, the leagues can look to state law, with claims tailored to navigate around the so-called “hot news” preemption doctrine.